Doctor in court to block SRC plan on non-practice perks

 A doctor has moved to the Employment and Labour Relations Court challenging plans by Salaries and Remuneration Commission (SRC) to scrap non-practice allowances for civil servants.

In the petition, Dr Kahura Mundia seeks court orders suspending the ongoing review processes by SRC, claiming the commission’s decision may end up affecting many doctors, lawyers and judges across the country.

“The decision by SRC to publish the notice to review, reduce and remove the non-practice allowances and implement circulars, directives and guidance on the review reduction and removal of the non-practice allowance would occasion more economic and social harm than good to the affected public Servants,” Kahura states.

He argues that SRC lacks the powers to remove or make changes to the doctors, lawyers and judges salary package. He accuses SRC of not consulting their union, the Kenya Medical Practitioners and Dentists Union (KMPDU).

Public participation

Through his lawyer Benedict Wachira, Kahura states that the directives by the SRC fail to take into account the harsh economic realities of already struggling and disillusioned employees trying to adjust to high inflation as evidenced in the current consumer price indexes.

The doctor is challenging a circular issued in December last year that indicated that the scrapping was effective January 1, 2023, following an advisory by SRC to the Health Cabinet Secretary Susan Nakhumicha and the Public Service Commission.

He now wants the court to issue orders barring SRC from conducting “illegal and unlawful public participation” of the intended process for the removal of the non-practice allowances.

“It is not in law open for the Salaries and Remuneration Commission (SRC) to purport to call for public participation, let alone purport to review the salaries of public officers as by so doing the act of the SRC is not only ultra vires but also contra constitutional to provisions of Articles 230(4) and Article 234 of the Constitution, 2010,” Kahura states.

“It is my concern that the decision, as well as the purported public participation, is not only made without powers but without any legal foundation whatsoever and cannot, therefore, stand the constitutional test of legality,” he adds.

Crack down

Kahura asked the court to find SRC in error.

“Article 230(4) limits the powers of the SRC to recommend to the PSC the salaries and remunerations that can be reviewed and/or revised. The SRC cannot revise or issue directives in the manner in which it purports to proceed,” Kahura states.

A non-practice allowance is paid to doctors, lawyers and judges to compensate them for what the government refers to as exposure to lower salaries of the public service compared to the private sector.

On March 2, 2023, SRC also announced plans to crack down on excess allowances which comprise about 10 per cent of the government’s wage bill.

The commission stated it could not purport to favour doctors, lawyers and judges against other employees who were not getting the same allowances.

SRC noted that doctors, lawyers and judges are sufficiently well paid to attract them to the public sector.

However, doctors pushed back against the planned removal of non-practice allowance, warning the commission of a fierce fight in court.

“Article 234 exclusively gives the PSC the powers to administer public service and set the salaries and remunerations payable to all public officers,” Kahura stated.

On March 8, the Kenya Medical Association rejected the plan to remove allowances.

The Kenya Medical Association in a statement termed the move by SRC as a direct affront to the profession.

KMPDU has also filed similar lawsuit challenging the implementation off SRC circular.

Justice Thande Mugure ordered Kahura to serve SRC, the Public Service Commission, Ministry of Labour, the Attorney General, Kenya Medical Practitioners and Pharmacist and Dentists Union and Law Society of Kenya with his pleadings before the next mention date.

The case will be mentioned on March 16 before Employment ad Labour Relations Principal Judge.