HISTORY OF LABOUR LAW
What are labour laws?
Labour
law can be said to be a body of rules regulating the legal relationships of
“dependent employed persons”. Anybody who is obliged to work for someone else
as a result of an employment contract is dependent or not self-employed. Labour
law not only regulates the relationship between individual employees and
employers but also between the state as the public authority and the employer
where by the individual employee is the object of protection.
A History of the Kenyan Labour
Laws.
The Kenyan Labour laws originally emanated
from England and were imposed by the colonialists to Kenyan natives. The
colonial government of the British already had structures set on base in their
colonies, including Kenya. The secretaries of state and other British
government cabinet ministries relied solely on news of the colonies from the
governor. The governor was in charge of seeking parliamentary consent from the
British government on new laws, as well as being able to implement minor
changes in policy and loan development. Until 1925 the office was responsible
for a number of aspects including labour .However it was around this time that
labour became a matter of interest to the government and prompted the British
government to reform the labour laws then. It was also a time period where
anti-slavery and missionary societies had begun to keep a close watch on the
British colonies. They were followed closely by political activists and trade
union organizations, the International Labour organization and the international
confederation of free trade unions had also started to exert pressure and due
to this, it forced the colonial government to review its standings.
The
white settlers in Kenya were also up at arms with call for smaller tribal
reserves for the Africans forcing them to live on settler farms and provide
labour. Higher taxes were implemented on Africans and they were forced to work
,with identity cards 'kipande' that allowed them to work and pay taxes as well
as keep them in check while the settlers on the farms. This led to legislation
being formed for there to be order but these laws were however advantageous to
the minority white class and very limiting to the Africans.
The
first trade union in Kenya was the Labour trade union of Kenya (LTUK), formed
by Makhan Singh in 1935. The
enactment of the
Trade Union Ordinance in 1937 mandated any organization purporting to
be a trade
union to either
apply for registration or cease
operation. European settlers used the
press, for example
The East African
Standard which was under
European control, to
clamp down on the nascent trade
unions terming trade unionists as irresponsible
agitators. However, pressure from
the British government, led to the creation of the post of Trade union
Officer to guide trade unionism .Thus in
1947, James Patrick became the first trade
union Labour Officer
in Kenya. In
the same year, F.W.
Carpenter, the acting
Labour Commissioner stated that,
Africans would only
be allowed to form
trade unions as
long as they embraced
the tenets, purposes
and organization of trade unions . It was, asserted that he
would not sanction the formation of trade unions by uneducated laborers who
still lacked good qualities of
leadership and organization
such as farm labourers.
In
1944 the International Labour Organization (ILO) issued its first charter in
Philadelphia, and it was held that by the charter 'the improvement in living
standards shall be regarded as the principle objective in the planning of
economic development’. The aim to improve living standards, a system of
industrial relations was envisaged which also featured collective bargaining[1].
By
1945, employment management and welfare work had become integrated under the
broad term ‘personnel management’. Experience of the war had shown that output
and productivity could be influenced by employment policies. The role of the
personnel function in wartime had been largely that of implementing the rules
demanded by large-scale, state-governed production, and thus the image of an
emerging profession was very much a bureaucratic one.
The
Protective Labour Code
In
1946, the Labour department in Nairobi enacted the protective labour code for
Africans. This helped settle down the cruel practices by land owners on
Africans .The government meant to set up a new relationship between the
labourers and their respective employers, the trade unions set up to cater for
even the bares minimal wage worker, though they were taken care of by other legislation[2].
After
1949 the Employment ordinances(employment of native ordinance, resident native
labourers ordinance) was no longer issued out on a racial basis, previously it
was issued to Africans only but now it
was issued to all races in the country.
The
1950 saw the introduction of wages and the beginning of a long process of
economic individualization[3].However
it was a low wage rate. Suddenly a new consumer market came into place. In 1952[4]
violence erupted, the new laws and changed lifestyles put a toll on the people.
The rise of the Mau Mau saw a time of difficulty for the British government;
this in turn led to the African being imposed to new restrictions and harsh
labour conditions. The rise of Tom Mboya was a welcomed call, his knowledge of
the law saw him become the secretary of the Kenya Federation of Labour a trade
union and the leading spokesman of East Africa.
In
1956 the local European politicians and small business firms were dwindling in
power leading the expatriate firms in the country to form their own
organization known as the Federation of Kenya Employers that still
exists until today. The nineteen fifties saw the unionization of trade unions
and the rise of trade unions as a whole carried through post-independence.
Pre and post-Independence period in
Kenya
The
Kenyan workers embarked on long talks with government and 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 labour relations in Kenya throughout the years.
Following
the independence from the British government there was an Industrial Court in
1964; which was an additional basic cornerstone laid for the development of
amicable conflict resolution in Kenya in matters relevant to labour.
Kenya being a brand new state was experiencing a
flourish in its economy. It
was believed that long-term and sustained high rates of economic growth would
facilitate generation of employment opportunities at rates higher than the
proportionate increase in the labour force[5].This
was by 1969, the government issued high wages expected to stabilize the labour
force, lead to rapid growth in labour productivity and enhance industrial
competitiveness and employment creation. It was also a time that saw the
policies of the colonial government being either changed completely to suit the
current Kenyan situation or being adopted into the Kenyan situation. However
the growth of the country did not come without its own share of problems, there
was a high number of unskilled people and very few educated people who actually
went further than high school. The skills needed were lacking and there were
hence a large number of unemployed Kenyans.
The 1970’s saw a time when government sought and
also implemented to address the country’s employment problem included promotion
of growth and development of the informal and jua- kali sector, adoption of
fiscal and short-term measures such as tripartite agreements, among
others. The tripartite agreements were particularly entered into by government,
employers and organized labour (trade unions) in 1970 and 1979. Under the
agreement, employers were to increase their employment levels by at least 10
percent per annum. In return, workers were to observe a wage freeze and strike
free environment during the period[6].
By 1983 the need for rapid economic growth in order
to compete with other world markets became apparent.
This entailed a deliberate effort by
the government to increase employment opportunities for Kenyans through replacement
of non-citizens. Measures used to achieve this included exclusion of foreigners
in rural trade, use of work permits to control employment of expatriates,
redistribution of large agricultural farms and increased investments in human
capital formation[7].
In
the 1990s and early 2000s, government employment interventions targeted
enhancing the acquisition and promotion of efficient use of labour market
information, reliance on market forces to mobilize resources for sustained
growth, provision of public infrastructure, industrial policy, enhancement of
private sector investment and participation in the economy, promotion of
industrial harmony and productivity and liberalization of the labour market[8].
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 the International Labor Organization to which Kenya was a party.
- To make recommendations on such other matters related to or incidental to the foregoing[9].
This
taskforce saw labour as a body being reformed and the laws that were in
existence then repealed. The labour
laws were enacted in 2007 improved the environment for employers, employees and
trade unions. Parliament enacted five labour laws — the Employment Act, Labour
Institutions Act, Labour Relations Act, Occupational Safety and Health Act and
Work Injury Benefits Act. The aim of the laws was to repeal and replace
six core labour laws[10]
and bring them into conformity with the current challenges and demands of
national development and international labour standard.
Sources of Labour law in Kenya
Presently,
the sources of labour law in Kenya include: The Constitution of Kenya;
statutes, judicial precedents (court decisions); the Common law, that is the
law which is not legislation and law as was applicable in England in 1st August
1897; Custom; International labour standards (ILO Conventions and treaties);
and, legal writing- views of legal authors which are not binding but persuasive
to courts.
The 2010 Kenyan Constitution
The
2010 Kenyan Constitution, deals with fundamental human rights[11];
guaranteeing the rights and freedoms of an individual. Within these rights and
freedoms, there are the general principles that anchor and reflect
internationally accepted and practiced labour rights. All this is contained in Chapter four of the
Constitution under The Bill of Rights[12].
The
Bill of rights applies to all law and binds all state organs and all
persons. A person is defined by the Constitution
to include a company, association, or
other body of persons whether incorporated or unincorporated. Thus, there can be an enforcement of the
rights against private persons such as an employer suing employee for unfair
labour practices and vice versa.
Other
rights are as follows: Equality and freedom from discrimination, Human
dignity,Slavery, servitude and forced labour , Freedom of conscience, religion,
belief and opinion, Freedom of expression, Access to information, the Freedom
of Association and Assembly,
demonstration, picketing and petition . However, the most definite of these
rights in relation to labour is Article 41[13].
[1] Amsden H.Alice (1971). International firms and Labour in Kenya; Psychology press, Google
Books.
[2] ibid
[3] Anthony clayton, Donald
C.savage,1974,Govermant and Labour in Kenya,1895-1963,Psychology Press,Google
books
[4] State of emergency
[5] Jacob Omollo (2010). Dynamics and Trend of Employment
in Kenya, I EA RESEARCH PAPER, SESSIONALN0.1/2010, Institute of economic
Affairs, Kenya.
[6] See note 10 above
[7] ibid
[8] ibid
[9] SME Tool Kit Kenya,2012,Important Information
Regarding Labour Law in Kenya,adapted from the website http://kenya.smetoolkit.org/kenya/en/content/en/6159/Important-information-regarding-labor-law-in-Kenya. Retrieved on 29 January at 3:00 pm
[10] These are the following :
a)The
Employment Act,
b)The
Regulations of Wages and Conditions of Employment Act,
c)The Trade Disputes Act
d)The Trade Union Act
e)The Workman’s Compensation Act, and
f)The Factories and Other Places of Work
Act.
[11] Article 19 (2) “…preserve the dignity of
individuals and communities and to promote social justice and the realization
of the potential of all human beings.”
[12] Article 19 The Constitution of Kenya, 2010; on
purpose of the Bill of rights is to recognize and protect human rights,
fundamental freedoms, dignity of individuals and communities; and, to promote
social justice and realization of the potential of all human beings.
[13] Article 41 (1): “Every person has the right to
fair labour practices.”
“
(2): Every worker has the right to fair remuneration, reasonable working
conditions, to form, join or participate in the activities and programmes of a
trade union and to go on strike.
“ (3) – Every employer has the right
to form and join an employer’s organization; and to participate in the
activities and programs of an employer’s organization.
“ (4):“Every trade union and employers’
organization has the right –a) To determine its own administration, programmes
and activities; b) To organize; and c)To form and join a federation.”
“ (5) – Every trade union, employers’
organization and employer has the right to engage in collective bargaining.
