2007 Annual Survey of violations of trade union rights - Kenya
|Publisher||International Trade Union Confederation|
|Publication Date||9 June 2007|
|Cite as||International Trade Union Confederation, 2007 Annual Survey of violations of trade union rights - Kenya, 9 June 2007, available at: http://www.refworld.org/docid/4c52ca26c.html [accessed 1 August 2015]|
ILO Core Conventions Ratified: 29 – 98 – 100 – 105 – 111 – 138 – 182
There was considerable union discontent throughout the year, including a bitter strike in the autumn by university professors, whose leaders were arrested after the court declared the strike illegal. Striking flower plantation workers were attacked, tea workers were sacked, and members of the truck drivers' union were arrested for blockading border posts. Unions reported that workers are being prevented from unionising or going on legal strikes.
Trade union rights in law
Government can deny registration: Workers can form a union in an enterprise provided there are seven or more workers, but all unions must be registered by the Trade Union Registrar who has the right to deny registration. If registration is denied, the aggrieved unions have the right to seek redress in the courts.
Both the Trade Disputes Act and the Industrial Relations Charter authorise collective bargaining.
All labour laws, including the right to organise and bargain collectively, apply in the export processing zones (EPZs).
Bargaining rights still denied to teachers and others in non-essential services: According to regulations introduced in 2004, civil servants not involved in state administration are now allowed to bargain collectively and to go on strike, but this right is still denied to workers in the military, prisons, the National Youth Service and teachers under the Teachers' Service Commission.
Restrictions on the right to strike: The law authorises the right to strike, but this right is subject to major restrictions. All disputes must be submitted to the Ministry of Labour, which may act as arbitrator, appoint a mediator, or submit the dispute to the industrial court. No strikes are permitted during the mandatory cooling-off period (21 days or 28 days for services such as education, health, and air traffic control or water utilities). The Ministry of Labour also has the discretionary right to decide whether a strike is legal.
Delays on finalising labour law review: A government task force is revising the Labour Code to ensure that it incorporates ILO core labour standards and is consistent with the African Growth and Opportunity Act (AGOA). There is growing union frustration over the slow pace of finalising the laws, as the government claimed that they cannot be finalised until the Constitution is ratified. However, in August, the Labour Minister himself described the laws as "archaic" and promised that new laws would be in place by the end of the year, although by year end, there had been no change.
Trade union rights in practice
Obstructing the right to unionise: Some unions complained that government labour officials hindered efforts to establish unions in factories where at least 80 percent of workers wanted union membership and representation. The unions alleged that the officials refused to approve applications by continually finding fault with minor technicalities in the applications.
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.
New contracts for teachers remove senior teachers' union rights: The Teachers' Service Commission (TSC) regulations, introduced in 2005, prohibit senior teaching staff from playing an active part in the union or participating in strikes. Teachers who fail to comply are disciplined.
Workers allowed to join unions in EPZs, but with restrictions: Workers in the export processing zones (EPZs) are allowed to join trade unions, but they still suffer appalling working conditions, and those who complain are threatened with the sack.
Violations in 2006
Background: The year began with severe drought in the north, and ended with flooding in the north east. Government mismanagement and corruption continued to be of concern to both the Kenyan people and donors.
Striking truck drivers' leaders arrested for obstruction and incitement: Two hundred truck drivers, all members of the Kenya Long Distance Truckers Welfare Association (KLDTWA) were arrested after they blocked the Malaba and Busia border points between Uganda and Kenya on 28 January. KLDTWA Chair Dickson Mbugua and two colleagues were arrested and imprisoned until they were officially charged with incitement on 8 February and released on bail. The rest of those arrested were charged with obstruction.
The blockade started when the drivers protested about the death of Joshua N'gang'a, a truck driver, in a road accident with a military truck. The strikers were demanding compensation for the murdered driver, union recognition and the immediate addressing of grievances about security.
Striking flower workers attacked with tear gas: Police fired tear gas and fought running battles with the thousands of flower workers at the Oserian farm near Naivasha on 30 January who were demonstrating in protest at mass dismissals. Several demonstrators were injured. The company had fired more than 1,000 of its 4,500 employees, claiming that they had failed to give the obligatory 21 days' notice before taking strike action. The strike was over workplace injuries and discrimination in allocating places in an education programme.
Striking tea workers fired: James Finlay Company fired 28 workers for striking over poor working conditions on 30 May. Both the Kenya Plantation Union and the Minister of Labour supported the workers, and asked for them to be reinstated.
Collective agreement ignored at Athi River EPZ: Over 1,000 workers from the Rising Sun Company in the Athi River EPZ were laid off, and their termination benefits were not paid. The company then rehired some of the workers on a casual basis, ignoring the existence of a collective agreement.
University lecturers sacked and union leaders arrested: Key union officials from the Universities Academic Staff Union (UASU): National Chairman Dr. Sammy Kubasu, General Secretary Muga K'Olate, Kenyatta University UASU Chairman Joseph Kinyanjui and Secretary Richard Wafula, were among 50 lecturers who were either sacked or suspended at the end of October during a strike at the country's public universities. The strike began on 23 October after negotiations over salaries broke down. The court immediately declared it illegal, and arrested the union leaders and other strikers. The government also withheld the October salaries of the strikers.