"The law is an ass"

Who said, “the law is an ass”? In my quest for the answer, I turned to Google, my favorite search engine. The search reveals that several sources attribute the phrase to Charles Dickens, who popularized it in Oliver Twist (1838). The phrase is also found in an earlier work by English dramatist George Chapman, Revenge for Honour (1654). Below is a quote from Oliver Twist:

When Mr. Bumble, the unhappy spouse of a domineering wife, is told in court that ‘…the law supposes that your wife acts under your direction,’ replies:

‘If the law supposes that,’ said Mr. Bumble, squeezing his hat emphatically in both hands, ‘the law is a ass - a idiot’.

Mr. Bumble cannot understand how the law can possibly hold him responsible for the theft committed by his wife. Yet, the law holds him responsible!

Indeed, there are times when the application of law seems to defy logic, if not common sense. I am reminded of the stand-off between the Judicial Service Commission (JSC), and the Salaries and Remuneration Commission (SRC), over sitting allowances for the members of the JSC. The JSC Secretary argued, correctly, that the SRC had overstepped its mandate in encroaching on a matter that did not concern it.

What if the strikes that continue to disrupt the public sector are caused by the SRC overstepping its mandate? What if the SRC’s intervention in compensation matters is the cause of the disruptions currently being witnessed? What we know is that the SRC conducted job evaluation exercises for the public sector with the objective of setting up compensation structures. Unfortunately, besides applying these incorrectly, the exercises were conducted using systems designed for factory and operatives’ jobs.

Teachers in primary and secondary schools in Kenya went on strike to force the employer to honour a CBA of 1997. The doctors have been on strike for nearly two months, now, over what they consider the employer’s retreat from a CBA entered into in 2013. And that is not all. We now have the public universities’ employees on strike over a CBA that they accuse the employer of not honouring. It would be unfortunate if the employers are relying on the SRC’s advice, regardless of its flaws, to override earlier CBA commitments. Such an ostrich approach can only lead to further escalation of the crisis in the public sector.

It is important to note that the Salaries and Remuneration Commission was created by the Constitution of Kenya 2010 with a mandate to:

a.      “set and regularly review the remuneration and benefits of all State officers; and

b.     advise the national and county governments on the remuneration and benefits of all other public officers.”

From the outset, the SRC has made every possible mistake in the book. Its first mistake was an attempt to execute its first mandate through job evaluation exercises. What should have been obvious to the Commission, and also to employers in the public sector, was that setting pay levels is a matter of economic considerations, prevailing community pay levels, the employer’s fiscal policies, and the employer’s ability to implement and sustain a manageable compensation structure. Job evaluation exercises, which the SRC undertook as the starting point, were not designed for setting remuneration and benefits levels. These exercises were meant for different purposes, the most important among them being to minimize or remove inequalities in a pay structure.

Is it likely that the SRC’s activities, whether they make sense, or not, have some bearing on recent court decisions touching on Collective Bargaining Agreements in the public sector? Well, regardless of how unreasonable court decisions may appear, litigants are forced to obey them! And until the incongruences arising from the premises on which a law is applied are debunked by learned lawyers, litigants will often be compelled to obey such rulings. At times, indeed, “The law is an ass”.