Labor Rights in the Constitution
Provided by Government of Kenya - Ministry of Labor
Articles 70 to 86 of the current Constitution deal with fundamental rights. Basically the Constitution guarantees fundamental rights and freedoms of the individual. Among these fundamental rights, a range of general principles underpinning labor rights are anchored in the Constitution itself. The Constitution provides for principles, such as the prohibition of inhuman treatment (Art. 74) and the protection from slavery and forced labor (Art. 73).
Freedom of Association is guaranteed in the Constitution under Art. 80. This constitutional provision under Article 80 (2) (d) already regulates in detail procedures for the registration of trade unions and associations of trade unions. Under this provision reasonable conditions relating to the requirements for entry on a register of trade unions include conditions as to the minimum number of persons necessary to constitute a trade union qualified for registration, or members necessary to constitute an association of trade unions qualified for registration. Moreover, the Constitution already names conditions whereby registration may be refused by the registrar: “on the grounds that another trade union already registered or association of trade unions already registered, as the case may be, is sufficiently representative of the whole of a substantial proportion of the interests in respect of which registration of a trade union or association of trade unions is sought”.
The right to strike is not mentioned explicitly, but Art. 80 (1) protects not only the right to organize, but explicitly activities serving the purpose of the union, such as all activities designed to protect the individuals’ interests.
Related to an employee’s freedom are also the protection of right to personal liberty (Art. 72), his or her freedom of movement (Art. 81), and the protection from discrimination (Art. 82). Art. 82 (3) specifies the anti-discriminatory provision prohibiting different treatment on the enumerative grounds of race, tribe, place of origin or residence or other local connection, political opinions, color, creed or sex.
Labor rights in the draft Constitution
The Draft Constitution contains a Bill of Rights in its Chapter Six. This Bill lays down the principle of equality (Section 35, 37), the freedom from discrimination (Section 36), the freedom from slavery and forced labor (Section 46) and the freedom of association (Section 52). Section 59 on Labor relations determines the rights of workers, employers and trade unions, in particular the right to fair remuneration, the right to reasonable working conditions, the right to join a trade union or employer’s organization, the right to strike and the right to engage in collective bargaining.
The Evolution of Labor Law in Kenya
The genesis of labor law and practice can be traced to the 19th century when need arose for the colonial government to pass legislation to ensure adequate supply of cheap labor to service the emerging enterprises in agriculture, industry and in the service sector. Terms and conditions of employment were regulated by statutes and the common law. The law of contract in Kenya was originally based on the Contract Act, 1872, of India, which applied on contracts made or entered into before 1st of January 1961. The Indian Contract Act applied to the three countries Kenya, Tanzania and Uganda. Since then the Kenyan law of contract has been based on the English common law of contract, under the Kenyan Law of Contract Act (Cap. 23), section 2 (1).
With industrialization, towards the middle of the 20th century, an organized trade union movement was well established.
The first wage earners' associations in Kenya can be traced back to the early 1940s and soon after the Second World War.
The first trade union regulation was made in the introduction of Ordinance No. 35 of 1939 that required all crafts organizations to apply for registration which they could be granted or denied depending on whether they had legitimate dealings consistent with government policy. The Ordinance also permitted any group of seven people to form a trade union and operate as one upon registration. Cancellation of registration under the Ordinance was not subject to appeal or open to question in a court of law (Aluchio 1998, 3).
In 1948, in order to gain complete hold on the wage earners organizations the government brought in a Trade Union Labor Officer, to be attached to the Labor Department with the duty to foster "responsible" unionism (Ananaba 1979, 3). In 1952 a more detailed piece of legislation was enacted for Trade Unions but again with significant omissions. It lacked necessary provisions for effective operation of trade unions. It did not legalize peaceful picketing or provide immunity against damages as a result of strikes. On the other hand, the government encouraged creation of staff associations and works committees since they fitted in its interests to confining workers’ organization to economic imperative alone and also lacked strike powers.
This rigid control of trade unions was maintained by the colonial government until the end. This notwithstanding, the movement was able to grow both in numerical strength and power. At independence the total number of following was about 155,000, 52 trade unions, with four centers formed and registered, namely, East African Trade Union Congress (EATUC), Kenya Federation of Registered Trade Unions (KFRTU), Kenya Federation of Labor (KFL) and Kenya Africa Workers Congress (KAWC).
Industrial confrontation arose not merely from traditional trade union activities, but also from the movement’s political role in the struggle for freedom from colonial domination, particularly after individual political leaders had been arrested and placed in detention.
On the threshold of independence however, both employers and trade unions, felt that it was vital for the infant nation to make economic process that capital and labor should work together in harmony: the incidence of strikes and lockouts had to be drastically reduced.
As a result, in October 1962, a landmark was established with the signing of the Industrial Relations Charter by the government of Kenya, the Federation of Kenya Employers and the Kenya Federation of Labor, the forerunner of COTU (K), the Central Organization Of Trade Unions (Kenya).
The Industrial Relations Charter spelt out the agreed responsibilities of management and unions and their respective obligations in the field of industrial relations, it defined a model recognition agreement as a guide to parties involved, and it set up a joint Dispute Commission.
The Industrial Relations Charter has been revised twice since then, but remained the basis for social dialogue and labor relations in Kenya throughout the years. Currently the “Charter” is under review again; the parties have already produced a draft Charter in 2001 that might be signed in the context of the overall Labor Law review.
With the set up of an Industrial Court in 1964, one additional basic cornerstone was laid for the development of amicable conflict resolution in Kenya.
The Labor Law Reform Agenda
In May 2001 a Taskforce to review the Labor Laws was appointed by the Attorney General (Gazette Notice No. 3204), within an International Labor Organization project. The terms of reference for the Taskforce were:
- To examine and review all the labor laws including the Employment Act (Cap.226); the Regulation of Wages and Conditions of Employment Act (Cap. 229); the Trade Unions Act (Cap. 233), the Trade Disputes Act (Cap. 234), the Workmen’s Compensation Act (Cap. 236), the Factories Act (Cap. 514) and make recommendations for appropriate legislation to replace or amend any of the labor law statutes;
- To make recommendations on proposals for reform or amendment of labor laws to ensure that they are consistent with the Conventions and Recommendations of the International Labor Organization to which Kenya is a party; and
- To make recommendations on such other matters related to or incidental to the foregoing.
Major points of concern were:
- Extension of the application of protective labor regulation into the informal sector;
- Harmonization of the Kenyan labor legislation within the East African Community;
- Merging and redrafting the different Acts in order to produce a user-friendly and comprehensive labor legislation for benefit the people;
- The elimination of remaining colonial heritage in employment relations and contracts;
- The introduction of an Industrial Court of Appeal to overcome contradicting jurisdiction between the High Court and the Industrial Court;
- Review registration procedures and trade union monopoly based on the Trade Unions Act (Cap. 233) in view of the ratification of the ILO Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87);
- Review regulations on casual employees;
- Setting up of an administration system which promotes involvement and democratic participation of the social partners (role of the Labor Advisory Board, possible involvement of civil society concerned in specific fields, etc.);
- Review possible limitations of excessive powers and influence of the Minister for Labor in industrial relations;
- Creation of an efficient labor administration system (inspection pp.) which is capable of effectively enforcing the laws;
- Review the election procedures for trade union officials, and implement a system of directly elected workers’ representatives;
- The establishment of an affordable, not contribution based, workers social insurance scheme, complementing the National Social Security Fund;
- Promote equity and equality in employment by incorporating anti-discriminatory (gender, HIV/AIDS) provisions into the Employment Act (Cap. 226), and as well as provisions against discriminating sexual harassment.
The tripartite Taskforce, comprising of members from the government, the trade unions (COTU) and the employers organization (FKE), officially handed over five new texts to the Attorney General in April 2004. The five drafts, when they reach their final version, will replace the existing legislation on Labor Law. These drafts relate to the following matters:
- Draft on the Labor Relations Act: an act to deal with the registration, regulation, management and democratization of trade unions and employers organizations or federations, to promote sound labor relations through the protection and promotion of freedom of association, the encouragement of effective collective bargaining and promotion of orderly and expeditious dispute settlement, conducive to social justice and economic development and related matters.
- Draft on the Labor Institutions Act: an act for the establishment of Labor Institutions, to provide for their functions, powers and duties. This text introduces a system of labor courts with exclusive jurisdiction on labor matters. The act establishes Subordinate Labor Courts, as well as a National Labor Court. The latter is a superior court having the same authority, inherent powers and standing in relation to matters under its jurisdiction, as the High Court. Appeals on decisions from Subordinate Labor Courts lie in the National Labor Court. Second appeals lie in the Court of Appeal. This text also creates a National Labor Board, whose main duty is to advise the Minister on labor legislation and matters.
- Draft on the Employment Act: an act to declare and define the fundamental rights of employees, to provide basic conditions of employment of employees and to regulate employment of children. This act contains provisions on freedom from discrimination and from sexual harassment. Provisions on freedom from forced labor expressly domesticate ILO Forced Labor Convention, 1930 (No. 29) and the Abolition of Forced Labor Convention, 1957 (No. 105), both ratified by Kenya in 1964.
- Draft on the Occupational Health and Safety Act: an act to provide for the safety, health and welfare of persons employed, and all persons lawfully present at workplaces and related matters.
- Draft on the Work Injury Benefits Act: an act to provide for compensation to employees for injuries suffered and occupational diseases contracted in the course of employment, for insurance of employees and related matters. These texts do now have to follow the path towards adoption, which will hopefully be completed by the end of 2004.
Other sources of labor regulation
Employment relations in Kenya are regulated by a number of sources: constitutional rights, as mentioned above; statutory rights, as set out in statutes and regulations; rights set by collective agreements and extension orders of collective agreements; and individual labor contracts.
These legal sources are interpreted by the Industrial Court, and in some cases by the ordinary courts (see above). A particularly important role to play has the tripartite Industrial Relations Charter that laid the foundation for an industrial relations system already prior to Kenya’s independence in 1963. International standards, especially ILO Conventions ratified by Kenya are used by the government and courts as guidelines, even though they are not binding.
Acts of Parliament in the realm of civil and criminal law, which have provisions that may have impact on individual and collective labor relations include the Contract Act, Local Government Act, Public Service Commission Act, the Children Act, laws concerning the Armed Forces, and legislation dealing with the establishment of parastatals.
The following Acts of Parliament form the labor legislation framework for the country:
- Employment Act (Cap. 226);
- Regulation of Wages and Conditions of Employment Act (Cap. 229), - Industrial Training Act (Cap. 237), - Workmen’s Compensation Act (Cap. 236), - Shop Hours Act (Cap. 231), - Mombasa Shop Hours Act (Cap. 232), - Factories Act (Cap. 514), - Trade Unions Act (Cap. 233),- Trade Disputes Act (Cap. 234);
- Companies Act (Cap. 486);
- Bankruptcy Act (Cap. 53);
- Merchant Shipping Act (Cap. 389);
- Export Processing Zone’s Act (Cap. 547);
- Immigration Act (Cap. 172);
- Pension Act (Cap. 189);
- Retirement Benefits Act (No. 3 of 1997);
- National Social Security Fund Act (Cap. 258);
- National Hospital Insurance Act (Cap. 255);
- Provident Fund Act (Cap. 191);
- Public Health Act (Cap. 242).
In individual labor cases British common law is applicable up to now. The Judiciary Act (Cap. 16) of 1967, section 3(1) states: “The jurisdiction of the High Court and of all subordinate courts shall be exercised in conformity with:
a) The Constitution;
b) Subject thereto, all other written laws; including the Acts of the Parliament of the United Kingdom (…);
c) subject thereto and so far as the same do not extend or apply, the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the12th August 1897, and the procedure and practice observed in courts of justice in England at that date:
Provided that the said common law, doctrines of equity and statutes of general application shall apply so far only as the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary.”
For further information see the website of the Ministry of Labor and Human Resource Development. (www.labour.go.ke)
Copryright 2014 Government of Kenya - Ministry of Labor