Public service doctors have removed a contentious clause barring them from private practice in a document filed in court yesterday.
The doctors version of the return-to-work formula (RTWF) struck off the clause, which reads: “All medical doctors, pharmacists and dentists shall strictly adhere to their terms of employment in regard to engaging directly or indirectly in any other gainful employment and/or private practice as a partner, employee, consultant, director, manager, agent, associate or otherwise.”
They also want the government to be compelled by law to pay them the three months salaries and arrears since December 5 last year, when they went on strike.
There are, hence, two conflicting RTWFs drafted by the parties.
Yesterday, their lawyer Philip Murgor explained that the clause that was expunged from the document filed in the Court of Appeal was “unconstitutional and discriminatory”.
Argued Mr Murgor: “Even a messenger can have a side business.”
He however said everything else in the document was agreeable to the doctors and that he hoped the government will sign the document today and end the 100-day strike.
Appellate judges Hannah Okwengu, Martha Koome and Jamilla Mohammed had earlier given the parties a last chance to allow the doctors to sign the document.
“In light of the urgency and because of public interest, we are ready to give mediation a chance since poor Kenyans are suffering,” they said then. “We are willing to bend backwards.”
Even though they pointed out that they were worried the talks had gone on for too long, the doctors pointed out that, indeed, various issues had already been resolved.
“Doctors are not able to go back to work because the RTWF has not been agreed on,” they added.
“Governors are ready to look at it but the (Health) ministry says it is no longer interested in negotiating.”
The judges sternly pointed out that the real issues that forced the doctors to go on strike had not been resolved and hinted at the possibility of referring the dispute to the Employment and Labour Relations Court.
But before then, they insisted that for the strike to be called off the RTWF must be signed by all parties despite protests by the Ministry of Health and the Attorney-General that there was no room for further negotiations.
“We appeal to all parties, including the ministry, to be guided by best interest of Kenyans, who are suffering for lack of public healthcare, put differences aside, their egos too,” the judges ruled.
They asked religious leaders to give guidance in a bid to bring a compromise and resolution to the matter, “therefore giving parties the chance to find compromise before case is mentioned today at 10.”
Before the ruling, Ms Stella Mbitho, for the ministry and the AG, told court that the government had withdrawn its offer and even discarded its copy of the RTWF since talks had failed to yield results.
She urged court to consider hearing the appeal by officials of the Kenya Medical Practitioners, Pharmacists and Dentists Union (KMPDU) on their jail sentence.
She also said the government was not privy to the draft presented by the doctors’ union but, if parties agreed to have it signed, the Collective Bargaining Agreement can only be implemented through court.
However, defending the document presented, terming it “not strange”, the Kenya National Commission for Human Rights (KNCHR) appealed to the State to get involved in the matter.
“KNHCR came into this matter to make sure that all Kenyans, regardless of their status, can access healthcare,” said Mr Suyianka Lempaa for the commission.
In the document, key signatories are Health Cabinet Secretary Cleopa Mailu and Principal Secretary Nicholas Muraguri for the national government; the 47 counties, through Kisii Governor James Ongwae, who chairs the Council of Governors’ Labour and Human Resource Committee; and the KMPDU.
Chief of Staff and Head of Public Service Joseph Kinyua, KNCHR chair Mbogori Kagwiria, Law Society of Kenya’s John Ohaga and Anglican Church of Kenya Archbishop Dr Jackson ole Sapit were to sign as witnesses.
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