2012 Annual Survey of Violations of Trade Union Rights - Kenya

Population: 40,513,000
Capital: Nairobi

ILO Core Conventions Ratified:

29 (Forced Labour (1930))
98 (Right to Organise and Collective Bargaining (1949))
100 (Equal Remuneration for Work of Equal Value (1951))
105 (Abolition of Forced Labour (1957))
111 (Discrimination in Employment and Occupation (1958))
138 (Minimum Age for Employment (1973))
182 (Worst Forms of Child Labour Convention (1999))

Reported Violations – 2012

Arrests: 2
Dismissals: 819

Documented violations – actual number of cases may be higher

Introduction

Mass dismissals were the tactic of choice by employers punishing their workers for taking strike action or simply joining a union. Workers dismissed for joining a union included over 100 truck drivers, 50 textile workers and 19 oil workers. Nearly 600 postal workers received dismissal notices for taking part in a strike, as did 50 flower workers. Two officials from the electrical workers' union KETAWU were arrested during a strike in March.

Background

Six high-ranking officials, including a deputy prime minister, two ministers and a police chief, appeared before the International Criminal Court in The Hague in April, accused of possible crimes against humanity in relation to the 2007-8 post-election violence. There was anger among workers in May when the government announced a 12.5% increase in the minimum wage, far short of union demands for a 60% increase in face of sharp rises in the cost of living. In November the country witnessed a wave of strike actions by workers in key sectors, namely the Kenya Power and Lighting Company, Kenya Civil Aviation Authority, Kenyatta National Hospital Staff and University teaching and non-teaching staff. By the end of the year inflation was running at 19.72%.

Trade union rights in law

While the new Constitution, which took effect on 27 August 2010, recognises fundamental trade union rights, union activity is hampered by excessive legal restrictions. The procedures for forming a trade union are long and cumbersome, and the law requires that a certificate is obtained before members can be recruited to form a union. Furthermore, the Registrar of Trade Unions may refuse to register a union if another trade union already exists which is sufficiently representative. The law imposes strict conditions and limitations on the use and management of unions' funds, and the Registrar has extensive powers to audit these funds. The Labour Relations Act excludes members of the prison service and the National Youth Service from its scope.

The new Constitution also guarantees the right to bargain collectively, but it is not clear whether this right can be enjoyed by all employees in the public sector. With regard to the right to strike, a long dispute resolution procedure must be exhausted before a lawful strike can be called. A strike must also concern the terms and conditions of employment or the recognition of a trade union, and sympathy strikes are prohibited.

Link to additional detailed information regarding the legislation on the ITUC website here

In practice

Employers challenge labour rights in court: On 5 January the Federation of Kenya Employers (FKE) went to court to declare key labour laws, namely the Employment, Labour Relations, Labour Institutions, Work Injuries Benefits and the Occupational Health and Safety Acts of 2007, unconstitutional. The Central Organisation of Trade Unions (COTU) protested that the FKE had been represented on the taskforce that worked on the revision of the laws, and could not understand why it had then chosen to disown part of them. The COTU also expressed concern that the move could affect hundreds workers, particularly those still waiting for compensation for workplace injuries.

Industrial Court ineffective: The Central Organisation of Trade Unions – COTU – has criticised the Industrial Court for dragging its feet in resolving disputes between employers and workers. Rather than intervening during the seven days' strike notice given by unions, the court tended to wait until the notice period ended then declare the strike illegal, allowing employers to order employees back to work. COTU appealed to the courts' judges to compel both parties to come together to seek a solution to their dispute within the seven days of the notice issued by either party.

Workers promoted to management to keep unions at bay: Senior managers of Kenyan banks have admitted that the banks promoted employees to management positions to deny them representation by unions for non-managerial staff.

Violations

Strike leaders arrested: Two officials of the Kenya Electrical Trades and Allied Workers Union (KETAWU) were arrested on 14 March in Kisumu. Trouble started when officials engaged in a heated argument with the Kisumu police boss John Mwinzi outside the offices of the Kenya Power and Lighting Company workers (KPLC) on the legitimacy of the strike. Union members were angered that the police had chosen to interfere in their peaceful protest. A further 360 were threatened with dismissal for taking part in the strike, over a list of grievances including the failure to honour the collective agreement and grant pay rises in January. KETAWU was also concerned that more than a third of workers are hired on a casual basis, in violation of the country's labour law. The strike was later called off after talks with the company's management mediated by government officials. A pay deal was finally reached at the beginning of November.

Drivers dismissed for joining union: Over 100 drivers were dismissed after joining the ITF-affiliated Kenya Long Distance Truck Drivers' Union. An ITF team that visited Kenya in May during an organising initiative met with the Ministry of Labour's acting provincial commissioner Charles Mwinami, who said the ministry was already handling some of the cases that had been reported by the truck drivers' union. The workers were angry that the ministry was drawing out the process, leaving employers free to continue to dismiss workers. Mwinami promised to investigate and raise the issue with the government; he would also highlight the consequences of truck drivers taking their own action to fight for freedom of association, which he believed was under threat in the Kenyan trucking industry. The dismissed workers had still not been reinstated by the end of the year.

Ferry company refuses to recognise union: Kenya Ferry Services (KFS) consistently refused to acknowledge their workers' membership of the Dockworkers Union, despite agreeing to deduct their monthly contributions. On 12 November, after four months during which the management refused to respond, the union decided to call a strike to press for recognition and revive talks on a long overdue collective bargaining agreement with KFS. The union said the strike would go ahead if a solution had not been found in 21 days. The strike notice was called off after the KFS and the union signed a collective agreement.

Sacked for striking: More than 50 workers were sacked from a farm producing flowers for export owned by former President Moi in Eldoret for taking strike action. Over 700 workers took part in the strike which was in protest at harassment by two of the farm managers and arbitrary sacking of colleagues. The workers were also concerned that management appeared to hire and fire on the basis of tribal loyalties. The Kenya Plantation and Agricultural Workers Union wrote to former President Moi in August asking him to reinstate the dismissed workers, pointing out that managers had failed to listen to workers' grievances, and that sacking and dismissing them for legitimate union action was illegal.

Union members sacked by textile company: More than 50 workers were sacked by the Rivatex textile company, owned by Moi University. The workers reported that management used a union meeting they attended as a pretext to sack them. Management claimed they had to dismiss the workers as part of a restructuring exercise that required staff cuts. However the company continued to hire new workers. In September the sacked workers wrote to the University's vice-chancellor urging him to intervene to get them reinstated.

19 oil workers sacked for joining union: On 1 November workers at a bulk liquid storage company in Mombasa went on strike after learning that 19 of their colleagues had been sacked. The Mombasa branch secretary of the Kenya Union of Commercial, Food and Allied Workers (KUCFAW), Samuel Baya, said that the 19 were sacked because they had joined the union. Baya accused the company's management of going against the recognition agreement the union had with the company.

Postal corporation sacks 600 striking workers: Postal workers went on strike on 16 December demanding a 30% pay rise and better working conditions. The state-owned Postal Corporation of Kenya (PCK) responded by issuing letters of summary dismissal to the 600 employees who took part in the industrial action, claiming it was illegal. The Communication Workers Union (COWU) pointed out that the PCK, which had offered just 5%, had refused to continue negotiations with the workers. The strikers were given four weeks to appeal their dismissal, while the PCK advertised to recruit 550 new employees to replace them. On 27 December a judge upheld the workers' right to strike, and the court ruled that all the workers should be reinstated unconditionally. The COWU called of the strike, but the 594 workers concerned found they had not been paid their December salaries and that they were barred access to their work stations. The matter was finally resolved and the strikers were able to return to work on 2 January 2012.