The late Justice Saeed Cockar, the longest serving judge of the Industrial Court in Kenya’s history, wouldn’t have sent the seven doctors’ union officials to jail. Labour courts in this country have not had a tradition of locking up trade union leaders in prisons.
Indeed, labour courts in this country have historically acted as institutions of social dialogue that are meant to facilitate resolution of disputes by promoting consensus through negotiations, conciliation, dialogue and collective bargaining.
The ongoing doctors’ strike should shock all of us and cause us to look into the mirror to appreciate just how deep we have sunk in terms of lack of effective systems of adjudicating industrial disputes and the death of functioning employer-employee bargaining mechanisms.
Is it not just astonishing that we were at a point where even the flagship and elite medical institution in the country- Nairobi Hospital- was about to close its doors to patients in solidarity with the striking doctors.
Is it not a sign of the times we live in that even the usually non-partisan and conformist professional bodies such as the Kenya Medical Association are only too willing to join the fray, putting out statements where its leaders spew strident rhetoric while expressing solidarity with the striking doctors. Justice Cockar succeeded because in his hey days, parties were encouraged to explore common ground instead of concentrating on scoring points and winning arguments.
When parties sat before him, it was not just about listening to arguments to find flaws and prepare counter arguments. It was about facilitating consensus.
By jailing the doctors and pretending that the constitutional right of a worker to withdraw his labour can be taken away at the whim of a judge, we have ended up making doctors and unions even more radical and militant.
Me thinks that the judge who sent the doctors to jail had a mindset of the mainstream courts. Labour courts, unlike mainstream courts, operate with a mindset that promotes dialogue and restrains unions from adopting militancy.
The unfortunate thing is that you cannot do anything about a judgement you don’t agree with. When you lose faith in politicians, you can easily change them at the next elections, but when you lose faith in judges, you have to live with them for a long time.
Here are a few suggestions for the leaders of the doctors’ union to ponder as they prepare to approach the negotiating table. First, you must accept that the outcome of the negotiations will inevitably be less than perfect.
Second, before you approach the negotiating table, seek a consensus within the rank and file of the union on the agreed areas of compromise.
Finally, cease raising false expectations among the doctors.
I also have some suggestions for the government side. First, You must withdraw both Health Cabinet Secretary Dr Cleopa Mailu and principal secretary Dr Nicholas Muraguri from the negotiating table.
The calibre and integrity of the persons representing you in these negotiations matter. And as you go into the negotiations, make a mental note that you are where you are today primarily because you are trying to wriggle out of a commitment you made to doctors several years ago.
Second, please do not approach the negotiating table with that tired argument that the collective bargaining agreement you signed with the doctors is illegal.
That position is very divisive and is, therefore, not likely to yield to compromise. As long as doctors are made to appreciate that their sweat and labour is being reciprocated within reasonable limits - materially or otherwise - the negotiations will have a better chance of succeeding.
Finally, let us debate the issue of strikes in essential services. Although we have a constitution that protects the right of workers to go on strike, we must debate new ways of dealing with boycotts in essential services where third parties are likely to suffer.
What does an ordinary sick person admitted to a hospital have to do with the wage demands of doctors? What protection do our labour laws give to innocent third parties?
If strikes in essential services continue, it should not surprise anyone if we start seeing public agitation for anti-strike laws.