2009 Annual Survey of violations of trade union rights - Kenya
|Publisher||International Trade Union Confederation|
|Publication Date||11 June 2009|
|Cite as||International Trade Union Confederation, 2009 Annual Survey of violations of trade union rights - Kenya, 11 June 2009, available at: http://www.refworld.org/docid/4c52cae2c.html [accessed 24 May 2015]|
ILO Core Conventions Ratified: 29 – 98 – 100 – 105 – 111 – 138 – 182
Despite some major reforms to the labour law, its application in practice has remained very inadequate. It should be noted that Kenya has still not ratified Convention 87. Employers interfered in trade union affairs. The right to strike was flouted.
Trade union rights in law
Freedom of association: 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. The Labour Relations Act (No. 14 of 2007) excludes members of the prison service from its scope, which 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 in the Industrial Court.
Collective bargaining: The Labour Relations Act recognises collective bargaining. A union must be recognised as a bargaining agent if it represents a simple majority of those employees eligible to become union members; 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 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 seven 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, as the reference is to any service the interruption of which would probably endanger the life of a person or the 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 Convention 98.
Delays in 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.
Trade union rights in practice and violations in 2008
Background: Around 1,500 deaths and 350,000 displacements was the catastrophic toll of the post-electoral violence at the start of the year. In April, after some bitter negotiations, the two rival parties agreed to share power. Mwai Kibaki of the Democratic Party (a constituent party of the Party of National Unity) remained the President, whilst Raila Odinga of the Orange Democratic Movement became the new Prime Minister. The government consists of an equal share of members of the two parties.
Employers have tended increasingly to cut their permanent staff and instead use day workers or sub-contractors, thereby reducing workers' chances of representation by trade unions, since the latter are finding it harder to get the number of members needed for obtaining official recognition.
Interference in trade union activities and intimidation: Employers have been depicting unions as incompetent organisations and trying 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. Trade unionists have frequently had problems obtaining meetings with their employers.
Tripartite body prevented from functioning: The government twice dissolved the Executive Board of the National Social Security Fund (NSSF), a tripartite structure in which the Central Organisation of Trade Unions (COTU) is involved. COTU denounced these unilateral decisions in breach of the NSSF Act, deploring the paralysis of a body that is vital to workers.
Obstructing the right to organise: Some unions complained that Labour Ministry 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.
Legal action against striking prison warders: The authorities decided to take nine prison warders to court as suspected ringleaders of a strike in April that affected almost all the country's prisons. It should be noted that prison warders are not allowed to form unions or to go on strike. This illegal strike did, however, lead the authorities to make a few improvements to the disgraceful working conditions of these workers.
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. The country has 39 EPZs, but the number of people working in them, the majority of whom are women, has dropped sharply in recent years, from 50,000 in 2003 to 35,000 in 2008.