Since 2010, Kenya has experienced seven nationwide public healthcare workers strikes and numerous county-based strikes. The labour strikes which occurred in 2017 were the most significant in their magnitude and duration. During this period, there was a nationwide doctors’ strike that lasted 100 days followed by a nationwide nurses’ strike that lasted 150 days. Between December 2020 and February 2021, clinical officers and nurses went on a strike that lasted 70 days.
The reasons cited for most of the strikes were: inadequate healthcare personnel; long working hours; and delayed and low renumeration. More recently, the Coronavirus pandemic has exacerbated the situation by increasing job-related risk such as higher risks of infection and death. Due to COVID-19, public healthcare workers’ demands included increased risk allowance and comprehensive life insurance. Sadly, shortages of personal protective gear, low quality of personal protective equipment (PPEs) and lack of dedicated isolation and treatment centres for COVID-19 positive doctors were cited as the main reasons leading to nationwide strikes by doctors, nurses, and clinical officers in December of 2020.
Another reason often cited is lack of implementation of Collective Bargaining Agreements (CBA). For instance, the responsibility of implementing the 2013 CBA signed by the national government and healthcare workers’ union was not honoured by county governments. This was the main reason for the 100 days nationwide doctors strike in 2017. The prolonged nurses’ strike in the same year was because of the reluctance by both the national and county governments to sign the draft CBA that encouraged them to return to work after a 2-week strike.
Often, counties sign CBAs to avert prolonged strikes without considering the financial implications that come with enforcement. The demands in the CBA are often contentious and beyond the capability of most of the counties. For instance, the 2016 nurses CBA included allowances that were termed by the Salaries and Renumeration Commission (SRC) as impractical as they were three times higher than the recommendation they had given after job evaluation for nurses. With increased demands by healthcare workers and breach of current CBAs, it is likely that strikes by healthcare workers will continue being a pervasive issue.
Effects of the strikes
The Constitution of Kenya in Article 43 (1) (a) guarantees all Kenyan citizens the right to the highest attainable standard of health through the right to access all healthcare services. Therefore, the unrests and hard stance often taken by both the county governments and public healthcare workers are hampering the delivery of high-quality healthcare services to citizens, thus threatening a reversal on progress made in improving health outcomes in Kenya. The unrests in the public healthcare sector have had dire consequences for citizens, many of whom cannot afford private healthcare services. Citizens often bear the high costs of the disputes between public healthcare workers and the national and county governments. Access to affordable healthcare services is often curtailed when public healthcare workers withdraw their services. Public health care facilities play a big role in ensuring equity in health and equitable access to healthcare for all citizens, and therefore strikes by public healthcare workers disproportionately affects the poor and vulnerable more, as they majorly rely on these facilities.
Kenya has over the years experienced a shortage of human resource for health. As such, withdrawal of healthcare services by public healthcare workers further exacerbates the problem and undermines the realization of Universal Health Coverage as envisioned under the “Big Four” agenda. The frequent dissatisfaction with the working conditions, wages and frequent threats of sacking has also led to public healthcare workers preferring private practice, thus draining the public healthcare sector of the much-needed workforce and expertise. The cost of industrial action to healthcare delivery has been further compounded by the COVID-19 pandemic, as provision of health care services are dire in responding to the pandemic. Kenya is already facing resource and infrastructural constraints in provision of healthcare services, hence the strikes during the pandemic worsen the situation.
The role of labour relation laws in the strikes
When dismissing public healthcare workers’ strikes, county governments often invoke Section 78(1) and Section 81(4) of the Labour Relations Act, 2007 which prohibits anyone who offers essential services from taking part in strikes or lockouts. Nonetheless, striking healthcare workers are guided and protected by Article 41 of the Constitution on labour relations, which guarantees them the right to fair renumeration, unions and reasonable working conditions and the right to go on strike when necessary. Therefore, the bone of contention between the county governments and healthcare workers is often the way their industrial action is perceived and how the demands are handled by their employers. The county governments often use the Labour Relations Act to declare their strikes illegal and use the threat of dismissal to discourage industrial action. Thus, power dynamics often play out with the county governments using the prohibition as a tool for mitigating the strikes. Public healthcare workers, on the other hand, withhold the essential services they offer in a bid to get their voices heard.
Industrial action is often a channel through which employees assert their bargaining power, thus bringing labour relations to an equilibrium. Therefore, the Labour Relations Act of 2007 substantially affects public healthcare workers’ bargaining powers as it does not adequately provide mechanisms through which they can agitate for their work-related rights. Instead, it prescribes litigation, which is a long process that may slow any progress towards resolving grievances. By prohibiting the strikes, the Labour Relations Act often aggravates the situation instead of creating an enabling environment for industrial conflict resolution.
Public healthcare workers through their unions have been advocating for the establishment of a Health Service Commission, which will centralize and harmonize human resource for health. With a Human Resource Commission, health care workers’ unions will be able to negotiate with one employer as opposed to the different county governments. However, with one employer, public healthcare workers can successfully call for nationwide strikes when advocating for their grievances and possibly hold the country hostage. The current dispensation whereby different public healthcare workers are dealing with different employers offers a reprieve to citizens who can seek healthcare services in other counties when strikes take place in their counties of residence. Devolution thus serves to spread risks associated with the strikes. Nevertheless, the grievances of public healthcare workers are valid, and their welfare is of paramount importance.
South Africa is an example of a country that has been successful in averting strikes and resolving grievances among essential services workers by including conciliation and arbitration in their labour dispute resolution systems. In the mid-1990s, South Africa pioneered a unique conflict resolution intervention termed as Relationship-by-Objectives (RBO), which was developed by the now defunct Independent Mediation Services of South Africa. This intervention involves development of consensus-based objectives and actionable plans by both parties in the dispute, with the aim of improving the employee-employer relationships. It also targets to improve the quality of engagement between the parties, especially where strained relationships have resulted into industrial action. The use of Alternative Dispute Resolution (ADR) in the Southern African country is anchored in law as the Commission for Conciliation Mediation and Arbitration in the country was established by the Labour Relations Act (1995) and given the mandate of resolving labour disputes for essential services employees.
The South African Labour Relations Act also creates room for essential services employees to agitate for their economic and social interests by providing mechanisms that should be complied with before they can embark on industrial action. It stipulates that trade unions wishing to take industrial action must plan for the provision of minimum level service. A similar case is reflected in most European countries such Belgium, the Czech Republic, France, Germany, Greece, Hungary, Italy, Lithuania, among others, that have only allowed for restricted or partial strikes among essential workers (European Foundation for the Improvement of Living and Working conditions, 2011). Laws prohibiting strike by essential service workers in these countries were amended over time to include provision for restricted strikes. Among the enshrined procedures that must be fulfilled are the maintenance of vital and emergency services.
An amendment to the Kenya’s Labour Relations Act (2007) to include the use of Alternative Dispute Resolution (ADR) mechanisms and make it mandatory for provision of minimum basic services in the event of strikes will improve the management of labour conflicts persistent in the healthcare sector. These measures will also help prevent the adverse effects of industrial action on the public healthcare sector. It will ensures that even if essential service workers go on strike, the safety and health of the citizenry is not endangered. Additionally, it will allow for negotiations and consensus building between employers and employees to begin without fear that the citizens are suffering from lack of provision of basic healthcare services. It will also allow time for reaching more agreeable CBAs that meet the needs of the employees while at the same time being financially viable for the employers. There is need for the strained relationship between county governments and public healthcare workers to be addressed, and this can be better achieved through ADR as opposed to litigation.
The persistent problems of strikes among public healthcare workers need a more sustainable and politically viable solution that does not cause a disequilibrium in the bargaining power between the employees and employers. Therefore, amendment of the Labour Relations Act (2007) to include the use of Alternative Dispute Resolution mechanisms and conditional provisions for industrial action will create a win-win situation for both public healthcare workers and the county governments. Inclusion of the ADR mechanisms will allow for effective dialogue and negotiations that will potentially avert occurrence of strikes, while the provision of minimum basic service will reduce the severity of the strikes in the eventuality that they occur.
Authors: Cecilia Naeku, Young Professional, Governance Department
Maureen Wanyonyi, Young Professional, Governance Department