Tuesday, February 14, 2017

Should the CBA7 go free?

On 13th February, 2017, seven Kenyan doctors who are officials of the medics’ union were jailed for failing to call off a two-month strike by doctors at public hospitals. This precipitated a debate on how a country could condemn its brightest minds to prison.
Even as the government insists that the doctor’s demands are irrational, several large-scale corruption scandals exposed recently which implicated the Principal Secretary of Health (one of the individuals negotiating with the doctors) have brought many Kenyans to question the Executive’s commitment to ending corruption.The State’s Contempt for Court orders: A review of the last 4 years, Demas Kiprono, Advocate
 Kenya is peculiar but not that peculiar.

What happened on the 13th February 2017 was not a miscarriage of justice. The seven doctors were not jailed because they are doctors; they were jailed because, as leaders of a trade union, they disobeyed the order of the Employment and Labour Relations Court to call off a strike being undertaken by members of their union. In order to facilitate the ending of the strike, the court twice suspended its sentence of one-month's imprisonment for a total of ten days in order to allow the trade union to negotiate a binding settlement with the Ministry of Health. They failed to do so.

Whether or not the Government, that is the national Executive, characterises the trade union's demand as rational or not has nothing to do with whether or not the Executive is riddled with graft and that the Principal Secretary has been implicated in a corruption scandal. If it had anything to do with the labour dispute, shouldn't the doctors' union have brought the matter up, declared that it would only negotiate with honest, God-fearing civil servants and asked for PS Muraguri's exclusion from the negotiating table? That is not what they did.

What they did was to prosecute a two-pronged strategy: keep the Ministry's mandarins at the negotiating table without conceding anything while at the same time conducting an inspired public relations campaign that would paint the doctors' union and its members as the saviours of the health sector. The union succeeded. #LipaKamaTender is the reason why the 2017 edition of the First Lady's Half Marathon was abandoned and it is why the Cabinet Secretary feels comfortable painting his Principal Secretary as the stumbling block to an amicable settlement of the labour dispute.

But despite everything they attempted, two facts are indisputable: the employment court ordered the union to call off its strike; the union disobeyed the orders of the court. Neither of those facts is in dispute. When the union disobeyed the court, it was convicted of contempt of court, not contempt of Government. The leaders of the union were sentenced to one month's imprisonment. I hope my learned colleague Mr Kiprono is not suggesting that so long as a conviction is made against Kenya's "brightest minds" it should be vacated and the scofflaws set at liberty. That would make a mockery of the rule of law both he and I have sworn to uphold without fear or favour.

The doctors' union, with the consent of its members, agreed to defend their actions in a court of law, thereby agreeing to abide by the decision of the court. The court ordered the union to end the strike. The union refused. The court charged the leaders of the union with contempt of court and convicted them. Now the sentence is being carried out. The doctors can't claim that they were not extended every courtesy by the court to end the strike. They can blame the Ministry for stonewalling and lying through its teeth. But they can't blame the court for doing what was expected under the law. If you are convicted of an offence you must face the music.

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