Justice Wasilwa unwittingly unlocked ammunition striking doctors did not know they had

Although others argue to the contrary, medics defiance of the Court may be regarded as conscientious objection rather than as pure civil disobedience

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Dr Charles  Khamala

Disorderly doctors display a condition whose therapy is “four walls.” On January 5, 2017, Employment and Labour Relations Court Judge Helen Wasilwa rejected a Collective Bargaining Agreement purportedly signed between the Kenya Medical Practitioners, Pharmacists and Dentists Board Union (KPMDU) and the Health Ministry in 2013 because “it is unregistered, invalid and hence unenforceable”. Thus, the “four walls” therapy was administered on January 10, 2016 to cure their continued defiance of her return-to-work order.

The first problem is that KMPDU were initially dissatisfied with the government’s failure to implement its promised 300 per cent pay hike. However, it turned out that, notwithstanding that that 2013 CBA document was signed by the Health Ministry’s Principal Secretary, it is not only unenforceable but also unworkable. Their actual employer, the county governments, holds that KMPDU’s tripling-of-pay demands are exorbitant, unrealistic and therefore unacceptable. The second problem is that, ignoring Judge Wasilwa’s finding, the incensed doctors persisted in the illegal strike. On January, 12, comparing the contemnors to a “stinking sewer,” the Court condemned the Union officials to serve a month in prison for contempt of court.

It is very difficult to distinguish the two disputes emerging, on one hand, from earlier causes of their strike notice, with, on the other hand, non-compliance with the valid court order. This is because both the protected turned unprotected strikes manifest picketing Afya House to put pressure, expense and discomfort on the Health Ministry.

Political medicine

Unsurprisingly, there have been spontaneous changes to the grievances which precipitated their November 12, 2016, 21-day strike notice, whether attributable to emotional, personal or political reasons, and culminated in 30-days committal of the “CBA Seven” – KPMDU officials – to civil jail. The main reason uncertainty surrounds the opinions of how to respond to the striking doctors is because their challenges are no longer merely pay-related or even about the organisation of the health sector, but now concern unfairness of systemic legal and judicial processes. Their condition has not been diagnosed properly.

Only a moral evaluation of the impact of their refusal to return-to-work can facilitate deciphering the message they communicated. Hospital strikes, whether by the 5,000 doctors or their nurses, target not only employers – for these facilities are not factories involved in manufacturing with stocks; rather, their thrust inflicts collateral inconvenience on the public – since patients and their families, particularly the poor cannot afford private treatment. They are subjected to suffering or death upon premature discharge, anxiety of homecare or delayed operations.

The strike’s direct aim is to force third party authorities to become involved in failed negotiations to catalyse consensus. However, why Mrs Phyllis Kandie, Cabinet Secretary of East African Community (EAC) Labour and Social Protection, failed to appoint facilitative conciliation services last September, under Section 65 of the Labour Relations Act No. 14 of 2007, to resolve the matter remains perplexing.  A board of Inquiry ought to have investigated the background to the dispute and proposed solutions, by October’s end, to unlock the impasse during a “cooling off” period to pre-empt the impending strike. By December 2, 2016, when Meru Governor Peter Munya, the Chairman of the Council of Governors, as the doctor’s employer, moved to Court for an injunction restraining the prolonged work stoppage, it was too late to prevent the harm. After all, hospitals cannot stockpile patient care whilst the human beings perish.

Since December 5, 2016, when their strike commenced, doctors have not only unceremoniously abandoned patients in hospitals or homes, but we have also witnessed 2,000 surgeons in undignified poses melodramatically marching along in city streets. On the opening day, horror scenes portrayed dozens of uniformed mental patients and inmates scaling the Mathare Mental Hospitals’ perimeter wall and melting into the surrounding environs. This utter neglect demonstrates the impact of the mutual irresponsibility between doctors, their employers and the national government.

Yet, on January 4, 2017, the Union casually rejected President Uhuru Kenyatta’s offer of a 40 per cent increment. Instead, they began calling on him to fire Health Cabinet Secretary Dr Cleopa Mailu and his Principal Secretary Henry Muraguri, as a condition for further negotiations. In early February, one citizen, one Wafula, even applied to the Judicial Service Commission for disciplinary proceedings against Judge Wasilwa. Meanwhile, Wafula’s baby died at Mama Lucy Hospital.

Notwithstanding that her initial sentence was suspended by two weeks, the judge twice postponed her earlier orders committing the striking doctors’ Union officials to face prison medicine: first, on January 26, 2017 when she extended her 14-day suspended sentence for five days, and second, on February 2 when in a last ditch effort to mediate the dispute, the Central Organisation of Trade Unions and the Kenya National Commission of Human Rights interceded in the employment dispute. Once again, sentencing was postponed until February 13 when it commenced, only for the contemptuous doctors to be reprieved after two days by the Court of Appeal’s Wanjiru Karanja, Hannah Okwengu and Jamila Mohamed JJA.

Vacating the return-to-work order, the Court substituted the Law Society of Kenya to the mediation panel in COTU’s place and directed the stakeholders to report progress within seven days, towards reaching mediated settlement. At a level of legality, this showdown demonstrates the existence of an inarticulate “right to work” couched in the 2010 Constitution’s Article 41 labour relations rights. After all, rights to unionise and to strike are only comprehensible as derivatives of a right to work. Indian jurisprudence anchors the right to work in the right to make a livelihood and ultimately in the right to life. Kenyan doctors seem to be suggesting that violating Article 43 affordable healthcare to all denies the doctors, as healthcare providers, a right to earn a decent wage and derogates from the medical profession’s (as well as the public’s as potential patients) Article 26 right to life.

Yet Labour students know that “without recourse to industrial action, collective bargaining would amount to little more than collective begging.” Thus Kenneth Kruger and Norman Metzger (2002) explain that “the law does not compel parties to agree to the terms of a labour contract; rather it only mandates that they bargain ‘in good faith.’”

In mid-December, the Salaries and Remuneration Commission presented a review of the salary scale for health workers, which Treasury said it could implement, but over time. Insistence on the letter of the terms of the defective on the CBA, and continuance with a prohibited strike contrary to Section 78 of the LRA, suggests more than “bad faith” on the part of the KMPDU officials. They neither showed remorse nor sought to mitigate or abate their brazen violation of the court’s order, making no attempt to avoid a custodial sentence. This is quasi-criminal. What kind of political criminality are they engaged in: civil disobedience or conscientious objection?

Civil disobedience theory is appropriate to evaluate their political strategy of deliberately attracting punishment to publicise the plight of the ailing health sector. Yet this sensationalism disguises what may be pure self-seeking for better perks. Very few labour relations disputes ever end up being enforced through incarcerating union officials. Hence no study has been done using civil disobedience criteria.

Moral philosopher John Rawls in A Theory of Justice (1971) cautions that civil disobedience has its limits. One is that such political acts of protest must be preceded by exhausting existing democratic legal and judicial processes. This not only means that the KMPDU officials should have appealed Judge Wasilwa’s committal order. They should also have framed their grievances about structural inequalities inherent in health care provision as either a constitutional challenge, an election or a referendum issue. They did not. Their resort to violating a valid court order amounts to a semi-criminal approach to canvassing for public sympathy rather than deploying conventional politicking tactics of vote seeking through campaigning for their parties, candidates or policies of preference.

Health financing

Greater uncertainty afflicts the relationship between overall organisation of healthcare providers and funders, which permeates the issues of budgetary allocation and of benefits appropriation. Despite the management of heath care being a devolved function to county governments under Schedule 4 of the Constitution, it does not enjoy adequate expenditure. This anomaly emanates from refusal by the national government to dispense enabling capital.

Because rural dwellers do not receive wealth equalisation transfers from Nairobi, therefore regional health disparities persist. Yet Article 43 provides that “every person has the right – (a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care.” The objective of this right is to reduce the impact of illness in terms of pain, discomfort, and disability irrespective of economic class, geographic region, ethnic or religious group, albeit with particular focus on pregnancies. However, an evaluation of the health services system in the country exceeds this essay’s scope.

Suffice to note that Germano Mwabu and his colleagues in their edited volume, Improving Health Policy in Africa (2004) have shown that in Tanzania, “even with decentralised administrative structures, there can hardly be improvements in the efficiency, equity and quality of health services in the public sector without corresponding transfer of power and fiscal resources.” Curiously, even assuming that well paid doctors are distributed countrywide to regional hospitals, nonetheless, “Patients bypass free or subsidized clinics in public health facilities for distant possibly more expensive facilities. Low quality peripheral clinics are bypassed to over-utilised referral hospitals. This phenomenon leads to inefficiencies in utilisation of facilities and in the allocation of health resources by policymakers.” Mwabu et al conclude, mundanely, “rural people do not have the same access to basic health care as the urban population.”

Consequently, “to redress this imbalance there is need to design health policies that will shift resources to rural areas, at least in orders of magnitude that reflect the rural share of the population.” They recommend “improvements in services at peripheral facilities and pricing of services at referral facilities, which reflect the costs of services and should improve the pattern of utilization of public health systems.”

It should also be emphasised that despite these insightful and “highly information intensive” research findings into the “‘identification,’ ‘rationalization’ and ‘operationalization’ of activities that are of greatest benefit to health,” nevertheless, the constitutional framers created a decentralised health sector in which the national government retains control over the budget, resulting in financial suffocation of regional health facilities. Therefore, in order to draw attention to the negative impact emanating from this systemic dysfunction, the KMPDU adopted a strategy of initially insisting on pay increments, but ultimately ambushing the government with a need to overhaul the health financing to ensure that health rights are taken seriously.

Five mechanisms for functioning health services have been hotly debated in the literature: user charges, general tax revenues, community financing, social insurance and external funding. Each is unsatisfactory or problematic for different reasons. First, fee-for-service involves patients paying doctors a fee for each separate element of care charged. Unfortunately, commodification of medication encourages medical practitioners to selectively perform those procedures specifically rewarded by money rather than conferring personalized treatment. Some unscrupulous medics may even prescribe the most expensive superfluous interventions or medicines.

Within this bracket, salaried doctors are forced to put profits before patients, since they rely on their employers who determine rewards and promotions. The second health-financing source is from general tax revenues. Taxation has its drawbacks since it deters entrepreneurs from investing their capital to grow the economy. Ultimately, the crux of the matter boils down to whether Kenya’s health sector goals can best be achieved by competition or administrative regulation. Evidently, that is a political issue, which is, arguably, unsuitable for resolution through civil disobedience, leave alone judicial determination.

The third health-financing source, “harambees” are inappropriate for recurrent expenditures since they are sporadic and conspicuously unethical. Quantum donations by politicians and others at fundraisings exceed their visible earnings. These contributions are suspected to emanate from dubious sources such as pilfered public coffers and channelled towards philanthropic, but unaccountable, causes to facilitate money laundering. Fourth, health insurance is hardly affordable to the majority informal rural folk and is the preserve of employed urban elites. Fifth, donor funding not only comes with burdensome conditionalities, but it is also project-specific, seasonal and therefore unreliable.

Graham Scrambler’s Sociology as Applied to Medicine (1997) compares the North American experience, which subjects its health sector to competitive markets, to Europe, which deploys regulation to achieve healthcare optimality. Health sector controls entail setting overall limits to doctor’s fees and regulating the introduction of high technology medicine. Moreover, different medical interventions require different expenditure. Statistically, the US and Canada perform twice the number of surgeries per capita, as well as double the amount of X-rays as the UK. The former perform three times as many renal dialysis treatments, and possess five to ten times more intensive care beds. To explain these comparative disparities, Scrambler hypothesises that “the greater a country’s wealth, the greater will be not only the amount but also the proportion of wealth devoted to health care.”

Thus we may predict that in the circumstances of a developing country like Kenya, because we have a fraction of the number of surgeons and further because our gross national product is significantly deficient, therefore, not only would the proportion of our health ministry’s budgetary allocation be expected to be correspondingly inferior but so would its proportion relative to other sectors whether education, security or even roads and other infrastructure. Although in mid-February petroleum prices were increased by a whooping Sh4.10, no additional allocation was made to the health sector.

Ironically, contrary to Mwabo’s earlier quoted suggestion, greater resource allocation does not necessarily improve health care provision. Notwithstanding North America’s superior wealth and health investments, mortality rates across developed Western countries remains insignificant. In the Kenyan context, the lengthy doctor’s strike, which degenerated into illegality, communicates a political cry to the national government to increase its budgetary allocations to “under doctored areas.” The KMPDU now admits that this entails more than simply increasing their salaries, but also implies improving facilities to thereby remove clinician’s frustrations of “supervising death.” The question arises of not merely whether, given Kenya’s relatively meagre GNP, enhanced government expenditure is required to improve healthcare. More fundamentally, to what extent is civil disobedience is an appropriate political strategy for pursuing health sector law reform?

Civil disobedience

In 2013, during negotiations with the health ministry’s Principal Secretary, the KMPDU were acutely aware, inter alia, that Kenya’s new constitution prescribes a right to affordable healthcare while simultaneously clawing it back by devolving health functions to underfunded county units. The medical fraternity was also aware about the inefficiencies, ineffectiveness, inaccessibility, inequity, social unacceptability and the irrelevance of many aspects of the healthcare system.

Consequently, it can be inferred that the KMPDU’s political strategy was to provisionally accept an unworkable CBA, but subsequently resort to industrial action to subject the public to discomfort hoping that a sufficiently responsible government would be persuaded to increase healthcare expenditure. However, this “cloak and dagger” scheme became unstuck because of one oversight. They forgot, omitted or neglected to register the CBA in the Employment and Labour Relations Court. Failure to comply with this technical requirement justified the CoG’s suit to declare the strike unprotected and further justified the Union officials’ loss of immunity when they persisted with the illegal industrial action.

If the KMPDU was dissatisfied with Judge Wasilwa’s non-recognition of their CBA, it is necessary to ask first, why didn’t they challenge the finding that voided the CBA? They may have argued that the legal formalities which require registering CBAs with the court as being unnecessarily bureaucratic since equity presumes as done that which ought to have been done. The new Constitution expressly mandates courts to do substantive justice without undue concern for procedural technicalities. Yet, no formal argument has been successfully lodged to the effect that the government’s failure to register the CBA should not prejudice the Union.

Second, did they not only fail to appeal the subsequent contempt order, but more fundamentally to appeal her contingent contempt finding? On February 1, the Court of Appeal declined to reverse Judge Wasilwa’s committal order since the Health Cabinet Secretary was not given case documents for the appeal suit. Third, despite the legal tide turning against them, the doctors have not officially aligned their cause with the political manifestoes of any political party, which endorses socio-economic rights. Altogether, it is possible that the KMPDU’s legitimate legal and political alternatives were not exhausted. Perhaps the avenue of disobeying the court order and soliciting public sympathy on account of wider unequal healthcare, arose as a mere afterthought? Their initial plan appears limited to remaining within the four corners of the “2013 CBA” and holding out for a 300 per cent pay increment for themselves.

I now turn to the four ingredients of Rawls’ civil disobedience. First, it must be a principled rather than self-seeking, political act. Second, unlike belligerencies, rebellions or revolutions, it must be non-violent. Third, and most crucially from KMPDU’s undoing, it should be deployed as a last resort, after exhausting all available legitimate democratic political processes. Fourth, its authors should respect the political system as a whole. This is demonstrated by a disobedient person’s acceptance to be prosecuted and punished by the wider legal system on account of violating a particular rule that he or she considers unjust.

The purpose of engaging in civil disobedience is therefore to communicate with the majority population and government that such unjust rule offends the basic foundations of justice among democratic men and women, which the constitution aspires to uphold. Furthermore, Rawls’ remit for civil disobedience is limited to opposing clear and major injustices of a government’s interference with civil and political rights. Consider the Gandhian Satyagraha orchestrated against British colonialism in India or the US civil rights movement by African-Americans and women in the 1950s and 1960s.

In other words, the device of civil disobedience is inappropriate to redress vague or “minor” grievances involving socio-economic rights. This is because second-generation human rights, whether the right to health, water, food, or housing, etc. are controversial, and therefore difficult to communicate unfairness in their allocation. Conversely, first-generation human rights for which civil disobedience is properly amenable comprise the civil right to equal individual liberties and the political right to a fair opportunity to hold public office.

Marx and Socrates

Other philosophers adopt extreme positions regarding whether or not the State should interfere with economic conditions to provide basic needs. Take utilitarians, or Marxists. The former believe that civil disobedience may be used to redistribute economic wealth for collective interests while the latter even advocate a proletarian revolution. Consequently, KMPDU’s defiance of Judge Wasilwa’s order can be justified if predicated on a consequentialist motive.

The principle “from each according to his ability, to each according to his needs” refers to free access and distribution of goods, capital and services. It is attributed to either the French communist Morelly, who proposed in his Code of Nature (1755) which postulated “Sacred and Fundamental Laws that would tear out the roots of vice and of all the evils of a society” or to Louis Blanc in The organization of work (1839). Karl Marx in Critique of the Gotha Program (1875) popularised it as one of socialism’s salient characteristics. Under communism “to each according to his work” refers to an arrangement whereby individual compensation reflects one’s contribution in terms of effort, labour and productivity, to the total output of the economy.

Yet, as Scambler notes, Marxists also recognise that “the delay in state welfare of which the National Health Service is the cornerstone is the key battlefield in the conflict between labour and employers in all societies.” He explains that, “The working class wants to ameliorate as many of the adverse conditions of capitalism as it can, whereas employers want to make as much profit as they can with as little cost.

Sometimes the Marxist position holds (that) concessions regarding the provision by the state of welfare services have been made to allow the overall profitability of the market economy to continue. “At other times”, however, “cuts will be made to the social wage in order that the maximum amount of money flows into profit-making sectors.” In today’s Kenya, the healthcare system is neither organised nor financed in a manner that ensures equal access by the rich and poor.

In reality, to adopt Scambler’s observation, “The welfare state can be seen to carry out three roles: to produce the health and education of the existing workforce; to produce the next generation of workers; (and) to justify the inequalities of capitalism. This is the role of the welfare state in sustaining profitable capitalism over the medium and long-term.” Thus on a Marxist conceptualisation, Kenyan doctors should be remunerated commensurate with their role in sustaining the health of Kenya’s workforce which should be estimated as proportion of the social product, rather than GNP. Since health is a highly prized item, the doctor’s increment may far exceed the mere 300 per cent, which they demand.

At the other extreme, positivist social contractarians believe that we are obliged to obey law because we have placed ourselves in a society in which all members are under such an obligation. This is not only different from believing that law is intrinsically rights but also dissimilar from being fearful of the punitive consequences of punishment. Consider the position of Socrates, the wisest philosopher of his era. He was sentenced to death for the crime of corrupting morals of the youth, who he taught critical thinking. His brilliant pupil Plato records in “Crito” how Socrates seeks a justification for his moral action to accept the death penalty, rather than flee into exile to escape an unjust Athenian law. Mark Tebbit (2005) summarises this legal positivist justification for citizens obeying unjust laws as follows: “(1) general obedience is the condition for the existence of society and without it there would be anarchy; (2) the citizen owes the State everything, including his or her life; (3) the citizen has agreed, both explicitly and implicitly, by virtue of receiving benefits from the State and choosing not to emigrate, to obey all the laws; (4) the citizen has the opportunity to persuade the State, through legitimate lobbying, to change the laws, but not the right to disobey them.”

By choosing to drink the hemlock and rebuking his students for breaking into prison to free him, Socrates concluded, “The obligation to obey the laws is virtually unconditional.” He does not share Rawls’ limited defence of civil disobedience in carefully qualified circumstances. Conversely, if the striking doctors are defending the moral legitimacy of some kind of principled law breaking, overriding the “prima facie” obligation to obey the law, then their version is not the civil disobedience proposed by Rawls. By defying Judge Wasilwa’s return-to-work order, the KMPDU not only reject Rawls’ requirement to exhaust available remedies, they also disagree with Socratic fidelity to law. Perhaps when the Kenya Medical Association Chairman Dr Jacqueline Kitulu described the “CBA Seven’s” three-day incarceration as tantamount to making them “prisoners of conscience” she aptly labelled them conscientious objectors.

Towards a surgeon general

Save for utilitarians or Marxists, it does not seem principled for an aggrieved party to violate an unjust law for a self-seeking purpose of bargaining for a 300 per cent pay hike. Neither Rawlsian civil disobedience nor Socratic positivism would encompass political acts aimed at communicating the need to redistribute public wealth to the least advantaged groups. This is because all minority groups would similarly stake compelling reasons as to why each of their peculiar preferences deserves prioritisation. Countless other causes could be conjectured to justify disobeying law without recognising the legitimacy of the government, thereby creating anarchy. Should KMPDU not give equal consideration to other citizen’s consciences and therefore resolve their claim through conventional legal and political channels? Perhaps the principle to which they were objecting is the Labour Court’s systematic use of legal formalities to govern?

A rookie doctor’s basic salary is Sh40,000 a month. In the last three years, we have lost 2,300 doctors from the public sector, going to work for the private sector and others leaving the country. This is because of poor salaries, poor working conditions, absent career progression, and no promotions. From national television to the daily press, the KMPDU officials have argued informally that discrimination exists between health facilities available to private and public hospitals, which translate into substandard medical services for the poor. If this is indeed true, then why don’t they instruct counsel to prepare a “Brandies Brief” in support of a constitutional reference?

Louis D. Brandeis acted in Muller vs. Oregon (208 US 412) before the US Supreme Court, a pioneering legal brief that was the first in United States legal history to rely more on a compilation of scientific information and social science than on legal citations. It involved the constitutionality of maximum-hour law for women laundry workers. As it stands, Kenya’s medical professionals seem to have conflated their private demand for improved livelihoods, however legitimate, with their critical attitude about the condition of the dilapidated facilities which can ill dispense affordable healthcare to all. By illegally neglecting patients, they may be perceived as renouncing their calling as secondary faculty officials who should dispense healthcare and “do no harm,” and instead descend into the primary faculty of critical philosophy or even practical political activism.

The ultimate question is whether their strike is justified in the context of developing countries as the only or best method of exposing rot in the healthcare system. Incidentally, considering that this industrial action is the 43rd by the Kenyan health sector in the last five years, perhaps they are demoralised that it would take too long to litigate for constitutional interpretation to impose a duty on the government to avail adequate healthcare or to petition parliament for legislative change? Why can’t they explore more sophisticated methods of permanently overhauling healthcare delivery in Kenya in line with the government’s obligations under the new constitution?

Two lessons arise from this unprecedented and unfortunate 80-day impasse. First, that the medics are justified – on utilitarian or Marxist logics but not on Rawlsian or Socratic reasoning – in persisting with their strike whether seeking threefold increment or healthcare overhaul. Second, that the defiance by KMPDU officials of Judge Wasilwa’s return-to-work order may be regarded as conscientious rather than entirely opportunistic, but not as pure civil disobedience. We have also observed extreme bargaining tactics adopted by various stakeholders in the doctor’s crisis with counter accusations of bad faith.
On one part, the public suffers collateral damage of being held hostage while debates over seemingly remunerative issues are prioritised. The Union is fortunate that no one has as yet sued them for professional negligence in virtue of the widespread damages flowing from continuing with an illegal strike. This is because lay observers are appalled by insensitivity about the outcome violated right to health of the neglected patients. Yet, on their behalf, down the years thousands of doctors suffer silently while persevering to confer the best treatment they can while “barefoot” and some have been killed while shuttling between hospitals to respond to distress calls.

Writer is Senior Lecturer at Africa Nazarene University Law School, and Advocate of the High Court of Kenya 

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