Strikes in essential services in Kenya : the doctors, nurses and clinical officers' strikes revisited and lessons from South Africa

Abstract

The right to strike is one of the fundamental rights enshrined in the Kenyan Constitution, 2010. Any limitation to the right involves the danger of collective bargaining. The right to strike is derived from the Right to Organise and Collective Bargaining Convention, 1949 that Kenya ratified on 18 July 1951. Article 2(4) of the Constitution emphasises that any law inconsistent with it is void. The Kenyan Labour Relations Act, 2007 gives effect to the constitutional right to strike but is also subject to a number of limitations. Such limitations include the prohibition of strikes for employees who are engaged in essential services. Although the limitations to the right to strike may be justified, a number of bottlenecks exists in the current scope and application of the Labour Relations Act. For example, the Labour Relations Act does not provide mechanisms in terms of which essential service employees can lawfully embark on strikes. Unlike disputes in South Africa, those about essential services in Kenya are not preceded by consensus-seeking processes such as conciliation, mediation and arbitration. Instead, essential service disputes are referred directly to the Employment and Labour Relations Court for litigation. Consequently, the rights of employees who are employed in essential services like hospitals and patients' right to access health care services can easily be violated. Due to the lacunae in the Labour Relations Act, an increase in the number of strikes in essential services has been witnessed in Kenya. This article argues that the litigation of disputes in essential services should be the option of last resort. In addition, to date, more than 11 years after the Labour Relations Act came into effect, no provisions have been incorporated or even suggested that employer and trade unions need to conclude minimum service agreements and designate employees to perform the minimum services. This article suggests that, trade unions and government can work together through adopting consultative and more inclusive approaches in order to establish an effective statutory framework that regulates the right to strike in essential services in Kenya.