Jail doctors' union officials for contempt, court told
Kenya Medical Practitioners Pharmacists and Dentists Union Secretary-General Davji Atellah (in suit) joins members in singing a song at the RFUEA Grounds in Nairobi on April 2, 2024.
Kituo cha Sheria has joined the legal battle over the doctors' strike, seeking to have the union's top officials jailed for contempt of court.
In the case filed under a certificate of urgency, the rights body accuses the Kenya Medical Practitioners Pharmacists Dentists Union (KMPDU) of flagrantly disobeying a High Court order suspending the nationwide strike that has paralysed treatment in all public health facilities.
The order by Justice Byram Ongaya of March 13 declared the doctors’ strike “illegal” and directed KMPDU to suspend it.
Kituo cha Sheria, through a veteran legal practitioner Dr John Khaminwa, says the actions of the doctors “are manifestly unconstitutional and unlawful, and are prejudicial to the interests of the Kenyans in general where the sick and frail are writhing in their beds as they stare deaths approaching them.”
Dr Khaminwa says the top echelons at KMPDU must call off the strike, whose effects have been felt in the last three weeks, while the issues they are championing are addressed by the tripartite parties.
In the case, Kituo cha Sheria is seeking an order of mandamus to compel the KPMDU Secretary General, Dr Davji Atellah, its national chairperson, Dr Abidan Mwachi, and its national treasurer, Dr Mercy Nabwire, to comply with the order of Justice Ongaya of March 132024.
In the order of Justice Ongaya, he suspended the nationwide strike called on March 6.
“That an order of Mandamus be and is hereby issued against Dr Atellah, Dr Mwachi and Dr Nabwire to respectively comply with the Order by Justice Ongaya issued on March 13, 2024, suspending the strike,” Kituo cha Sheria urges the court.
Further, the court is being impressed upon to summon the three top officials of KMPDU to show cause why the union has refused and or failed to comply with the order suspending the strike.
The court was asked to commit the three top officials of KMPDU to jail for a period not exceeding six months.
The court heard that Kenyans are suffering, and their rights to access good health care have been violated by the striking medics.
Kituo Cha Sheria has named the Cabinet Secretary, Ministry of Health Susan Nakuminchah, KMPDU, Kenya National Union of Nurses (KNUN), The Council of Governors (CoG) and the Attorney General respondents.
The legal advice centre has named the Cabinet Secretary Ministry of Labour and Social Protection and the Salary Remuneration Commission (SRC) interested parties.
Dr Khaminwa says that the strike was called due to the failure of the Ministry of Health and other stakeholders, including CoG, to meet the terms in the Collective Bargain Agreement (CBA) between the 47 Counties and KMPDU, which was to take effect on July 1, 2017.
However, Justice Ongaya stopped the strike vide a case filed by lawyer James Kounah and supported by an affidavit from Jane Akunda dated March 12.
“The court stopped the planned strike on the sound decision that the same will create a favourable environment for negotiations and agreements on essential services without there being a strike and delivery of health services to continue,” says Dr Khaminwa in the plea to jail KMPDU officials.
The court ordered the CS Labour Florence Bore to schedule a tripartite meeting on March 14.
The meeting was to be attended by representatives from KMPDU and respondent officials and public service employers listed in the unions’ strike notice dated March 6.
When the case came for hearing on April 3, the Ministry of Health (MOH) sought 14 more days to continue negotiating with doctors to end the strike that has affected all public hospitals.
The Ministry of Health, represented by Counsel Mmene Eredi, requested Justice Ongaya for more time to conclude the talks and further file a formal report on the progress made and the steps undertaken to meet most of the union’s demands as contained in the CBA of 2017.
The trial judge heard MoH has made a proposal for minimum services, and they are still willing to engage in good faith.
On the other hand, Kenyatta National Hospital, which filed the case challenging the strike, told the court that they don't have the luxury of two weeks as people are losing their lives.
KNH said they are ready with 75 per cent of medical staff to continue providing services, which remains a contentious issue for the doctors.
In a rejoinder, the doctors' union - represented by Edgar Washika - said they cannot provide minimum services if they don't know the number of employees in the sector.
He said the doctor-to-patient ratio is skewed in that, on a typical day, there are no minimum services because of the understaffing.
"That is one of the major issues because some hospitals are unmanned as there are no doctors," he said.
They asked the court to compel all relevant parties to appear in the talks. He said only MOH, KNH, and MTRH were present in the meetings they have had so far. Counties, he said, have refused to participate in the process.
The Council of Governors said they have participated in the negotiations and process but are yet to reach an agreement.
After hearing from all parties that reconciliation and negotiation proceedings are underway, Justice Ongaya said there is a need for dialogue.
He gave the parties 14 more days to proceed and record a settlement in court.
The strike notice issued by KMPDU will remain suspended on condition that parties conclude and file in court the Memorandum of Understanding on minimum safety services in the event of a strike by doctors in public health institutions.
"Let us know how many doctors, in what cadres and their numbers. Like KNH and other public institutions because we may be talking about minimum services that don't exist at all. Let this information be filed in court," said the judge.
He fixed the case for further hearing on April 17.
