Court halts takeover of Kemsa by military
Chairperson of the Kenya Medical Supplies Authority Board Mary Chao Mwadime addressing the media on November 4, 2021.
The Labour court yesterday halted a decision by the Kenya Medical Supplies Authority (Kemsa) Board to lay off over 900 staff and enlist the NYS and Kenya Defence Forces to oversee operations of the agency.
Justice Kebiria Ocharo said the order would remain in force pending hearing and determination of an application filed by the Kenya Medical Practitioners, Pharmacists and Dentists Union (KMPDU).
Hearing was fixed for November 16.
The medics want the court to find the decision of the Kemsa board to enlist the services of Kenya Defence Forces (KDF) officers and the National Youth Service (NYS) illegal.
The suit follows reports that KDF officers on Monday took over the Kemsa headquarters, just days after Kemsa board chairperson Mary Mwadime announced that the agency's staff had been sent home to pave the way for restructuring.
The staff were informed that the parastatal had run out of funds amid other procurement challenges.
The union’s suit is the second case to be filed against the changes at Kemsa.
The first case was filed on Friday by Nakuru-based doctor Mageri Gikenyi Benjamin.
In its court papers, KMPDU says the Kemsa board together with the Health ministry and the attorney-general breached the Constitution by deploying the military.
Through lawyer Henry Kurauka, the union says in the absence of an emergency or a disaster the deployment of the NYS servicemen and the military is unlawful.
“Article 241(2)(a) and (b) provides that persons enlisted in the KDF are responsible for the defence and protection of the sovereignty and territorial integrity of the republic,” states the trade union.
“They shall assist and cooperate with other authorities in situation of emergency or disaster, and report to the National Assembly whenever deployed in such circumstances. Kemsa is not facing any emergency,” it adds.
Another argument is that the government’s decision contravenes the provisions of Article 24 (5)d of the Constitution which limits the rights and fundamental freedoms of persons serving in the KDF and the National Police Service in respect to labour relations.
It also wants the court to intervene because the staff of the national drug supplier are facing unfair and unjust termination of their employment without being subjected to the due process.
The military officers are set to manage the Kemsa’s Medical Commodities Programme (MCP), which is funded by USAID.According to the union, the military officers will also take over the management of the Commercial Services Directorate, which includes strategic programmes, sales and marketing, which are funded through the Global Fund and Government of Kenya.
The union further questions the criteria used by the board in determining the core and non-core members of staff.
The board had directed the non-core staff to work from home to allow for the restructuring of the agency, while others described as core staff were given a notification of temporary retention of services for a month.
Dr Davji Atellah, the union’s secretary-general, says the government’s decision is also illegal because there was no stakeholder engagement or public participation prior to the implementation of a new staff structure at the parastatal.
