2010 Annual Survey of violations of trade union rights - Kenya
|Publisher||International Trade Union Confederation|
|Publication Date||9 June 2010|
|Cite as||International Trade Union Confederation, 2010 Annual Survey of violations of trade union rights - Kenya, 9 June 2010, available at: http://www.refworld.org/docid/4c4fec71c.html [accessed 24 October 2016]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
ILO Core Conventions Ratified: 29 – 98 – 100 – 105 – 111 – 138 – 182
Teachers faced a series of reprisals for taking part in a pay strike. Six local government union officials were arrested, taken to court and suspended from their jobs for their part in trying to organise a strike. Although recent legal amendments favoured trade union activities, unions still face difficulties especially in collective bargaining.
Trade union rights in law
The Constitution of Kenya specifically recognises the freedom of association to form and belong to trade unions. However, despite the adoption of the Labour Relations Act in 2007, union activity is still hampered by excessive restrictions. For example, several categories of workers are excluded from collective bargaining, including teachers. Furthermore, to be recognised as a bargaining agent a union must represent a simple majority of those employees eligible to become union members. Bargaining in the public sector is flouted by the Labour Minister's right to adopt regulations that have the same effect as registered collective agreements. Finally, the procedures prior to calling a strike can be long. Provided that it does not concern the terms and conditions of employment or the recognition of the union, a strike can be referred to the Industrial Court if mandatory conciliation fails. Sympathy strikes are always prohibited.
Trade union rights in practice and violations in 2009
Background: Following a fact-finding mission in February, the UN Special Rapporteur on extrajudicial executions stated that "Killings by police in Kenya are systematic, widespread, carefully planned and committed with utter impunity." The country also came under criticism during the year for failing to properly investigate the 2008 post-electoral violence that caused 1,500 deaths. In November, Kenya published a draft constitution which would cut the President's powers and put the Prime Minister in charge of routine government business, for debate ahead of a referendum planned for March 2010.
Interference in trade union activities and intimidation: Employers have depicted unions as incompetent organisations and try to convince their employees not to join up, claiming that they will get higher wages that way. Union leaders and members have been threatened with dismissal or actually sacked for participating in trade union activities, as was the case during the January 2009 teachers' strike. Trade unionists have frequently had problems obtaining meetings with their employers.
Obstructing the right to strike: In practice, the right to strike is frequently violated in Kenya. During the notice period, the Minister of Labour generally intervenes and proposes a mediator for the dispute. If the negotiations break down, the government usually refers the matter to an industrial court, pre-empting any decision to take strike action. In cases where workers have become frustrated with the lengthy process and have decided to go ahead with a strike, their action has usually been declared illegal. The January 2009 teachers' strike was ruled illegal by the Nairobi industrial court.
Workers allowed to join unions in EPZs, but with restrictions: Workers in the export processing zones (EPZs) are theoretically allowed to join trade unions, but they still suffer appalling working conditions, and those who complain are threatened with the sack. Labour law does apply in the EPZs; however, there are many exemptions. According to the Tailors and Textile Workers Union (TTWU), most firms based in EPZs have refused to recognise trade unions and obstructed their efforts to organise workers. The Kenya Textile Workers' Federation adds that getting workers to join a union is difficult because the managers at EPZ companies use non-registered organisations to recruit casuals on their behalf.
Refusal to reinstate sacked workers: Razco Food Products Limited, an ice cream manufacturer, sacked 24 workers following a dispute between the company and the Bakery, Confectionery, Food Manufacturing, and Allied Workers Union (BCFMAWU). Justice was done, however, when on 31 July, the Industrial Court ordered the arrest of Razco Limited's Managing Director for failing to obey orders directing him to reinstate the 24 sacked workers pending the determination of a suit between the union and the company. The judge further ordered the firm to pay the workers their salary and other benefits owed to them and not to stop the workers from entering the premises and instead allow them to work, pending the outcome of the dispute.
Strikers face charges in court: Six officials of the Kenya Local Government Workers' Union employed by the Naivasha Municipal Council were arraigned in court on 31 January charged with illegal assembly. The six were arrested at the council's premises on 12 January after an aborted strike over unremitted statutory deductions amounting to Kshs. 9 million and the victimisation of union officials. The six – Jackson Waweru (branch chairman), Daniel Kagori (branch secretary), Benjamin Cheserer (treasurer), David Karimi (shop steward – water and sewerage dept.) Patrick Gakobo (shop steward engineers department) and Hassan Godona – denied the charge and were each released on bond or cash bail pending trial. All six were acquitted by the court on 16 April. However, they were also suspended from work by their employer. On 28 September, the court ruled that they be reinstated back to work, but by the end of the year they had still not been reinstated to date.
Striking teachers arrested: When the Kenya National Union of Teachers (KNUT) called a national teachers' strike in January during a pay dispute, Education Minister Sam Ongeri said the strike was illegal, and warned that teachers who participated in it would be sacked or would have their salaries withheld. He also said that any teacher caught inciting others to take part in the strike would be arrested. It was then reported that 42 teachers and union officials were arrested on the first day of strike. Confrontations between protesting teachers and KNUT officials, on one hand, and police on the other, took place in Mombasa, Kiambu, Gatundu, Meru, Kakamega, Isiolo and Vihiga districts. In some instances, police used tear gas to disperse teachers who had taken to the streets, waving placards as they protested. Tens of teachers were reported to have been injured in the clashes. The strike was later declared illegal by the industrial court but continued for 11 days until it was called off after an agreement was reached over a phased-in pay rise.
Reprisals against striking teachers: In February, only a week after the negotiated resolution of a national teachers' strike, a directive from the Teachers' Service Commission (TSC) ordered 90,000 teachers who serve as school heads, deputies, department heads and senior teachers to leave the Kenya National Union of Teachers' (KNUT) and the Kenya Union of Post Primary Education Teachers (KUPPET). The order was seen as retaliation for the KNUT national teacher' strike. The directive ordered teachers to resign their positions or face disciplinary action if they refused to leave the union. The teachers' unions have appealed against the directive to the Ministry of Education. Further discussions were held with the TSC, and it was resolved that teachers in management positions would be able to join the union but could not take up leadership posts, as it could lead to a conflict of interest. This position was set out in the Revised TSC Code of Conduct and Regulations for teachers in Kenya.
Further reprisals against teachers' strike: In a further reprisal against those who took part in the national teachers' strike in January, the Teachers' Service Commission (TSC) refused in April to deduct and remit union dues to the Kenya National Union of Teachers (KNUT) for the month of January (the month when the teachers went on strike.) The TSC claimed that cash flow problems in the Ministry were the cause of the delay. However, the TSC did remit the January deductions to the Kenya Union of Post Primary Education Teachers (KUPPET), whose members did not go on strike.
Universities breach collective bargaining rules: Two months after signing a collective agreement with Universities Non-Teaching Staff Union (UNTESU) on 25 June, not a single university had paid the 15% salary and 7.5% house allowance increments. On 31 August, the union threatened to go on strike if the universities failed to pay, and also took issue with the universities' management for failing to register the CBA within two weeks as required by law. The strike was called off after the government allocated the resources needed to respect the collective bargaining agreement.