POST INDEPENDENCE LABOUR LAW AND RIGHTS MOVEMENT

TRACING THE LABOUR LAW AND RIGHTS MOVEMENT EVOLUTION IN KENYA FROM INDEPENDENCE TO DATE (2014)

Prior to the actual granting of independence, an African coalition Government was established in April 1962. Tom Mboya became the Minister of Labour. In an attempt to promote industrial peace, Mboya convened a tripartite committee, which drew up an Industrial Charter. According to this charter management reaffirmed that it would recognize and bargain with the unions and the unions committed themselves to reducing the number of industrial disputes by following the established machinery. This Charter considerably assisted the spread of unionism in Kenya and the continuation of the System of industrial relations, which had already been established.

Another important development occurred in 1962. A confrontation developed in the political elections that preceded independence. Much of this confrontation involved the question of trade union sponsorship of its own candidates. The result was a decision that the unions would not enter candidates or behave as political parties. This decision avoided much government opposition and is a policy that has been followed to date.

On the threshold of independence however, both employers and trade unions, felt that it was vital for the infant nation to make economic process, which capital and labour should work together in harmony: the incidence of strikes and lockouts had to be drastically reduced.

Much of the immediate post-independence labour unrest was attributed

to the rivalries which developed between the two fédérations of labour that existed. In order to restore unity in the labour movement and

to negate international unions influence, President Kenyatta (by Presidential decree in 1965) deregistered both the KFL and the KAWC and established a single organization — the Central Organization of Trade Unions (COTU). In addition, he cancelled all affiliations by unions with bodies outside Kenya. COTU's constitution was drawn up by the Attorney- General's Department and entrenched government supervision of COTU's internal affairs. At this time, COTU and its leaders pledged loyalty to the Government and support of the governing party. This pledge has since been reaffirmed.

The Central Organization of Trade Unions (COTU) represents to the government and to outside bodies the trade unions in Kenya. By 1972 COTU was an association of 28 of Kenya's 30 major and distinct national unions. As with most national trade union centres, the basic functions of COTU were

(a) to assist, service and co ordinate the activities of its affiliates, and (b) to represent the affiliates' interests before government

and other outside bodies.

Each of the 30 national unions were organized on an industrial basis. As a result, there were very few jurisdictional or other problems between the national unions. The basic function and activities of ail unions was and today is to organize workers, bargain collectively and to handle workers' disputes and grievances. To accomplish the activities all of the unions relied and still relies upon Shop Stewards and Branch Secretaries to organize and recruit members as well as to, initially at least, handle workers' grievances. Generally, the power of most of these unions was highly centralized in the hands of the General Secretaries. In all cases the General Secretary is the chief executive officer of the unions and, such, the union's highest administrative and executive official. In a number of the unions, he is also the only full time employed official. He generally handles all the collective bargaining and major grievance responsibilities for the union; represents the union to its members and to the public; effectively controls all union expenditures and dominates policy formulation. It should be noted that most of these

The Legislative Framework

In 1965, the Government passed the Trade Disputes Act to regulate

Collective bargaining relationships in both the private and public sectors. To the disappointment of some unionists, this Act did little to change the restrictive legislative framework which existed prior to Independence. Tom Mboya who was the Minister for Labour at the time felt that the trade unions had to take a positive role in development during the post-independence period.

Trade Disputes Act served to place a number of restrictions upon the trade unions' collective bargaining activities. This Act was later amended in 1971 to give both the Minister of Labour and the Industrial Court wider powers over the collective bargaining process. In return for the limitations placed upon their right to strike, the Trade Disputes Act also contained provisions for a compulsory check-off System. According to the Act, employers with more than four union members were responsible for remitting monthly union dues directly to the union's head office. This provision has been extremely important for the growth and stability of the union movement in Kenya. For the first time they could rely on a minimum level of financial security.

Trade Dispute Act does outline the conditions under which a strike shall be unlawful. There are really only two instances whereby a strike is clearly lawful. The first is if a dispute has been referred to the Minister and the Minister fails to refer it to conciliation, investigation, etc. within 21 days. The second instance is where the Industrial Court has made its award but the employer refuses to implement it and as such the union has exhausted ail available procedures. Notwithstanding the foregoing, however the Minister has the power to declare any actual or threatened strike to be unlawful or to require the parties to comply with an award.

Since 1965, several labour laws were enacted by the parliament and more recognition of trade unions was seen and appreciated by the government.

The Labour Law Reform Agenda

In May 2001 a Taskforce to review the Labour Laws was appointed by the Attorney General (Gazette Notice No. 3204), within an International Labour Organisation project. The terms of reference for the Taskforce were:

• To examine and review all the labour laws including the Employment Act (Cap.226); the Regulation of Wages and Conditions of Employment Act (Cap. 229); the Trade Unions Act (Cap. 233), the Trade Disputes Act (Cap. 234), the Workmen’s Compensation Act (Cap. 236), the Factories Act (Cap. 514) and make recommendations for appropriate legislation to replace or amend any of the labour law statutes;
• To make recommendations on proposals for reform or amendment of labour laws to ensure that they are consistent with the Conventions and Recommendations of the International Labour Organisation to which Kenya is a party; and
• To make recommendations on such other matters related to or incidental to the foregoing.

Major points of concern were:

• Extension of the application of protective labour regulation into the informal sector;
• Harmonization of the Kenyan labour legislation within the East African Community;
• Merging and redrafting the different Acts in order to produce a user-friendly and comprehensive labour legislation for benefit the people;
• The elimination of remaining colonial heritage in employment relations and contracts;
• The introduction of an Industrial Court of Appeal to overcome contradicting jurisdiction between the High Court and the Industrial Court;
• Review registration procedures and trade union monopoly based on the Trade Unions Act (Cap. 233) in view of the ratification of the ILO Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87);
• Review regulations on casual employees;
• Setting up of an administration system which promotes involvement and democratic participation of the social partners (role of the Labour Advisory Board, possible involvement of civil society concerned in specific fields, etc.);
• Review possible limitations of excessive powers and influence of the Minister for Labour in industrial relations;
• Creation of an efficient labour administration system (inspection pp.) which is capable of effectively enforcing the laws;
• Review the election procedures for trade union officials, and implement a system of directly elected workers’ representatives;
• The establishment of an affordable, not contribution based, workers social insurance scheme, complementing the National Social Security Fund;
• Promote equity and equality in employment by incorporating anti-discriminatory (gender, HIV/AIDS) provisions into the Employment Act (Cap. 226), and as well as provisions against discriminating sexual harassment.

The tripartite Taskforce, comprising of members from the government, the trade unions (COTU) and the employers organization (FKE), officially handed over five new texts to the Attorney General in April 2004. The five drafts were replace the existing legislation on Labour Law. These drafts relate to the following matters:

• Draft on the Labour Relations Act: an act to deal with the registration, regulation, management and democratization of trade unions and employers organizations or federations, to promote sound labour relations through the protection and promotion of freedom of association, the encouragement of effective collective bargaining and promotion of orderly and expeditious dispute settlement, conducive to social justice and economic development and related matters.
• Draft on the Labour Institutions Act: an act for the establishment of Labour Institutions, to provide for their functions, powers and duties. This text introduces a system of labour courts with exclusive jurisdiction on labour matters. The act establishes Subordinate Labour Courts, as well as a National Labour Court. The latter is a superior court having the same authority, inherent powers and standing in relation to matters under its jurisdiction, as the High Court. Appeals on decisions from Subordinate Labour Courts lie in the National Labour Court. Second appeals lie in the Court of Appeal. This text also creates a National Labour Board, whose main duty is to advise the Minister on labour legislation and matters.
• Draft on the Employment Act: an act to declare and define the fundamental rights of employees, to provide basic conditions of employment of employees and to regulate employment of children. This act contains provisions on freedom from discrimination and from sexual harassment. Provisions on freedom from forced labour expressly domesticate ILO Forced Labour Convention, 1930 (No.

29) and the Abolition of Forced Labour Convention, 1957 (No.105), both ratified by Kenya in 1964.

• Draft on the Occupational Health and Safety Act: an act to provide for the safety, health and welfare of persons employed, and all persons lawfully present at workplaces and related matters.
• Draft on the Work Injury Benefits Act: an act to provide for compensation to employees for injuries suffered and occupational diseases contracted in the course of employment, for insurance of employees and related matters. These texts do now have to follow the path towards adoption

The Task Force repealed all the above pieces of legislation and came up with the following five (5) which have since been enacted:

The Labour Institutions Act, 2007

• Establishes and strengthens institutions which deal with labour administration and management of labour relations; such as the National Labour Board, the National Labour Court, Wages Councils and Employment Agencies
• The National Labour Court will be decentralized to the Districts and Provinces

The Employment Act, 2007

• Strengthens minimum terms and conditions of employment
• Prohibits forced and child labour, sexual harassment and discrimination on the basis of disability, HIV/AIDS status, etc
• Provides for insurance scheme to benefit redundant employees
• Converts “casual employment” to “term contract”
• Raises age for definition of a “child” from 16 to 18 years. This harmonizes this definition with that in the Children’s Act
• Provides for 21 days’ annual leave for all employees; three(3) months’ maternity leave for female and 2 weeks’ paternity leave for male employees
• Safeguards workers’ dues in the event of employer’s insolvency
• Ensures that workers whose employers do not contribute to provident funds do not lose their benefits for years worked
• Migrant workers legally in Kenya will enjoy the same protection as indigenous workers

The Labour Relations Act, 2007

• Promotes protection of freedom of association for both employees and employers

• Streamlines registration of workers’ and employers’ organizations
• Promotes democratic practice in lawful collective groups
• Asserts individual and collective group rights
• Streamlines pre-Industrial Court trade dispute resolution machinery and gives specific time-frames for dispute disposal
• Minimizes room for interference with workers’ right to go on strike by setting out clear guidelines on protected strikes and lock-outs
• Provides for Alternative Dispute Resolution machinery

The Work Injury Benefits Act, 2007

• Modernizes legislation and brings it up to date with the current circumstances and realities
• Eliminates the “ambulance chasing” phenomenon
• Extends insurance cover and ensures adequate compensation for injury and work-related diseases regardless of employer’s solvency
• National Labour Court arbitrates compensation disputes
• Disallows subsequent common law claims

The Occupational Health and Safety Act, 2007

• Secures safety and health for people legally in all workplaces
• Prevents employment of children in workplaces where their safety and health is at risk
• Encourages entrepreneurs to set achievable safety targets for their enterprises
• Promotes reporting of work-place accidents, dangerous occurrences and ill health with a view to finding out their causes and preventing of similar occurrences in future
• Promotes creation of a safety culture at workplaces through education and training in occupational safety and health

Each Act incorporates the principles of the 1998 ILO Declaration on Fundamental Principles and Rights at Work; thus ensuring the basic human values that are vital to our social and economic development. The Task Force drew considerable financial and technical support from the joint GOK/ILO legislative reform initiative with the objective of achieving for the country a new set of reformed updated laws through a coordinated consultative process.

In August 2010, Kenyans promulgated a their constitution which sets out the bill of rights as set out in article 41 of the Kenya Constitution, 2010. Some of the provisions of this article are:

(1) Every person has the right to fair labour practices.

(2) Every worker has the right—

(a) to fair remuneration;

(b) to reasonable working conditions;

(c) to form, join or participate in the activities and programmes

of a trade union; and

(d) to go on strike.

(3) Every employer has the right—

(a) to form and join an employers organisation; and

(a) to participate in the activities and programmes of an

employers organisation.

(4) Every trade union and every employers’ organisation has the

right—

(a) to determine its own administration, programmes and

activities;

(b) to organise; and

(c) to form and join a federation.

(5) Every trade union, employers’ organisation and employer has

the right to engage in collective bargaining.

The industrial court has been entrenched into the constitution and set at the same level with The High Court. Industrial Courts Act was enacted in into law in 2011 with the following objectives:

(1)  The principal objective of this Act is to enable the Court to facilitate the just, expeditious and proportionate resolution of disputes governed by this Act.

(2) The Court shall in the exercise of its powers under this Act or the interpretation of the rights of individuals and parties, seek to give effect to the principle objective in subsection (1).

(3) The parties and their representatives, as the case may be, shall assist the Court to further the principal objective and, to that effect, to participate in the proceedings of the Court and to comply with directions and orders of the Court.

Conclusion

Kenya has seen a considerable evolution of rights and labour laws in the last 47 year. Majority of these changes occurred from the year 2001 when The Labour Law Reform Agenda formed. The most recent is the enactment of The Industrial Court Act, No. 20 of 2011, Laws of Kenya.

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References

The Constitution of Kenya, 2010

The Industrial Court Act, No. 20 of 2011, Laws of Kenya

The Labour Relations Act, 2007, Laws of Kenya

The Work Injury Benefits Act, 2007, Laws of Kenya

The Occupational Health and Safety Act, 2007, Laws of Kenya

Trade Union Power and the Process of Economic Development, the

Kenyan Example, J. Douglas Muir and John L. Brown

Information Society and Justice, Vol. 2 No. June 2, 2009: pp 197-204

International Labour Organisation - www.ilo.org

The Central Organization of Trade Unions (COTU-K)- http://www.cotu-kenya.org

KIPP Report - http://www.kippreport.com/fcs/uae-labour-update/