Monday, February 13, 2017

The CBA treadmill

I don't know why you're surprised that officials of the Kenya Medical Practitioners and Dentists Union, who had had their sentence for contempt suspended twice by the Employment and Labour Relations Court, were jailed on the exasperated orders of the court. The moment that they lost the contempt proceedings, the unionists were on borrowed time and from all I have been able to gather of their comprehensive bargaining agreement with "the Government", they were never going to prevail in the courts of lawthough they more than held their own in the court of public opinion. #LipaKamaTender was an inspired hashtag and, ultimately, pointless in the dispute with "the Government."

"The Government" that signed the comprehensive bargaining agreement with the union was the first government organised in accordance with the provisions of the constitution promulgated in 2010. This presents complications of its own; save for "national referral health facilities" and "health policy", the national government may not have been the proper institution for the doctors to negotiate with and any negotiations that might have been commenced before the 5th March, 2013, would have been exercises in futility because it is county governments that are responsible for county health services and, even with the botched "devolution" of health services, the principal employer of doctors.

But even if the lawyers could get around the weaselly language in the Fourth Schedule to the Constitution, they would have to get around the weaselly language of politicians whose only goal, in Kenya as elsewhere, is to be re-elected and who have perfected the art of making and breaking CBAs with a casualness that would frustrate Faust's tormentor, the Devil himself. The seeds of their present losses can be traced to the failure to register the CBA in accordance with section 59(5) of the Labour Relations Act, 2007,
A collective agreement becomes enforceable and shall be implemented upon registration by the Industrial Court and shall be effective from the date agreed upon by the parties.
Politicians live for technicalities like these; it is like mother's milk to them. There isn't a politician alive who doesn't know that there is a limit to public resources; the Consolidated Fund is not a bottomless pit of money but a leaky basket beneath which lie many, many hyenas with designs on it, few of those designs being benign. The moment it became clear that in the chaos surrounding the "devolution" of healthcare had completely overwhelmed the union bosses such that they forgot to insist on the registration of the CBA, the union's goose was cooked. Shady? Definitely. Bad faith? Absolutely. Illegal? Well, it depends on whether or not "the Government" had the alleged billions it would take to implement the CBA, doesn't it?

Things have not gone according to plan for this government; the public debt, while "sustainable", foes not give the Government any wiggle-room to increase the size of its recurrent expenditure, of which remuneration swallow a colossally substantial sum. David Ndii, Jubilee's bete noir, calls what we are on right now the debt treadmill: we are borrowing to pay of debts. This debt treadmill prevents us from increasing the size of our recurrent expenditure without savage cuts in capital or development expenditure. As a result, this government has no good options. It has chosen the least painful: watakaa ngumu, come hell or high water. Sooner or later the doctors will blink. Now that union officials are being jailed for contempt, let us see if this government has called their bluff.

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