2008 Annual Survey of violations of trade union rights - Kenya
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - Kenya, 20 November 2008, available at: http://www.refworld.org/docid/4c52ca86c.html [accessed 31 May 2016]|
ILO Core Conventions Ratified: 29 – 98 – 100 – 105 – 111 – 138 – 182
Kenya has not yet ratified Convention 87 on freedom of association and protection of union rights. Following extensive delays, the new Labour Code should finally be enacted in 2008. Journalists were sacked for belonging to a trade union.
Trade union rights in law
The Constitution of Kenya provides the right of freedom of association to every person in Kenya and specifically recognises the freedom of association to form or belong to trade unions or other associations for the protection of the person's interests. In October 2007 the government adopted a new Labour Relations Act (No. 14 of 2007). The Labour Relations Act excludes members of the prison service from its scope; the denial of the right to organise of prison staff is considered to be a violation of the principles of freedom of association.
The Labour Relations Act sets out requirements for registration of trade unions and if registration is denied then written reasons must be given. The Registrar does not appear to have wide discretionary powers to refuse registration or to cancel or suspend registration of a union. Any application for registration must be signed by at least seven members. Any decision of the Registrar may be appealed to the industrial court.
The Labour Relations Act recognises collective bargaining. A union must be recognised as a bargaining agent if it represents a simple majority of unionisable employees; this provision extends to the public sector employers. Collective agreements must be submitted to the industrial court and become binding upon registration by the court. 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: Civil servants not involved in state administration are 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. The Labour Relations Act provides that the Labour Minister may, after consultations with the National Labour Board, make regulations establishing machinery for determining terms and conditions of employment in the public sector and these shall have the same effect as a registered collective agreement.
Restrictions on the right to strike: The law authorises the right to strike, but the criteria for a protected strike (or lock out) are stringent. The dispute must relate to terms and conditions of employment or union recognition, formal conciliation procedures must have been exhausted and 7 days written notice must have been provided to the other party to the dispute and the minister of labour. The definition of "essential services"' under the LRA is quite broad; referring to any service the interruption of which would probably endanger the life of a personal or health of the population or any part of the population. In addition the Minister may after consultation with the National Labour Board declare any service as an essential service in order to prohibit the right to strike. The general prohibition on sympathy strikes imposed by the LRA is also contrary to ILO C.98.
Delays on finalising labour law review: Despite the enactment of the new LRA there appears to be no further development concerning the promised reform of the Labour Code. A government task force was formed in 2006 to revise the Labour Code to ensure conformity with ILO core labour standards and the African Growth and Opportunity Act (AGOA). The LRA contains no provisions relating to child labour, forced labour or discrimination and as such does not constitute a complete reform process in line with the mandate of the government task force.
In early December the Central Organisation of Trade Unions (COTU) insisted that the new Labour Code be enacted without further delay. The code, long-awaited by the unions, is expected to significantly improve working conditions and be more in line with the ILO core labour standards. Despite having taken part in the revision process, the employers have asked for additional amendments to a number of laws for economic reasons, in particular the one extending maternity leave by one month.
Trade union rights in practice and Violations in 2007
Background: The parliamentary and presidential elections were held on 27 December. The controversial victory, marred by irregularities, of the outgoing President Kibaki sparked off an unprecedented wave of violence.
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. For example, a national strike by employees of the Kenya Power and Lighting Company (KPLC) went ahead despite the fact that it had been declared illegal by an industrial court. During the strike a union activist was briefly detained.
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. 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.
Harassment and dismissal of seven journalists for belonging to a union: In February, seven members of the Kenya Union of Journalists (KUJ) were sacked by Nation Media Group for belonging to the union. A clause in their employment contracts states that journalists in the group are not allowed to join a trade union. The KUJ has reported intimidation and harassment of KUJ leaders and members employed by the media group.