Striking Kenya Doctors and Nurses Cannot Be Sued for Murder


The striking Kenyan medics are accused of causing citiz n d Athens

By:Alexander Opicho 

Somalilandsun-During the 2016 December-long strike by Doctors and nurses in public hospitals, the government of Uhuru Kenyatta issued a statement that it was going to sue the doctors and dentists union leaders as well as the individual doctors and nurses with murder for the deaths of the patients that died in all the public hospitals during the strike.  The government made this statement as both a legal and a political initiative; however it all boils down to a question of good governance. These situations provoked several questions about capacity of a government driven by political partisanship to protect human life. Above all else it was a governance question of whether the government has a lawful right to sue the striking doctors with accusation of murder for the patients that died in the public hospitals by the time the doctors and nurses were on strike?

Answers to the above question cannot be solely sourced from the realm oflaw as used in the court and other dispute solving institutions. But instead,an eclectic or interdisciplinary approach to answering this question will provide good answers for Kenya and its social-political contemporaries. Basically, logic, psychology, economics, theory of politics, literature, as well as contractual, constitutional, criminal, industrial and medical law have to be uniformly invoked in search for the viable and reliable solutions to such a social-political quack-mire as evinced in the striking public health workers in Kenya.

Psychology has it that it is better for the Doctors and Nurses to come out and strike in public so that the common man can know and take necessary precautions, other than doctors and nurses to pretend that they are working when they are not. A health workers’ go-slow can be the most dangerous, given the ignorance of most of the patients and the faith they have in anybody putting on a white-lap coat at their bed-side. I mean a physician’s go-slow can turn into an arsenal. This is possible given the rational perception that a doctor is only loyal to the oath of Hippocrates when the mood and frame of the mind is supportive. Other-wise the Hippocrates oath is not chain that tethers a doctor or nurse to the detention of poverty amid possibilities of prosperity.

Economics and theory of politics do not favour the Kenya government against striking Doctors. Political realism has always averred that in any capitalist democratic system the government uses accumulated capital and police as well as the judicial machinery at its disposal to intimidate the trade unions. In fact this is an established Machiavellian theory of capitalist democracy. However, it is unfortunate that this is a weapon of power that cannot be applied to wring obeisance from the members of sensitive labour organization like the medical workers union. To make it worse, substantial percentage of the medical professionals in Kenya belong to the ethnic communities that currently subscribe to opposition politics. Communities that are now loyal to the government of President Kenyatta are not in tough professions like medicine, they are mainly attracted to life of a peasant merchant but not arduous, even though high paying professions. A lesson to be learned in this situation is that you do not only need economic power and tyranny of ethnic numbers to maintain political power, you similarly or even more strongly need technical power to form a secure government.

The striking Kenyan medics say their remuneration does not equal their services Those of us that read George Orwell’s (Eric Blair’s) Animal Farmwe are able to decipher that the way in which President Kenyatta and his government are dealing with Corruption, labour issues, development agenda, and devolution in Kenya is purely a case of some animals being more equal than others. The more equal animals being the political class taking the role of Jones; politicians on the side of the government being the pigs ; while top-notch civil servants likepolicemen and the military playing the role of Benjamin the Donkey lulled away from the burden of being loyal to a corrupt government by a sugar cant in their mouthsof opportunity to steal from the state and become rich. Workers   like the doctors, nurses and other true soilers being the animals in the firm striking against Jones and the windmill project. They will one time win, maybe in 1984but postponed to a later time of the right moment.

The law is in the same stretch against the government. The Kenya constitution empowers affected families to sue the government not the doctors, criminal law which operates on the logic and law philosophy of mens rea(malicious afore-thought or bad intention) and actus rea(malicious commission or omission or a bad act) to establish a crime,wholesomelydoes not have any definite position in this juncture, to establish culpability of striking doctors and nurses in Kenya to have perfected commission of murder as initially intended to be alleged by the government. Labour law allows Doctors to hold a lawful strike, civil law of contract and tortbothpin down the government in favour of the doctors on the basis ofstrict liability and vicarious liability.

Alexander OpichoThe same civil law awards the doctors a benefit of prescription, which means time-justified injury; people have been dying in hospitals ever since, they are not dying this time round because a doctor and a nurse are on strike, moreover, there is no quantifiable prove that if a certain Doctor X had not gone on strike a certain patient Y would not have died. Let the government of Kenya pay its civil servants the way it is paying its loyal politicians.

The author Alexander Opicho is a poet , Horn Africa analyst and regular contributor to somalilandsun from his base in Lodwar, Kenya