Doctors’ strikes have occurred time and again in Kenya. Stepping into the time machine of history, the Kenyatta regime did not experience any doctors’ strikes. This pandemic began in the Eighties during the Moi presidency.
In 1997, there was a doctors’ strike that lasted for 105 days. Back then, there was no trade union for doctors that could properly lobby for their rights. The government had blocked attempts by doctors to register a trade union.
This all changed with the advent of the 2010 Constitution where the right to strike and to join trade unions was guaranteed for all employers and employees under Article 41.
The Kenya Medical Practitioners, Pharmacists and Dentists Union was then established on August 30, 2011. Additionally, a Collective Bargaining Agreement was signed between KMPDU and the national and county governments on June 27, 2013. The agreement promised to boost the pay for medical practitioners and implement other demands.
However, the government failed to implement this agreement leading to a doctors’ strike in 2017 lasting 100 days. The 2017 CBA was then agreed upon but it is also yet to be implemented.
This has culminated in the just-ended doctors’ strike, which began on March 12, with about 4,000 doctors taking to the streets demanding higher salaries as per the agreement, which requires interns to be paid Sh206,000 per month.
The doctors were unrelenting despite threats by the government to fire them for abandoning their posts. Regrettably, the ordinary mwananchi was left to suffer once again in this long-running saga.
The correct position of the doctors’ strike cannot be put in black and white. The strike threatened the rights to life and the highest attainable standard of health of citizens, both of which are profoundly espoused by the Constitution under Articles 26 and 43 and international human rights instruments ratified by Kenya.
However, there is a quagmire presented seeing that workers have rights to strike through the concept of collective bargaining and trade unions have a right to lobby for good working conditions and fair remuneration of their workers. This is enshrined in the Constitution under Article 41(2).
As a general rule, where there are rights, there are corresponding obligations. Article 41 is subject to limitations as espoused by Article 24 of the Constitution whereby the limitation imposed has to be lawful. Importantly, certain factors must be taken into account for limitations such as the enjoyment of rights by an individual does not prejudice the rights and freedoms of others.
The doctors’ strike was a lawful endeavour. Nonetheless, its participants had a duty and moral obligation to ensure that they did not infringe upon the rights to life and healthcare of the Kenyan citizen.
In the 100-day strike of 2017, for instance, dozens of deaths resulted from the massive walkout of doctors. In the just-ended strike, this was still the case. Patients across the country were suffering as medical care in private hospitals is beyond their reach due to the high costs involved.
The doctors are the buffer between us and fatality. This is especially important today with the violent floods sweeping across the country putting our lives at risk and causing grievous injuries. The doctors failed to honour their oath—they should at least have honoured the National Anthem, which states that service be our earnest endeavour.
The government should establish a National Centralised Commission to deal with the welfare of doctors, standardise terms and conditions nationally, across all the counties and all levels of the hospitals.
Further, Parliament should pass legislation limiting the right to strike for professionals such as doctors, which could be detrimental to the enjoyment of the masses’ rights.
Law students at Mount Kenya University. [email protected] and [email protected]
