MASERU – While governments worldwide are intensifying the fight against Corona Virus (Covid-19), Lesotho doctors are still working without personal protective equipment (PPE). This is despite the coronavirus’ documented prevalence and continued spread in the neighbouring South Africa, a country that is entirely surrounding Lesotho.
Lesotho Medical Association of Lesotho on behalf of doctors in the Public Service have had to approach the High Court (sitting as the constitutional court) to compel government to avail safety equipment in order to render their working conditions favourable. Doctors say the working environment (without the requisite working and safety equipment) is in violation of their right to just and favourable working conditions as well as freedom from forced labour and slavery.
While their application was filed in December last year, the Constitutional Court sat on Thursday last week to determine their case. Despite the judiciary having been affected by the national lockdown and as a result the normal operations of the courts being affected, it became necessary to determine the case due to the corona virus outbreak and because doctors are providers of essential services. The doctors have alleged they are forced to operate with bare hands in extreme situations.
“We do not have the requisite tools including amongst others safety kits and from time to time we work with our bare hands handling patients with open wounds and sometimes with highly communicable or infectious diseases…” court papers state. Their association wants the court to intervene in the unfavorable working conditions they allege they are working under.
“That the respondents coercive approach to have applicant’s members working under working (sic) environment absent the requisite working and safety equipment be declared unconstitutional for violation and/or threat to applicant’s right to just and favorable conditions of work, freedom from forced labour and slavery, right to physical, mental, emotional life and freedom from violation of freedom from inhuman and humiliating treatment.”
Also, they have asked the court to review the M600 call allowance of M7.50 per hour to be increased to M10 000 (150 per hour). The allowance has been withdrawn by the ministry but the doctors want it back at an adjusted rate. “That respondents be jointly and/or severally directed to pay applicants M150 call allowance per hour and/or even more depending on the number of calls done as a fair and reasonable pecuniary return in line with constitutional right to “equality”
On top of that, the association wants the court to direct that doctors be paid a housing allowance of M10 000, which the government approved but the doctors want the housing allowance to be paid directly to them. According to court papers, the doctors are forced to do house calls and are threatened that government will effect a “no work no pay” principle should they stop doing calls. They contend their constitutional right to equality, dignity and the principle of equal pay for work of equal value is violated by government’s failure to pay the call allowance.
Due to the staff shortages, intern doctors are left to operate without supervision and also operate without any contract of service. The medical association says its discriminatory that intern doctors are operating without a contact of service and want the court to nullify it.
“Respondents attitude of coercing intern doctors to work unsupervised including doing calls without pay and any contract of service be declared a threat to life, unfair and discriminatory against intern doctors,” papers show. The medical association wants the court to order that intern doctors be given a temporary preferential treatment to be absorbed into the public service, with pay and benefits so as to put them at par with their colleagues in the profession.
The association’s vice secretary, Dr Tlabi Nteboheleng, states in her affidavit that the organisation had to approach the courts of law after their attempts to convince government to meet their demands failed. She said their demands have been communicated with different governments in vain.
“Since 2015 to date, doctors had through 1st applicant and personally endlessly communicated their hue and cry to the government authorities namely: The Minister and or Principal Secretary Health. However, the government had refused and/ or unreasonably failed to heed to same and regularize the situation in order to protect and save lives of its poor decisions within its economic and development capacity.”
She said in all their communication with government, they complained about: the lack of requisite tools of work, the fact that District Medical officers do not receive benefits and that there is no clear postgraduate plan for doctors who have completed the two-year internship programme as well as the absorption of Basotho doctors into the public service after internship.
Instead of giving a reasonable approach to their grievances, Dr Tlabi said government threatened and blackmailed doctors to soldier on or face expulsion and that the threats resulted in two doctors – Dr Moseme Makhele and Malitaba Liataba – being suspended. She argued the suspension is aimed at deterring doctors from continuing to urge governmental intervention to their demands.
Dr Tlabi argues the government is bound to intervene and save poor Basotho who cannot access standard health services abroad by buying the necessary equipment to improve the health services. “It is worth mentioning that government is economically and otherwise able and bound to remedy the aforesaid conditions in order to protect threatened lives of the patients and doctors alike.”
Tlabi added: “The required laboratory tools or equipment plus reactants were once purchased from time immemorial and some of the tools have been broken for non-maintenance, others totally broken and there is an urgent need for total replacement while others have long finished. “Furthermore, even the few tools that are there are inadequate to cater for all patients owing to amongst others, the increased population and the attendant doctor patient ration.” In a shocking revelation, Tlabi states that only tools relating to haematology are available with the rest not available. She contends the unavailability of the tools is a recipe for more deaths.
“This is extremely shocking and hazardous to the continued existence of human life in Lesotho, this means more unnecessary and untimely deaths which are blamed from the hands of the doctors by the bereaved families while government insincerely cries medical negligence on the part of doctors.” Tlabi noted the government’s failure to provide the necessary equipment will result in many lives being lost until the situation is taken care of.
“As a result of government unreasonable and negligent hostility mentioned above, in particular failure to provide the necessary equipment, many innocent lives have been lost, people are perishing and yet to perish in doctors’ hands, until the government remedies the situation. “This loss of lives in our hands and working environment threatens our physical and mental health, subjects us to continued emotional shock and violates our personal and professional indignity.”
The government is opposing the application and has asked the court to dismiss the application. Principal Secretary in the ministry of health, Thebe Mokoatle asked the court to decline jurisdiction because the application “deals with the principles of the state policy”. Mokoatle argued the socio economic rights that the complainants present are not justifiable and therefore cannot be enforced by a court of law.
Also, he said the Lesotho Medical Association is not a human being and therefore cannot claim constitutional violation of human rights and therefore argue that the association does not have the locus standi (legal right to sue). The ministry also said the complainants ought to have approached the High Court in its ordinary jurisdiction not as the Constitutional Court. Judgment has been reserved to April 30 and the presiding judges are Justices: Tseliso Monapathi, Semapo Peete and Moroke Mokhesi.