As the unending protests in the health sector take Kenyans hostage, the latest battle concentrates on the 2017 Collective Bargaining Agreement.

The CBA is the remaining political heat seeping through the sector as health professionals engage in a back-and-forth with the government.

Kenyans seeking health services in public health institutions are the biggest losers whose only rescue come through the courts despite the length of time that route takes. 

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In 2021, the courts directed then Health CS Mutahi Kagwe and his Labour counterpart Simon Chelugui to establish regulations within a year to ensure hospitals have personnel during strikes.

Justices Monica Mbaru, Jorum Abuodha and Linnet Ndolo noted “Industrial action by health workers is not permitted unless there is a known and acceptable formula of ‘minimum service’ retention at every affected health facility. This limitation is in addition to those imposed by the conciliation procedures set by the Labour Relations Act,” the court ruled.

The medics told The Standard the implementation of that directive failed because the government failed to provide areas which needed to be covered by minimum service with Deputy Secretary General of Kenya Medical Practitioners, Pharmacists and Dentists Union Denis Miskella saying: ‘’When we urged them to provide us a list of areas they wanted us to cover, they gave all areas which inadvertently meant all striking doctors return to work.’’

While doctor’s unions believe the establishment of a health service commission will be the silver bullet to solve the perennial strikes, the national and county governments through the Council of Governors, want a fresh look at the 2017 CBA agreement.

“The commission will address among other things, salary delays, disciplinary issues, inter-county transfer and creation of standard treatment of medics across the country while at the same time address skewed distribution of health workers across the country because as at now the country is in shortage of 10 000 doctors,” KMPDU Secretary General Davji Atella told The Standard.

He said Kenya’s patient-doctor ratio is 1:17,000 against the WHO requirement of 1:10,000.

On the other hand, the government has been considering re-writing the signed 2017 CBA.

Health CS Susan Nakhumicha and Council of Governors (CoG) Health Committee chairperson, Tharaka Nithi Governor Muthomi Njuki separately believe the 2017 CBA should be relooked as it was the basis of unwarranted conflict between the health unions and the government.

Njuki claims the document contains components ‘not only difficult to implement but unreasonable’ and that 95 per cent of doctors have individual contracts with each of the 47 counties, thus their continued stay in the streets is unwarranted.

“Consequently, county based doctors’ unions should engage governors to iron out their grievances because the larger percentage of doctors are employed by county governments with individual contracts and their grievances vary from one county to another,” Njuki said.

CS Nakhumicha has stressed that the only solution to the strikes was to relook the 2017 CBA agreement as it contains ambiguous areas, which makes its implementation futile.

Some areas which the government terms ambiguous include pay rise to doctors and medical interns, and salary increments which Nakhumicha believes are unreasonable.

The medics maintain that government exists in perpetuity and wonder why former CSs and other government representatives appended their signature early last year committing themselves and by extension government to implement the 2017 CBA.

‘’By denouncing the CBA which has been registered as a court document, it is the government that is on strike and not doctors,” said Atella adding “It is ironical that they accuse us of violating court orders yet they have disobeyed three court orders revolving around implementation of the CBA.”

Former Health CS Mutahi Kagwe has reminisced how in 2017, during elections, the Uhuru administration made all manner of promises including the CBA with health workers, some that would be difficult to implement.

“It was during elections, when doctors demanded the CBA and it happens in every electioneering year but promising is different from implementing,” said Kagwe adding: “Even doctors are usually promised things that those who promise know too well that the promises can’t be achieved.”

Kagwe said the intention of former President Uhuru Kenyatta’s administration was to implement the CBA but faced several hurdles.

He said however that the ongoing doctors’ strike will only be resolved if the government and the doctors’ union engage in dialogue. He urged both teams to climb down from grandstanding.

“When two elephants fight, the grass suffers and that grass today is patients, they continue to bear the brunt of the strike and that is why the government and the doctors union must engage in dialogue,” he said while at the same time urging the state to listen to doctors. 

The standoff over the 2017 CBA has attracted politicians to weigh in on the matter.  Wiper party leader Kalonzo Musyoka recalled how an intermediary in 1997 in Mulu Mutisya came to his help with the teachers strike which had been called by then-outspoken Kenya National Union of Teachers Secretary General Ambrose Adongo.

Kalonzo recalled: “At night, Mutisya mobilised the teacher union officials led by Adongo and took them to Mzee Moi at State House without my knowledge only to receive the President’s call at night informing me that he was with the ‘big boys’ courtesy of Mutisya and the following morning there was no teachers.”

The Wiper leader said the Kenya Kwanza administration should embrace such tactics in ending the stalemate that has exposed patients to suffering.

Azimio leader Raila Odinga has blamed the strike on the ‘incompetency of some Cabinet Secretaries saying the government should meet the demands by the medics halfway.  

“We see an equally pedestrian and dismissive approach to the doctors’ strike and its impact on ordinary Kenyans. There seems to be neither commitment nor capacity by the government to resolve the matter,” Raila said.