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We risk a long haul health crisis that court orders won’t resolve

By Kamotho Waiganjo | February 18th 2017

There can be no greater example of the challenges posed by a mechanistic application of the law than the ongoing imbroglio of the medic’s strike. If one puts aside the public interest in the matter, which obviously favours the doctors, there is no doubt that the doctors’ legal position is weak on merits. Strictly, as a matter of law, there was nothing the court did by sentencing the doctors’ union leaders to prison to purge their contempt of the court.

The court had issued an order, however defective one may argue it was, and union leaders refused to obey it. That, automatically opened them to a charge for contempt. What, pray was the court to do in those circumstances? By way of background, the beginning point is a recognition that the doctors’ strike is based on a constitutionally defective Collective Bargaining Agreement (CBA) that their union signed with the Ministry of Health in 2013.

By the time the doctors were signing this CBA, the Constitution had already been promulgated and health services had already been devolved. The medics really had no business signing a CBA with the national government, which was no longer their employer. The national government has no legal capacity to implement the CBA, even if it had the will or the funds to do so. In an ideal environment, the medics should have signed the CBA with the counties who were their new employers.

Indeed many have noticed that even the contempt case was filed by the Council of Governors, as the doctors’ employers, since it was the council members whose subjects were being prejudiced by the strike. But in a country where sober discourse is viewed through partisan lenses, this aspect is seen as a distraction. We need a villain and the Jubilee government is a logical destination. In view of the clear legal position on default by the doctors’ union, what was the court to do?

The approach of the court was to apply the law mechanically and closing its eyes on the public interest and social ramifications of its decision. This application of the law not only failed to cure but actually exacerbated the crisis which would have resulted in a disaster were it not for the pragmatism of the Court of Appeal. Apart from strict application of the law, what ought to be taken into account in such disputes?

Firstly, any institution seeking a solution of such a crisis must recognise certain key realities. As related to health, we live in a country where the vast majority of the population depends on public health facilities. The patient/doctor ratio is highly uneven. Doctors and their long suffering patients have generally paid the price for poor investment in public health and many of them are at breaking point. To this, add the reality that doctors have options, unlike other professionals who cannot economically sustain a strike for long.

What these mean is that the solution to doctors’ grievances must take delicate negotiating with them as equal parties on the table. That negotiating must address the devolved health reality so that the right parties, primarily county governments, are on the negotiating table. It must also address the financial responsibilities of the national government, which so far has been reluctant to fully devolve financial aspects of the health function.

As for the doctors, they must accept the realities of devolved health. Granted, at some point we, as a nation need a serious discussion on whether health should be re-centralised; this is hardly an issue to be discussed purely by doctors and their employers, with the public as an observer. But until that happens, we must work within the confines of the Constitution, which only knows county governments as the primary actors on the health question.

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These delicate issues will require statesmanship by all parties. The strict application of law and well-meaning but ineffective court rulings may respond to some legal questions but the broad social and political will require pragmatism. So far, I do not see it on both sides of this unfortunate divide. Until more statesmen arise, we are in for a long crisis that no court orders will resolve.

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