The recent judgement made on 17th February 2023 from the Court of Appeal at Nairobi, Civil Appeal Case no. 81 of 2018, Transparency International-Kenya versus Teresa Carlo Omondi, leaves a lot to be desired by employees when it comes to matters of fixed term contacts, non-renewals,initiation of the exit interview and exits from the work place.
From the foregoing,it is my position that this is a bad law and it cannot fly for long. It hangs like an albatross around the neck of fixed-termed employees who give their best to their employers only to be shown the door when the timer stops ticking. This judgement should be appealed on the basis of contradictory usage of severable and voidable contractual terms because we enjoy, espouse and have constitutionally protected fair labor relations rights in Kenya. It’s common knowledge that employment relationships are based on contract law, mostly on mutual terms and rarely hot air. It also cannot be lost on us that statutory employment laws and labour principles don’t exist in vain. These have been developed over time, they provide balanced,and the fairest minimum terms of guidance and supervision of employment relationship engagements. Due process must always be reasonably and rationally undertaken especially with the aim of according protection to the weaker party in any employment relationship.
In this particular case judgement, the contract from the employer, expressly and textually, by color, context and texture, promised that on good performance, contract renewal or extension would happen in the future and as long there was no redundancy declared in the position. For clarity,here is the citation, ‘TI-Kenya is pleased to offer you employment as the Deputy Executive Director/ Head of Programmes for a period of two years.This employment is effective 1st October, 2010 and ends 30th September, 2012. Further extension of this contract shall be subject to satisfactory performance and on-going requirement of your services by TI-Kenya.’ Based on this contract clause, it is not by design or mistake when any would-be employee places reliance on this clause and goes to give their all,blood and sweat, to current engagement in the hope of an assured degree of job security while bypassing other best, fair and favourable employment opportunities.
Conscientiously,at the work place,where performance appraisals have been reported as positive, employment termination simply on the basis of one factor, of effluxion of time, with override on conditional factors, and without any explanation of proximate and reasonable reasons ought to be voidable. Declared null and void on the basis of non-fulfillment of legitimate expectation and the outright lack of a fair justification for the suggested forced employment termination and exit.
Further, for the enjoyment of clarity and interpretation of contracts of employment, and for practicality, terms that equivocally provide legitimate expectation ought to be left out going forward, for they may serve no purpose in deriving maximum benefits, performance and utility from employees.
In closure, slipping away from the doctrine of legitimate expectation, the judge-made law has lost its balance, and from birdlore, an employee may now wish not to be yoked and run with an albatross around their neck.
The realization of the many facets of the right to healthcare is a collective duty. A collective duty, on one end, upon ourselves as countymen, as professionals, as administrators and as government agents to advance the aspirations of the country. This duty cannot be realized without coordinated and strategic plans on utilization of the healthcare human resource.
We have major deficits in healthcare staffing skills and competencies. The ratios of distribution on doctors/specialists/subspecialists/superspecialists across populations/cities/towns/counties/regions don’t pan out. Persons serving can’t keep up with the burn out and intense services demand. By intentionally investing and adopting global standards of training and development, we certainly shall have Kenya and her people stand out in sheer competitive advantage in matters healthcare.
60 years, 6 decades, haven’t we had enough goofing here and there? It is the time to advocate for equitable deployment and distribution of healthcare workers across the country. Our quest to the achievement of universal healthcare and assurance of the right to healthcare-accessibility, affordability and quality care will not just be for Kenya itself but a source of inspiration and an exportable service to other nations.
Mkenya daima let’s, let’s make it our cause and run the course collectively
Majority of healthcare workers are ever striving to do the right thing to offer care services to the best of their ability to humanity. As Kenyans,we all want one thing,a functional and a healthy Healthcare System. What ails our healthcare systems can best be articulated if those on the delivery and receiving side can be given an opportunity to speak about these ills, bottom up, from the users and workers in the system.
At present we are treated to bread and circuses as the Senate Health Committee pockets sitting allowances to re-look deeper into the sickness of our care systems.
I strongly opine that the Senate Health Committee should close this inquiry and sit to enforce immediate implementation of ALL the past Senate Healthcare Crisis Reports and Recommendations. A good place to start would be the Musyimi Taskforce Report of 2012.
We have also heard that Medical Interns are well paid. This is a half truth. Medical Interns are doctors who currently provide crucial support services at majority of public and private hospitals.That medical interns are paid so well to perform their duties,we highly commend the National government for such an aspiration. Meanwhile, most County governments are grappling with acute shortages of doctors, with very low doctor and specialists to population ratios. It is further despicable that majority of deployed doctors in the periphery keep to selflessly support and toil in the broken system and with unforgettable labour exploitation.
Labour exploitation must end. All work must be remunerated accordingly and with commensurate labour protection as guided by our Constitution of Kenya,2010, Article 27, which provides that every person is equal before the law and has
the right to equal protection and equal benefit of the law. It is also notable that Article 41 provides that all persons have a constitutional right to fair
labour relations. We do have good laws and as per Employment Act of 2007, section 5(4), discrimination in employment is forbidden-An employer shall pay his employees equal
remuneration for work of equal value. Similarly, section 12 of the Salary and Remuneration Commission(SRC) Act 2011 provides that equal remuneration should be paid to persons for work of equal value.
Discrimination at the workplace is DISGRACEFULLY UNACCEPTABLE. Employers promoting employment discrimination and entrenching underemployment must be called out on their practice of giving lopsided contracts,benefits denial, and limitation of the right to collectively bargain.
From the foregoing and following in the trail of our broken healthcare systems, it cannot be gainsaid that it is years of misgovernment, responsibility abdication and general underinvestment by the National and County Governments that we are here today. We blow hot and cold, appoint taskforces, apportion blame and keep to serve paper solutions that remain unimplemented.
It is time to wakeup and STRENGTHEN healthcare delivery systems.
Should we consider the SA model or maintain status quo?
All under one roof,the case of family members,extended family and relatives.
When KNQA resolved to equate HNDs to degrees, they did not get to consult other professional regulatory bodies for concurrence. Similarly, for sometime, CUE has also approved and engaged universities in the same professional degree hawking wagon without stakeholders engagement. It is perhaps time professional bodies chose to guide accreditation standards for paraprofessionals seek to care less about what is desirable for national and international competitiveness.
So who shall guide this standards crusade,CUE,KNQA,KMPDC? My view would be,as informed by the various cadres quest for professional progress,KHPOA could be made the chief regulatory entity, and all the relevant cadres get to go under different professional regulatory boards within KHPOA. This may need full reordering to bring alignment and order in the health regulatory sector.
Professional and paraprofessional progression,credit transfers and exemptions guidelines, experience requirements may also need to be reviewed and made progressive for those who qualify and are in need of career upgrades to established standards.
The lack of standardized scope of practice guidelines, and several other hidden cards may be the reason why we are stuck in task shifting and show contempt to professionalism.
The value of all cadres, from COs, MOs,DOs, and POs need to be harnessed and developed to internationally accepted standards for us to have healthy healthcare.
I would be elated the day when Kenya will become the first African state leading in the export of professional healthcare workforce after achievement and maintenance of the desired levels of doctor-population ratio in each county.
Let us keep alive the standards qualifications and regulatory discussions ongoing.
How Doctors earn hefty salaries without working.
The Daily Nation Newspaper has resorted to SENSELESSNESS in its reporting. Yellow journalism; jaundiced at best. The bastardization of the noble profession will not be up for sale and scandal-mongering. As professionals,doctors have a solemn duty to uphold the Hippocratic Oath and this shall forever prevail.
Over the years,with rushed healthcare services devolution,doctors have been selflessly serving in a non-responsive extractive healthcare system. This system is run with innumerable challenges ranging from dysfunctional workers management with chronic salary delays running upto 4months, non-payment of workers health insurance,unpaid workers loans,non-remittance of workers savings to Banks and SACCOs, workers job and career stagnation, unprocedural and unfair job terminations and entrenched trashing of professionalism by leaders in charge.
At National and County facilities there has been chronic lack of inspiring leadership and governance brought in by politicization of healthcare, fragmented and inequitable healthcare financing, chronic lack of medical pharmaceutics, products, vaccines and broken service technologies.The healthcare system continues to suffer workforce mismanagement, irregular and retrogressive specialists training, discriminatory and shadowy hiring of Foreign Doctors in preference to the patriotic Kenyan doctors and specialists who are always on the receiving end of uninformed bashing and philippic. Which Foreign Doctors handled the Covid Pandemic in Kenya? Our very own children rose to the occasion to the point of losing their lives in service. As a fraternity and as a nation we are yet to recover the specific skills sets lost in the pandemic.
A major point of disagreement is the misinformation and hasty generalization by the newspaper, in that,doctors are ever absent in the hospitals,yet patients keep going to the same hospitals for services,making long queues to access services from understaffed and overworked caregivers.Doctors work in shifts continuously providing services 24/7,all days in a year. Doctors are trained to attend to different conditions and illnesses. This is what is referred to as specialization and it’s towards providing the best standard of care. Some county hospitals have a handful of general doctors and specialists because the county governments have refused to plan and onboard adequate qualified healthcare human resources to provide the much needed services.
From the foregoing, to the extent of blatant misinformation and disparaging of professions through political mischief,undertones and hasty generalizations,it is only an orderly DEMAND that the Daily Nation Newspaper
RETRACTS and CORRECTS its publication on its front page on the 24th of September 2022 by issuing a full front page apology. This offending publication as done is intended to cause contempt, misinformation, opprobium and ridicule of the noble professions(Medicine, Dentistry and Pharmacy). Doctors cited therein with specificity have enough reasons to take legal recourse against the newspaper with attendant damages and quantum. Doctors are NOT and have NEVER been in the business of conmanship-‘Doctors Con Game’. Further, the newspaper, if it was good spirited, it would publish on a daily basis a series of all issues bedeviling and belabouring the healthcare system. Factual and issue specific reporting towards resolving the multiple sickening systemic healthcare issues is long overdue.
Enough is enough. Let us fix our healthcare system, the right way, through the known building blocks, and not by beating up the toiling and weary caregivers.
We have amorphous proposals being chanted: Babacare v Rutocare and Others et al. What does it mean to all of us as leaders and countrymen? Is it time to cause fine-tuning of conversations towards our favour as a people and for the betterment of our society.
Healthcare agents, activists,lobbyists and unions exist for a purpose and from their vantage position they get to advocate for the change they desire, for the good of a people or against a people. Advancement and realization of the right to healthcare is that socioeconomic benefit that our country,Kenya, owes its citizens as per the constitutional edict of 2010. How much progress in healthcare would we be comfortable with in the next administration? Do we have a realistic score matrix of how the outgoing administration has performed in matters healthcare? From brick and mortar structures, management of human resources for healthcare and planning of future developments in healthcare.
Our votes and voices as a people is the currency to acquire a permanent and progressive mark in the country’s healthcare. Questions are many and the answers are wanted and wanting. Who among the political agents has the best, feasible, practical and realistic healthcare reform proposal? Would one dare follow a cure to their ills and suffering or would one rather be comfortable with the warts and all?
My wish from August 2022 is Healthy Healthcare and a Healthy Nation. What is your wish? Tick-tock, tick-tock, tick-tock, bleeeep.
Did you know that we have less than 40 Oral and Maxillofacial Surgeons in Kenya?
This small number of specialists are distributed in 10 counties ONLY:
Nakuru,Nairobi,Mombasa,Kitui,
Embu,Nyeri,Kiambu, Uasin Gishu, Makueni and Meru.
Close to 50 Million citizens get to be served by the specialist doctors.
Some of the conditions dealt with by the specialists include the high cases of oral cancer, tongue cancer,jaw cancer, all road traffic injuries of the face and head, all major dental disease conditions, all cases of congenital defects of the face such as cleft lip/palate and many other varied diseases and disorders of the head and neck area.
Did you also know that the rest of the citizens in the larger country have to keep up with intercounty transfers and referrals on a daily basis to seek specialists services care? Isn’t it exhausting and expensive enough ? The Ministry of Health has a cure.
Let’s make a toast to the Council of Governors for the progressive specialist training reforms-“We have enough problems!”
Kenya Medical Practitioners, Pharmacists and Dentists Union (KMPDU) champions for the rights of health workers in the country and the progressive realization of the right to healthcare.
Pursuant to requirements of public participation as stipulated by the Constitution of Kenya,2010, Article 10 on principles of good governance, and following requests for submission of memoranda as guided by National Assembly standing orders, as a union, we have several times submitted memoranda to the National Assembly Health committee since March 2021 on the proposed HealthLaws Ammendment bill no 2 of 2021. On the proposals made, none of our proposals have been factored in the laws and we are concerned on the kind of inclusive and participatory governance being adopted into the regulatory boards.
The objective of the bill is reported to be the need to align board leadership in health regulatory bodies in accordance with Mwongozo Code of Governance, 2015.
As a union, we have made a general note of the following inconsistencies in the proposed amendment laws:
*The proposed laws do not provide qualifications of chairpersons relevant to the field being regulated
*The proposed laws do not provide qualifications of board members relevant to the field being regulated
*Multiple government agents have infiltrated and ousted key stakeholders in the boards in a move that demonstrates major conflict of interest. These proposals will stifle board efficiency, operations and entrench bureaucracy and corruption. This demonstrated over representation of government agents in the professional regulatory affairs ought to be checked majorly through self-regulation by the professionals themselves.
*There is demonstrated lack of rationality, proportionality and independence from the appointing authorities who seek to reward non-professionals with board positions in regulatory authorities meant for professional self-regulation. This hijack of professional autonomy and duties is discriminatory, exploitative and retrogressively unbalanced if we are to ever plan to attain universal healthcare as country. We cannot attain much desired progress by relegating healthcare workers in their day to day professional regulatory affairs.
*Further we make reference to recent court precedents on the need to have appointing authorities (President, CS and PSC) become harmonized as per the existing statutory laws.
It is our hope that Members of the National Assembly will return the proposed laws to the Health Committee and cause amendment to the proposed laws to cure them of the raised inconsistencies, demonstrated conflict of interest and over-infiltration of multiple government agencies into professional regulatory affairs.
Doctors are the richest persons in our society. They get rich through their calling, coins and a tough touch of passion juice.
The National and County Governments, Ministry of Health and University of Nairobi have decided. They have decided that we have enough doctors in the country. Enough doctors and specialist doctors who aspire everyday to fill the demand and need for healthcare services.
Doctors are ailing. Ailing for being spoilt for choice over the years. Ailing for being left without a choice but a headache for a career. Who shall treat yourselves and themselves in the near future?
Our national leadership has decided to import doctors and specialists to provide the much needed healthcare services, handholding and mentorship of the jobless doctors. Our public taxes must be utilized to cater for our realization of progressive right to healthcare.
The Ministry of Health and Associates has also decided to reduce the number of doctors going for training and intending to serve our country people. To add salt to injury, targeted and on narrow spectrum strategies, fees for a healthcare degree must rise. A potent regimen for the society’s illnesses. As a people are we going to take this kneeling or lying down, choiceless and in need of our own home-made cures? We keep to queue. Wound dressings, dry gauze and a sticky strapping.
A calling through calling letters. From 2021, to train as a doctor will now be considered entrenched social inequity, a preserve for the well endowed,those without the tarmacking passion and those ready to go through the enriching strenuous specialization route.
Universal Healthcare here we come. We come with our young doctors remaining hopeful as our country disease burden remains unchecked. We remain watchful as the cost of accessing quality healthcare rises from general inflationary costs,limp and myopic social development plans. Is it band-aids we need? Band-aids for our bloated, boastful, mischievous and prideful doctors or band-aids for our state of healthcare.
It’s time. It’s time when we as a society looked at the cost of production of healthcare providers towards reducing health inequalities for the much needed social and economic progress of our country.
Vision 20/30.
Regulating Omnibus Bills
An omnibus bill seeks to amend, repeal or enact several laws, and is characterized by the fact that it is made up of a number of related but separate initiatives.
A reason cited for introducing an omnibus bill is to bring together in a single bill all of the legislative amendments arising from a single policy decision in order to facilitate parliamentary debate. A question arises, is this practice of legislative drafting an intelligible and reasonable strategy as guided by principles enshrined in Constitution of Kenya 2010, Article 10 on good governance?
In the case of Commonwealth v Barnett, with reference to American parliamentary law in 1901, the Court used these words: “Bills, popularly called omnibus bills, became a crying evil, not only from the confusion and distraction of the legislative mind by the jumbling together of incongruous subjects, but still more by the facility they afforded to corrupt combinations of minorities with different interests to force the passage of bills with provisions which could never succeed if they stood on their separate merits. So common was this practice that it got a popular name, universally understood, as logrolling. Could we be having logrolling happening in our 12th parliament without our knowledge?
Omnibus legislative drafting practice has been growing. It is my considered view that perhaps it’s time we had the practice regulated for it’s curtailing of rights on effective public participation on governance and policy proposals. Legal frameworks should not grossly entertain Omnibus Bills. A guiding law ought to issue to prescribe that no bill shall contain more than one substantive subject matter, and which subject shall be clearly expressed in the title. This is to allow for intelligible and orderly, reasonable and undistracted debate on legislative proposals.
kmundia 