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January 22, 2019

Why Let The Children Perish?

KNH doctors in training during a procession at the hospital after starting a nation wide strike
KNH doctors in training during a procession at the hospital after starting a nation wide strike

The Preamble to our Constitution provides that We, the people of Kenya-Acknowledging the supremacy of the Almighty God of all creation, Committed to nurturing and protecting the well-being of the individual, the family, communities and the nation Adopt, Enact and give this Constitution.

In the past week, the employees of the county government of Nairobi went on strike to demand for payment and increase of their salaries. The industrial action saw the medical staff at Pumwani Maternity hospital, join in the strike and neglect their patients who included children, leading to the death of a number of newly born babies. This should not have been allowed to happen with the strong laws that we have that protect the rights of children. The Constitution, Article 53 (1) provides that every child has the right––(d) to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour; Sub Article (2) provides that a child’s best interests are of paramount importance in every matter concerning the child. Did the striking workers consider the best interest of the child?

The rights of the child are further protected by the Children’s act. Sections 4 (1) thereof Provides that every child shall have an inherent right to life and it shall be the responsibility of the Government and the family to ensure the survival and development of the child. It further provides in subsection (2) that In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration and in subsection (3) that All judicial and administrative institutions, and all persons acting in the name of these institutions, where they are exercising any powers conferred by this Act shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to – (a) safeguard and promote the rights and welfare of the child;

(b) conserve and promote the welfare of the child; and (c) secure for the child such guidance and correction as is necessary for the welfare of the child and in the public. The medical staff at Pumwani Maternity Hospital should have considered if the strike would jeopardised the rights of the children, before resorting to engage in it.

The rights to health of the child are guaranteed in section 9 of the Children’s Act which provides that every child shall have a right to health and medical care the provision of which shall be the responsibility of the parents and the Government.

Article 27 of The Constitution guarantees all including infants, the right to life. The loss of life of the infants happened at the watch of both the County and National government, governments which have positive obligations to fulfill to protect the rights and ensuring the well being of children. Between the rights of the striking workers and the infant children, which is the most important? In answering this question, it is prudent to look at the provisions of the labour laws concerning this types of industrial action.

The Labour Relations Act prohibits strikes by a certain class of workers/employees. Section 78 (1) provides that No person shall take part in a strike or lock-out or in any conduct in contemplation of a strike or lock-out if―(f) the employer and employees are engaged in an essential service;

The issue that arises then is if the services offered by the medical staff at Pumwani Maternity Hospital amounts to essential service. Section 81(1) of the labour relations act defines essential service as a service the interruption of which would probably endanger the life of a person or health of the population or any part of the population. Subsection (3) provides that there shall be no strike or lock-out in an essential service. Where there is an employment/industrial dispute involving employees providing essential services, the dispute shall be resolved as provided in subsection (4) which provides that any trade dispute in a service that is listed as or is declared to be an essential service may be adjudicated upon by the Industrial Court.

Essential services are listed in the FOURTH SCHEDULE of the Labour Relations Act as:-

1. Water Supply Services

2. Hospital Services

3. Air Traffic Control Services and Civil Aviation Telecommunications Services

4. Fire Services of the Government or Public Institutions

5. Posts Authority and Local Government Authorities

6. Ferry Services.

Employees rights and the Children rights have to be enjoyed in a complimenting and not contradicting manner.

From the foregoing, it is clear that the Constitution and the Childrens Act, put the rights of the children in the forefront in the protection of any competing rights and interests. The provisions of the Labour Relations Act that prohibits the striking of workers that offer essential services, due to the nature of the services,a category which fits the staff of Pumwani Maternity Hospital.

The deaths that resulted from the strike by the medical staff at Pumwani Maternity Hospital should not have occurred had the law been followed to the letter, and the best interest of the children is put first before other rights.

The little voiceless children need equality and protection like all the other members of the society. They are part of the family unit that ends up becoming the nation Kenya. This is captured so well in the Preamble to our Constitution as set out above. Whereas the striking employees might redeem the lost hours or pay, no one will ever bring back these children back to life.

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