NAIROBI,Kenya—The High Court of Kenya has granted nine petitioners from the Civil Society, including ICJ Kenya, leave to file a motion for judicial review reliefs against the inspector general of police, Japheth Koome, over his recent remarks on the ongoing nationwide doctors’ strike.
Honourable Justice Jairus Ngaah, who certified the matter as urgent, noted that the petitioners were within their rights to apply for judicial review reliefs under Article 23 of the Constitution and Section 11 of the Fair Administrative Actions Act,2015.
In a scathing statement threatening doctors against picketing, Koome referred to medics as’ a public nuisance’ and directed police commanders to ‘firmly and decisively’ deal with them under the guise of maintaining law and order.
Petitioners who had earlier served Koome with a demand letter calling him to retract his statement failure to which would result in the initiation of court proceedings against him, have now been granted leave to pursue judicial review orders. The Court also ruled that the grant of leave shall operate as a stay restraining the respondent, Japheth Koome Nchebere, the Inspector General of Police or any officer subordinate to him, from enforcing Nchebere’s decision of 14 April to suspend Articles 36,37 and 41 of the constitution by cancelling medics’ right to strike and to picket peaceably and unarmed,” read a section of the ruling.
Specifically, the ruling has granted leave to the applicants to pursue judicial review reliefs, including a declaration that Koome or any other superior officer within the National Police Service would be found liable under the doctrine of command responsibility for,
i) issuing unconstitutional orders and directives to officers under their command to use unlawful force to disperse peaceable and unarmed strikes, assemblies, protests and pickets under Articles 36,37 and 41 of the constitution.
ii) “Abdicating effective control of police officers under the command by failing to investigate and discipline officers who violate the constitution by using unlawful force to disperse peaceable and unarmed strikes assemblies, protests and pickets contract to Articles 36,37 and 41 of the constitution.”
The petitioners have also been granted leave to pursue judicial review relief directing the respondent to investigate and discipline police officers who have violated the constitution by using unlawful force to disperse peaceable and unarmed strikes, assemblies, protests and pickets by medics.
“The investigation to include the OCPD of Capitol Hill police station and any other officer culpable of using unlawful force against Dr Davji Attelah and other medics at a peaceable and unarmed strike, assemblies, protests and pickets on 29 February 2024 at Afya House,” the ruling reads
Further, the petitioners have also been granted leave to pursue judicial review relief that the inspector general be and is ordered i) to publish in a newspaper of national circulation within 14 days an apology to Dr Attelah for the police’s violation of his rights. This will further include filing an affidavit within 30 days with details of how he will comply with the court’s orders.
ii) To compensate Dr Davji Atela in the form of damages from his personal funds after Dr Davji’s rights were violated during the 29 February 2024 incident that led Dr Davji to sustain serious injuries.
iii) to pay from his personal funds litigation costs to deter his future attempts to suspend the constitutional right to freedom of association, assembly, demonstration, picketing, petition, labour relations and use of unlawful force to disperse peaceful and unarmed strikes.
The applicants have now been granted leave by the court to file a substantive motion for judicial review reliefs regarding the aforementioned prayers.
“Pending the determination of the question whether the applicants’ right under Article 37 of the constitution to assemble, to demonstrate and picket and to present petitions to public authorities were violated, leave granted shall operate as stay of actions of the respondent more particularly in terms described in prayer 3 of the summons.” said Justice Ngaah.
Further directions on the filing of a substantive motion entail, filing and serving the motion within seven days of the date of the ruling, the filing and serving of a response to the motion by the respondent within seven days of the date of service of the applicant’s motion.
Directions on the manner of disposal of the motion shall be given on April 30,2024.
Doctors’ Strike
The nationwide doctors strike has been ongoing since March 13,2024.
Attempts to resolve the impasse in recent weeks has proved futile with the Kenya Medical Practitioners, Pharmacist and Dentists Union (KMPDU), accusing the government of being non-committal in addressing its plight.
In turn the National and county governments have threatened to sack striking doctors saying a consensus can only be struck once they agree to return to work.
Some of the contentious issues from the doctor’s strike include the implementation of the 2017 Collective Bargaining Agreement (CBA), posting of medical interns,comprehensive medical cover, postgraduate training, and employment of doctors.
The doctor’s strike comes at a time when the government is transitioning from the National Health Insurance Fund (NHIF) to the Social Health Insurance Fund (SHIF) established in 2023.
ICJ Kenya’s Perspective
ICJ Kenya Council chairperson Protas Saende has called on the parties involved, including doctors, KMPDU, the Ministry of Health (MOH), the Council of Governors (COG), the Public Service Commission, the Salaries and Remuneration Commission (SRC), Ministries of Labour and Social Protection, National Treasury, and the Head of Civil Service to resume talks on a clean slate.
The commission of jurists has urged parties involved to implement the following recommendations in a bid to restore normalcy.
The Salaries and Remuneration Commission, for instance, has been urged to, ”acknowledge and ensure that healthcare workers, including medical interns, receive fair and competitive compensation that recognises their training, expertise, and nature of work.”
“Adequate pay will also help curb the brain drain witnessed in Kenya despite the significant investment in training doctors, nurses, clinical officers, and other healthcare workers,” added ICJ Kenya Council chairperson Protas Saende.
Amid the issue of past and unimplemented agreements, parties including the state actors in the National and County governments, have been urged to honour all agreements resulting from all concluded negotiations and all court orders resulting from adjudication processes.
“We call upon the National Treasury, NHIF, and the Ministry of Health to ensure the immediate release of funds owed to public and private health facilities by NHIF so that beneficiaries continue to receive the health insurance they are entitled to,” said Saende.
