Allegations of apartheid-style discrimination made by a group of doctors against an internationally-linked medical research institute have been questioned by Kenya’s court of appeal. The court overturned an earlier decision by the high court that found the Kenya Medical Research Institute (KEMRI) infringed the doctors’ rights to equality, dignity and property among others. The findings were particularly serious because, on the strength of them, the high court judge had also awarded significant damages against KEMRI to each of the doctors. The medics were involved as PhD candidates with the KEMRI Wellcome Trust Research Programme linked to Oxford University and their initial application alleged that local black doctors were providing the equivalent of intellectual slave labour to white researchers. The appeal court has now dismissed the original application and the damages award, saying the high court had considered the evidence of only one side in the matter, resulting in a “patent injustice”.

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SA is not the only African country where the courts must consider tension build-up between black and white colleagues over allegations of apartheid-style racism.

Last month three judges of Kenya’s court of appeal decided an intriguing dispute between a respected medical research institute with international ties on the one side and six doctors employed by the outfit on the other.

The doctors had gone to court saying they were discriminated against merely because of their colour. The Kenya Medical Research Institute (KEMRI) was guilty of racism, they claimed, and as a result of this discrimination, the doctors asked the court to award them considerable damages against KEMRI.

The high court not only found the six had been the victims of discriminatory practices but, as urged in the application, the judge went on to award each doctor damages of Kshs. 5,000,000.

When the matter came on appeal, however, that court overturned the decision and award of the high court, adding some serious criticism of both the doctors and the judge.

The appeal court was critical of the six doctors for their claims of racism and discrimination, saying that the arguments made on their behalf stood out “more for their markedly intemperate tone and colourful phraseology than for their accuracy.”

The judges then gave some examples of these “colourfully worded” claims. Under the research scheme African researchers were “meant to do the difficult ‘legwork’ for the white researchers”, the doctors had said. They claimed the PhD research work was structured to ensure the “white master class of researchers” had a steady stream of “cheap, brilliant African doctors and scientists slaving under them and propelling their careers”. The doctors also referred to a “well-orchestrated, apartheid-like system”.

They further claimed that the research project was internationally recognized as an “annexed site”, propagating “a colonial approach to science” with “colonial extractive tendencies” operating to the “detriment of natives”.

None of this had been proven via evidence, said the appeal court. It was “critically important” in an adversarial legal system that the entire case of all parties be considered. And yet the high court had accepted the doctors’ allegations without so much as considering the detailed responses of KEMRI. The high court judgment disclosed this “curious and unusual fact”: the lengthy 210 page blow-by-blow substantive and detailed response to the doctors’ case was not referred to or even mentioned.

“We think that KEMRI’s complaint (that the judge erred) and misdirected himself” by not considering the pleadings, facts and documents, was “totally unanswerable”, given the “inexplicable non-reference, non-mention and non-evaluation” of KEMRI’s main response in its replying affidavit. This amounted to a “gross non-direction”, an “error of principle”, resulting in patent injustice. It left the impression that the entire case of one party was not considered. The result could not be said to be a fair trial, and the appeal court was thus “compelled” to interfere.

Among the grounds on which the doctors claimed racial discrimination was that the award of intellectual jobs showed serious prejudice, as did the distribution of senior scientific positions and pay inequalities as well as prejudice and “condescension” against local African workers.

The doctors were attached to the Wellcome Trust Research Programme, and their post-graduate studies were to lead to the award of a PhD in their field. Further, the programme was owned by Oxford University and it operated through the Nuffield Department of Medicine as one of its global health centres funded by Wellcome Trust.

The outcome of the doctors’ application obviously came as a shock to KEMRI, which immediately appealed the decision.

In KEMRI’s response to the initial application, it had said the doctors had failed to disclose significant information to the court, misrepresenting key facts to mislead the court and that they litigated “with unclean hands”.

Among other responses, KEMRI said the doctors had negotiated and mutually agreed contracts with KEMRI, and that the programme offered favourable terms and benefits to its researchers including the doctors – better than those offered by researchers in government and other organisations. The foreign researchers had contracts in their countries of origin with other institutions and organisations and KEMRI was not in the least involved in those contracts.

At one stage the doctors were suspended for less than 48 hours on the grounds that they breached KEMRI’s policies and acted in bad faith. But the suspension was quickly lifted, and the doctors were put on paid leave so that their allegations could be properly investigated.

KEMRI said that in meetings with the dissatisfied doctors they repeatedly agreed to produce evidence of discrimination that they claimed to have, but that this was never forthcoming. After their brief suspension the doctors refused to resume work despite letters to them from KENRI but they were nevertheless paid in full for the rest of their contracts even though they were not working.

As to the damages awarded to the doctors, the appeal judges said that while some similarly-placed doctors returned to work and continued with their studies, the six who brought their application “rebuffed” KEMRI’s call to do so. “Having created that state of affairs, it seems quite surreal that the doctors should turn around and seek compensation flowing therefrom.” Given that they were in any case paid until the end of their contracts even though they did no work, “It would be unconscionable to add anything to their already undeserved payments for the unworked period.” They should thus not have been awarded any damages.

The particular amount awarded by the high court was also “baffling” as there was “absolutely no basis” given for that sum. The judge “essentially plucked the sum … from the air”. Even in a case where damages were appropriate such an award would have to be “interfered with on appeal” for lacking a rational basis and being wrong in principle.

* “A Matter of Justice”, Legalbrief, 12 March 2019