Unless some of our top political leaders have a secret agenda, the hope for a long lasting peace in Kenya lies in the two Bills published by the Minister for Justice, National Cohesion and Constitutional Affairs, Martha Karua. According to the Memorandum of Objects and Reasons the first one – The National Ethnic and Race Relations Commission Bill, 2008 – seeks to establish a National Ethnic and Race Relations Commission that will be charged with the responsibility of facilitating and promoting equality of opportunity, good relations, harmonious and peaceful co-existence between the various Kenyan ethnic communities.
Such a Bill could only be opposed by those who have reaped political benefit from bad relations between communities. There are quite a number of MPs who would never have been elected to Parliament without sowing seeds of ethnic discord in their constituencies. They promised their voters to inherit the well stocked shops and fertile farms belonging to “foreigners” living in the Rift Valley. Yet the majority of the so called “foreigners” were actually Kenyans of different ethnic groups and the shops they had were established through sheer hard work. The majority of the fertile farms they owned were actually bought from the local communities decades ago.
Martha Karua’s memorandum says the Bill is borne of the realization that the lasting peace and co-existence cannot prevail in Kenya unless the various Kenyan communities cultivate goodwill among each other and have equal access to various opportunities that may arise without discrimination grounded in ethnicity. The memorandum further says the Bill recognizes the need to deal effectively with the negative aspects of tribalism and ethnicity which has pervaded various levels of Kenyan society. Very noble words indeed! But the question is how the country can be expected to “deal effectively” with the negative aspects of tribalism when that aspect happens to be the side of some powerful MPs’ bread that is buttered.
The first signs of resistance against dealing effectively with negative ethnicity were shown by some MPs who openly resisted the resettlement of IDPs in their former farms and homes. They were coming up with some ridiculous conditions such as a blanket amnesty for suspected murderers and arsonists. No one says there should be no amnesty for some innocent participants in the mayhem that befell our country soon after the messed-up elections of last year. But that amnesty should not be extended to some people who committed the most heinous crimes this country has ever witnessed.
Recent utterances of some politicians reveal that they know something about who masterminded the crimes; otherwise they would not be calling for the release of “heroes who fought for democracy”. A terribly dangerous example will be set by releasing people who committed mass murders and burnt other people’s property at random .If and when they get away with this, we will all be living at the mercy of hooliganism and organized gangsters .
The demand by some politicians to have the perpetrators of post election crimes set free clearly also indicates that the militias are actually on hire by very important people. These VIPs owe their top jobs to hooligans who terrorized voters during election times. If any MP opposes this particular Bill which Martha Karua says emanates from the deliberations of the National Dialogue and Reconciliation Committee, that MP cannot be taken seriously when he or she condemns tribalism in our society. Indeed Martha Karua reminds us that the dialogue was formed after a political crisis ensued following a dispute on the outcome of the Presidential elections held on 27th December last year.
Martha Karua happens to be one of Kenyan politicians who take a very firm stand in whatever they believe in. The politicians are normally called “hardliners” and they are there in both the PNU and ODM camps. Whatever she says, therefore, is scrutinized thoroughly to find out whether it is meant to promote her political beliefs. This Bill could and indeed should be subjected to such a scrutiny.
Whatever conclusion people make about what Martha Karua says, she is absolutely right when she reminds us that last year’s political crisis brought to the surface deep-seated and log standing divisions within the Kenyan society and that to heal those divisions, a raft of constitutional, legal and political measures have to be taken. The publication of the two Bills is the first step by the Minister towards bridging the separations in our society.
The second Bill – The Truth, Justice and Reconciliation Commission Bill, 2008 – is a bit more controversial. It is difficult to establish justice without the truth being known. From time immemorial Governments all over the world have been economical with the truth and the Kenyan Government is not the exception. From April last year, for example, a Freedom of Information Bill was published but very lackadaisical efforts have been taken by the authorities to change it into anAct.
So instead of people’s right to know being promoted by the Government, it enforces the notorious CAP 187 Official Secrets Act. This horrible Legislation is an act of Parliament intended to provide for the preservation of State Secrets and State Security. It sounds very colonial indeed but surprisingly it is not. The Act, in fact, came into effect on the 16th February, 1968. This was long after Kenya attained its independence which says a lot about our African Governments.
For a TJRC to be effective an enabling environment must be created in which the truth can be told without any fear or favour. But for that to be done properly, that truth must be available in the first place. According to Clause 5 (a) of the Bill there are intentions of establishing accurate , complete and historical records of violations and abuses of human rights and economic rights inflicted on persons by the State, public institutions and holders of public office, both serving and retired , between 12th December , 1963 and 26th February 2008.
That sounds very noble indeed but the Bill has some clauses and sections that appear to be creating hindrances for the Commissions that will be established ,to get access to some information. The Commissions will , for example , according to Section 26 (1), not have any powers to search any premises suspected to contain any record or property or thing relevant to investigation without and ex-parte application to the Court for a warrant to conduct such a search. Now we all know what can happen to any proceedings in our courts.
May be the most controversial part of the second Bill is to be found in Section 38 (1) allowing the Commission to make amnesty recommendations for any violations committed during the period 12th December , 1963 to February 28, 2008. In the Bill’s Memorandum of Objects and Reasons, Martha Karua rightly says that the intended law is borne of the realization that lasting peace and co-existence cannot prevail in Kenya unless historical injustices and violation and abuse of human rights have been addressed. How is that possible when the team to perform the task of seeking justice is made to jump so many huddles? How is that possible also when amnesty will be so easy to obtain?
It is the hope of many Kenyans that a lot of skeletons in our cupboards will be exposed by the TJRC which will make its hearings, according to the Bills’ Section 25 (1) , in public. Unfortunately this section is immediately contradicted by subsection (2) which creates provisions for some proceedings to be heard in camera. Which means some secrets about a few individuals who have been looting this country since independence will always be secrets. What a shame!
The only consolation is the fact that the two Bills are not being rushed through Parliament and there will be plenty of time to discuss them and amend them accordingly at the appropriate time.
Tuesday, May 20, 2008
Wednesday, May 14, 2008
MPs Building Castles in the Air
Kenyan Parliamentarians’ propensity to build castles in the air is universally unconquerable. It is simply next to none in the whole world. They never seem to run short of ideas that shock. First they pass the absurd motion against the parties that sponsored them to Parliament by rebelliously trying to form a fictitious Grand Opposition. It is fictitious because it is threatening the very existence of the Coalition Government which has brought back peace to this country.
Then now they think they should have the powers to create ministries for the Government. As lawmakers they should know what the Constitution says about the issue. Section 16(2) of the Constitution says the President shall appoint the Ministers from among the members of the National Assembly. It does not say ministers shall be appointed by Parliament.
But Section 16(1) of the Constitution, however, says there shall be such offices of Minister of the Government of Kenya as may be established by Parliament or, subject to any provision made by Parliament, by the President. Does this mean ministries shall be created by Parliament? If so, why has it not happened before? Were ministries created unilaterally by the President against the Constitution? Why bring up the matter at this moment in time?
That notwithstanding Section 24 of the Constitution says the powers of constituting and abolishing offices for the Republic of Kenya, of making appointments to any such office and terminating any such appointment, shall vest in the President.
The powers to appoint Ministers and create ministries do not rest on the President alone. According to the National Accord and Reconciliation Act, 2008, the Prime Minister has similar powers in the formation of the coalition Government. These powers are to be found in Section 4 (1,2and3) of the Act.
What must have happened when the current Government was formed and various ministries created by Mwai Kibaki and Raila Odinga, is that a lot of MPs expected to be in the new Cabinet. When many of them missed the boat they decided to show their powers as elected representatives of the people. Hence the call for a Grand Opposition and the suggestion that from now on they should be involved in the creation of ministries. Is there something that the MPs know that the rest of us don’t? Is there an internal split within ODM and PNU? Why this belated animosity against people who were hero-worshipped only three months ago?
Sure enough, looking at the ministries created by Kibaki and Raila is not a particularly pleasant exercise. Apart from its extraordinary monstrous size, and extremely expensive budget, some ministries look like mere departments of any serious Government. Jobs were definitely created for the boys. But that was to bring back peace after a lot of blood of innocent Kenyans was poured and thousands of our people – men, women, children and the aged – were made both homeless and dispossessed.
No price was too high to pay to re-establish peace after the whole country was almost torn to pieces by what resembled xenophobic nationalism. As a matter of fact, the problem has not completely been solved because there are still thousands of IDP yet to accept to return to their former homes, where the reception by the so called indigenous people still threatens to be hostile. I do not like calling those who are refusing to live with other Kenyans “indigenous” because every Kenyan, is, by birth, indigenous. There is no one who can claim to be more Kenyan than another Kenyan.
Instead of pocketing a lot of taxpayers’ money for debating hogwash subjects such as the formation of a Grand Opposition or who should be creating the Ministries, parliamentarians will appear to earn their salaries more legitimately by trying to solve the problem of IDP. The present trends in this Parliament exhibit the same calibre of greed as that of the one the voters have just fired. The fired group of MPs used the Legislature as a mint to make money. This one seems to be heading towards the same direction but in a rather circumlocutory manner, that shows some form of rebellion, for being left out of the Cabinet.
If the MPs want us to take them seriously they should immediately start sorting out the problem of some Kenyans thinking they are more important than other Kenyans. Traditionally we have always thought this was a characteristic of rich people who did not want to mix with the poor. But today things look different. The evil head of negative ethnicity is beginning to show its ugly face and may be some of the people responsible for the dirty work are sitting in Parliament today.
Suggestions have been made that real peace will come back to Kenya only when communities can communication between and among themselves. Dialogue between people who were fighting soon after last year’s elections must be started by all the people of goodwill. Among them should be members of Parliament who are too busy postponing peace talks instead of initiating them. Why? Because Raila and Kibaki forgot them when they were selecting Cabinet Ministers. So they must now disown both Raila and Kibaki. How shocking!
Some of them are suggesting that the hooligans who caused mayhem in December last year through murder and arson should be forgiven. That forgiveness will be the biggest mockery of justice. Martha Karua is right when she says everyone who was involved in the post election crimes must be brought to justice. That should be done as soon as possible because justice delayed is justice denied. She must also make sure that criminals from both sides are traced by the long arm of the law.
Justice must not only be done following the sad events of last year's elections, but it must manifestly be seen to be done. None of the criminals, for example, should be punished without revealing who paid them to commit the crimes. The paymasters of the criminals must also be made to face the music. Otherwise we can never be sure that these crimes will not be committed again and again.
Then now they think they should have the powers to create ministries for the Government. As lawmakers they should know what the Constitution says about the issue. Section 16(2) of the Constitution says the President shall appoint the Ministers from among the members of the National Assembly. It does not say ministers shall be appointed by Parliament.
But Section 16(1) of the Constitution, however, says there shall be such offices of Minister of the Government of Kenya as may be established by Parliament or, subject to any provision made by Parliament, by the President. Does this mean ministries shall be created by Parliament? If so, why has it not happened before? Were ministries created unilaterally by the President against the Constitution? Why bring up the matter at this moment in time?
That notwithstanding Section 24 of the Constitution says the powers of constituting and abolishing offices for the Republic of Kenya, of making appointments to any such office and terminating any such appointment, shall vest in the President.
The powers to appoint Ministers and create ministries do not rest on the President alone. According to the National Accord and Reconciliation Act, 2008, the Prime Minister has similar powers in the formation of the coalition Government. These powers are to be found in Section 4 (1,2and3) of the Act.
What must have happened when the current Government was formed and various ministries created by Mwai Kibaki and Raila Odinga, is that a lot of MPs expected to be in the new Cabinet. When many of them missed the boat they decided to show their powers as elected representatives of the people. Hence the call for a Grand Opposition and the suggestion that from now on they should be involved in the creation of ministries. Is there something that the MPs know that the rest of us don’t? Is there an internal split within ODM and PNU? Why this belated animosity against people who were hero-worshipped only three months ago?
Sure enough, looking at the ministries created by Kibaki and Raila is not a particularly pleasant exercise. Apart from its extraordinary monstrous size, and extremely expensive budget, some ministries look like mere departments of any serious Government. Jobs were definitely created for the boys. But that was to bring back peace after a lot of blood of innocent Kenyans was poured and thousands of our people – men, women, children and the aged – were made both homeless and dispossessed.
No price was too high to pay to re-establish peace after the whole country was almost torn to pieces by what resembled xenophobic nationalism. As a matter of fact, the problem has not completely been solved because there are still thousands of IDP yet to accept to return to their former homes, where the reception by the so called indigenous people still threatens to be hostile. I do not like calling those who are refusing to live with other Kenyans “indigenous” because every Kenyan, is, by birth, indigenous. There is no one who can claim to be more Kenyan than another Kenyan.
Instead of pocketing a lot of taxpayers’ money for debating hogwash subjects such as the formation of a Grand Opposition or who should be creating the Ministries, parliamentarians will appear to earn their salaries more legitimately by trying to solve the problem of IDP. The present trends in this Parliament exhibit the same calibre of greed as that of the one the voters have just fired. The fired group of MPs used the Legislature as a mint to make money. This one seems to be heading towards the same direction but in a rather circumlocutory manner, that shows some form of rebellion, for being left out of the Cabinet.
If the MPs want us to take them seriously they should immediately start sorting out the problem of some Kenyans thinking they are more important than other Kenyans. Traditionally we have always thought this was a characteristic of rich people who did not want to mix with the poor. But today things look different. The evil head of negative ethnicity is beginning to show its ugly face and may be some of the people responsible for the dirty work are sitting in Parliament today.
Suggestions have been made that real peace will come back to Kenya only when communities can communication between and among themselves. Dialogue between people who were fighting soon after last year’s elections must be started by all the people of goodwill. Among them should be members of Parliament who are too busy postponing peace talks instead of initiating them. Why? Because Raila and Kibaki forgot them when they were selecting Cabinet Ministers. So they must now disown both Raila and Kibaki. How shocking!
Some of them are suggesting that the hooligans who caused mayhem in December last year through murder and arson should be forgiven. That forgiveness will be the biggest mockery of justice. Martha Karua is right when she says everyone who was involved in the post election crimes must be brought to justice. That should be done as soon as possible because justice delayed is justice denied. She must also make sure that criminals from both sides are traced by the long arm of the law.
Justice must not only be done following the sad events of last year's elections, but it must manifestly be seen to be done. None of the criminals, for example, should be punished without revealing who paid them to commit the crimes. The paymasters of the criminals must also be made to face the music. Otherwise we can never be sure that these crimes will not be committed again and again.
Monday, May 12, 2008
Raila Outwitted Mt. Kenya Mafia
Politically Raila is equal to Mwai Kibaki. Constitutionally Kibaki is head and shoulders above Agwambo, but only as a figurehead. Governmentally they paddle in the same canoe. This is the position Kenya is in today because of Raila’s ability to outwit the Mount Kenya Mafia, which has been constantly stabbing him in the back every time he comes to some agreement with Mwai Kibaki. Raila has learnt how to deal with the Gema sharks after a bitter lesson that threw him out of governmental powers in 2005 though he still remained politically very powerful.
This is not the first time Kibaki and Raila have established a political agreement. When they made the first attempt before the 2002 general elections, they signed the now infamous MoU which created the post of an Executive Prime Minister for Raila. The many political parties that formed Narc to oust Kanu from power were to be guided by the Summit made up of Moody Awori as its chairman and George Saitoti, Raila Odinga, Kalonzo Musyoka, Kipruto arap Kirwa, Charity Ngilu, Mwai Kibaki and Michael Wamalwa as its members.
If the Summit was not dissolved by the Mt. Kenya Mafia soon after Mwai Kibaki was first sworn in as the third President of Kenya, the chances would have been the current strong coalition Government would have been established as long ago as 2003. The Narc Government would have grown into the kind of a Grand Coalition we have today. But the Gema leaders around Mwai Kibaki would hear nothing about the Summit. They also did not want the Constitution changed to create the post of a prime Minister despite the existence of the MoU.
Political animosity between Raila Odinga and the Gema group around Mwai Kibaki started at that time when a handful of extremely rich people from Central Province claimed that the Summit could not be above the Cabinet. At hat time John Michuki, who was the Minister for Transport and Communication, said the Summit should be dissolved because its continued existence undermined the Presidency. His son in law, who was the Mukurwini MP, Mutahi Kagwe, said there was no need for constitutional changes because Mwai Kibaki should be allowed to continue ruling Kenya for five years under the old constitution which made a demigod out of the President.
In an article published by The Standard on April 5th, 2003, I condemned the statements by the two and said: The statements by these two leaders are in poor taste and contribute to a public disservice which threatens the unprecedented co-operation and unity among Kenyan leaders that made Narc win the elections.
The perilously arrogant statements from the Central Province MPs resembled the conceited Kanu braggadocio which led to its downfall. The people could then see that the statements by Gema leaders were an uncomfortable blend of power hunger and disregard for wananchi’s feelings which were not a particularly appealing combination. Wananchi, who backed Narc to remove Kanu from power, could at that time see that things were not shaping up as they expected. There were practical and moral problems embedded in the Narc crisis. What seemed to bother most Kenyans at that time were the new jingoistic Mount Kenya Mafia’s ways of interpreting events even when their methods went against the moral and honest spirit of co-operation between political leaders from all corners of the country.
Naturally, there were serious practical hurdles to jump before the clique’s ambition could be fulfilled. If they needed to remain in power they had to be supported by the majority of Members of Parliament who at that time did not seem to be delighted by the trend to have Gema people dominate in almost all important Government positions. Indeed the entire political scenario put the power clique around Kibaki out of balance as it was typified by parliamentary rebellion which forced the government to withdraw some vital Bills from the order paper.
To many people the vitriol spewed by Michuki and Kagwe showed they harboured political ambition which was occasionally unleashed by recklessness in their speech. Wananchi were eager to see which of the Narc leaders would have the decency, integrity and honour to uphold the unity among the people and which ones among them would exhibit a diminutive mentality that would disregard human decency that required them to honour promises made to the masses of Kenya.
The squabbles in Narc proved that the Government was not functioning the way the coalition expected it to and many Kenyans were surprised when there was not even a time line on how the new party was to be reorganized. The failure of the Summit to meet and sort out Narc problems had influenced opinion right across the country in such a manner as to threaten to erode the goodwill they had so far succeeded to establish. To many Kenyans the objective of a few people around Kibaki was not only to accumulate power but to hijack Narc - a political task they could hardly achieve without the co-operation of the Summit.
It was obvious that the Narc coalition was so much concerned about winning the 2002 election that it paid little attention to post-election settlements. Little did anyone suspect that the Mount Kenya group would run the show after victory. But if that regime was to survive the crisis it was going through then it had, as much as possible, to involve all the original leaders of Narc. Wananchi wanted to see a hybrid administration running the country when the people were engaged in the process of reshaping the constitution along the lines recommended by Prof Yash Pal Ghai.
Ghai had created a constitutional revolution and made Kenyans ponder the question of governance. With every appointment announced by Kibaki, therefore, came an elaborate collection of ethnicity data by the people. This was done to enhance an early identification of any tendency of favouring any group. Among other things, the evaluation proved that the people who had in the past vehemently opposed Raila Odinga’s leadership in Nyanza were favourably considered by Kibaki’s administration for top jobs. These included Ndolo Ayah, who had always been a staunch Kanu supporter, and Dr Shem Ochuodho, who had refused to follow Raila in his short association with Daniel arap Moi’s Kanu. This also proved Kibaki did not rely on Raila’s guidance in appointing people from Nyanza to high government positions. Kibaki’s unilateral appointments were of course protected by the constitution but in some quarter they were seen as a failure in democracy as they hijacked the collective responsibility of the Narc Summit.
It seemed that what was then euphemistically known as the ‘Six-Ms’ and other close friends of the President did not understand how angry wananchi became when they saw a concentration of members of one ethnic group in top public offices. The battles between factions in Narc never ended when leaders continued to look at all appointments from an ethnic point of view. And the fight was intensified when the constitutional conference began.
Yet this game of ethnic favoritism was started by Jomo Kenyatta himself, and then perfected by Daniel Moi. People hoped it would be ended by Mwai Kibaki. But the country was shocked during Kibaki’s first term to see the appointment of elders of questionable modern management skills getting very important jobs. The new bosses almost all came from around Mt. Kenya. This made the Bomas constitutional conference think more of devolution of powers through a prime minister rather than supporting a strong unitary government under a powerful president. The country was run by an administration that had so many differences within it. The appointment of friends of the President to important positions also created a big split within Narc.
So when Kofi Annan came to Kenya to mediate peace following the post election clashes of last year, Raila had the hindsight of what really went wrong with Narc. This time he made sure the position of a Prime Minister was not only made into a statutory law but also incorporated in the Constitution itself. In that way he really outwitted the Mt. Kenya Mafia.
This is not the first time Kibaki and Raila have established a political agreement. When they made the first attempt before the 2002 general elections, they signed the now infamous MoU which created the post of an Executive Prime Minister for Raila. The many political parties that formed Narc to oust Kanu from power were to be guided by the Summit made up of Moody Awori as its chairman and George Saitoti, Raila Odinga, Kalonzo Musyoka, Kipruto arap Kirwa, Charity Ngilu, Mwai Kibaki and Michael Wamalwa as its members.
If the Summit was not dissolved by the Mt. Kenya Mafia soon after Mwai Kibaki was first sworn in as the third President of Kenya, the chances would have been the current strong coalition Government would have been established as long ago as 2003. The Narc Government would have grown into the kind of a Grand Coalition we have today. But the Gema leaders around Mwai Kibaki would hear nothing about the Summit. They also did not want the Constitution changed to create the post of a prime Minister despite the existence of the MoU.
Political animosity between Raila Odinga and the Gema group around Mwai Kibaki started at that time when a handful of extremely rich people from Central Province claimed that the Summit could not be above the Cabinet. At hat time John Michuki, who was the Minister for Transport and Communication, said the Summit should be dissolved because its continued existence undermined the Presidency. His son in law, who was the Mukurwini MP, Mutahi Kagwe, said there was no need for constitutional changes because Mwai Kibaki should be allowed to continue ruling Kenya for five years under the old constitution which made a demigod out of the President.
In an article published by The Standard on April 5th, 2003, I condemned the statements by the two and said: The statements by these two leaders are in poor taste and contribute to a public disservice which threatens the unprecedented co-operation and unity among Kenyan leaders that made Narc win the elections.
The perilously arrogant statements from the Central Province MPs resembled the conceited Kanu braggadocio which led to its downfall. The people could then see that the statements by Gema leaders were an uncomfortable blend of power hunger and disregard for wananchi’s feelings which were not a particularly appealing combination. Wananchi, who backed Narc to remove Kanu from power, could at that time see that things were not shaping up as they expected. There were practical and moral problems embedded in the Narc crisis. What seemed to bother most Kenyans at that time were the new jingoistic Mount Kenya Mafia’s ways of interpreting events even when their methods went against the moral and honest spirit of co-operation between political leaders from all corners of the country.
Naturally, there were serious practical hurdles to jump before the clique’s ambition could be fulfilled. If they needed to remain in power they had to be supported by the majority of Members of Parliament who at that time did not seem to be delighted by the trend to have Gema people dominate in almost all important Government positions. Indeed the entire political scenario put the power clique around Kibaki out of balance as it was typified by parliamentary rebellion which forced the government to withdraw some vital Bills from the order paper.
To many people the vitriol spewed by Michuki and Kagwe showed they harboured political ambition which was occasionally unleashed by recklessness in their speech. Wananchi were eager to see which of the Narc leaders would have the decency, integrity and honour to uphold the unity among the people and which ones among them would exhibit a diminutive mentality that would disregard human decency that required them to honour promises made to the masses of Kenya.
The squabbles in Narc proved that the Government was not functioning the way the coalition expected it to and many Kenyans were surprised when there was not even a time line on how the new party was to be reorganized. The failure of the Summit to meet and sort out Narc problems had influenced opinion right across the country in such a manner as to threaten to erode the goodwill they had so far succeeded to establish. To many Kenyans the objective of a few people around Kibaki was not only to accumulate power but to hijack Narc - a political task they could hardly achieve without the co-operation of the Summit.
It was obvious that the Narc coalition was so much concerned about winning the 2002 election that it paid little attention to post-election settlements. Little did anyone suspect that the Mount Kenya group would run the show after victory. But if that regime was to survive the crisis it was going through then it had, as much as possible, to involve all the original leaders of Narc. Wananchi wanted to see a hybrid administration running the country when the people were engaged in the process of reshaping the constitution along the lines recommended by Prof Yash Pal Ghai.
Ghai had created a constitutional revolution and made Kenyans ponder the question of governance. With every appointment announced by Kibaki, therefore, came an elaborate collection of ethnicity data by the people. This was done to enhance an early identification of any tendency of favouring any group. Among other things, the evaluation proved that the people who had in the past vehemently opposed Raila Odinga’s leadership in Nyanza were favourably considered by Kibaki’s administration for top jobs. These included Ndolo Ayah, who had always been a staunch Kanu supporter, and Dr Shem Ochuodho, who had refused to follow Raila in his short association with Daniel arap Moi’s Kanu. This also proved Kibaki did not rely on Raila’s guidance in appointing people from Nyanza to high government positions. Kibaki’s unilateral appointments were of course protected by the constitution but in some quarter they were seen as a failure in democracy as they hijacked the collective responsibility of the Narc Summit.
It seemed that what was then euphemistically known as the ‘Six-Ms’ and other close friends of the President did not understand how angry wananchi became when they saw a concentration of members of one ethnic group in top public offices. The battles between factions in Narc never ended when leaders continued to look at all appointments from an ethnic point of view. And the fight was intensified when the constitutional conference began.
Yet this game of ethnic favoritism was started by Jomo Kenyatta himself, and then perfected by Daniel Moi. People hoped it would be ended by Mwai Kibaki. But the country was shocked during Kibaki’s first term to see the appointment of elders of questionable modern management skills getting very important jobs. The new bosses almost all came from around Mt. Kenya. This made the Bomas constitutional conference think more of devolution of powers through a prime minister rather than supporting a strong unitary government under a powerful president. The country was run by an administration that had so many differences within it. The appointment of friends of the President to important positions also created a big split within Narc.
So when Kofi Annan came to Kenya to mediate peace following the post election clashes of last year, Raila had the hindsight of what really went wrong with Narc. This time he made sure the position of a Prime Minister was not only made into a statutory law but also incorporated in the Constitution itself. In that way he really outwitted the Mt. Kenya Mafia.
Wednesday, May 7, 2008
Grand Opposition Doomed to Fail !
The idea of a Parliamentary Opposition in a democracy is excellent where political parties function democratically and elections are conducted in a free and fair manner. Parties that form oppositions in parliaments play an extremely important role in keeping governments on their toes and making sure legislatures are never used as rubber stamps.
The motion that has just been passed in Parliament, recommending the formation of a Grand Opposition is, however, likely to be a total failure . This is mainly because the man who really controls Parliament, Raila Odinga , opposes the Grand Opposition. As a matter of fact he sees it as a sinister move to deny him the leadership of the majority party in the Legislature. And it must be remembered that Raila does not take those who challenge him politically lightly. He has always been the top boss of every political party he has established. And ODM is one of those parties. So whoever joins the Grand Opposition from ODM will never be forgiven by the Prime Minister who is an extremely dangerous person to have as apolitical enemy. Ask Mwai Kibaki and he will tell you for nothing.
Unfortunately , those forming the Grand Opposition do not have a party of their own . MPs belonging to the ODM can always be summoned by Raila and be, accordingly, disciplined. We all saw how they were regimentally organised to vote for the current Speaker. Those belonging to PNU can simply be given a deaf ear by Mwai Kibaki . This is his normal way of dealing with his political enemies and it sometimes has worked wonders. Grand Opposition supporters will also find it difficult to form a Parliamentary Group without a political party.
The Budalangi MP, Ababu Namwamba, is the brain behind the Grand Opposition idea. He is also the darling of young people in both Western Province and among those who harbour serious doubts about the success of the current coalition Government. As a Kenyan, he obviously enjoys the right to associate with whoever he wants ; but that right must adhere to some well established rules which demand that he obeys the law. The fact that he wants to come up with a new Bill to establish a Grand Oppositions means at the moment there is no law backing such an Opposition. Once it is formed, however, it will be a power to reckon with. In the unlikely event that such an Opposition is fashioned, it will, most certainly, have its own Parliamentary Group which could, at any time, hold the Government to ransom as no Bill will be passed without its approval. That is the main reason why Raila Odinga and Mutula Kilonzo are opposing its establishment
Leaders of the so called Grand Opposition actually come from political parties that have agreed to form a Grand Coalition Government. This business of a Grand Opposition came about after the formation of the Cabinet and it looks like a brainchild of disappointed people who failed to get any position in the new Government. Besides that, it will be a Herculean task to change the motion into a Bill that will develop into a law establishing an official Opposition in Kenya. Anyone who backs that Bill will probably be seen by both the PNU and ODM as a traitor, who does not want the current government to succeed.
The idea of forming a Grand Opposition brings some critical questions to mind: Is it possible to form such an Opposition without a separate political party outside ODM and PNU? Can MPs still disown political parties that sponsored them to Parliament and remain MPs without seeking new mandate from the electorate? Where will the new Opposition get funds from to organize what will virtually be a de facto political party?
Despite the disappointment of scores of MPs for missing cabinet positions, they will still have to toe party lines according to the wishes of Raila Odinga in ODM and Mwai Kibaki in PNU. Unfortunately it does not look like Kibaki and Raila will back the Grand Opposition, simply because it may weaken the support they have in Parliament from their backbenchers. In any case the Grand Opposition itself will have to poach members from Raila’s ODM and Kibaki’s PNU.
This, however, does not mean that a constructive parliamentary opposition cannot be exercised from the backbenches without forming an Official Opposition. It is possible to have a functioning opposition that is loyal to the Government. In Britain the Opposition is supposed to be loyal and is in fact referred to as “Her Majesty’s Opposition”. This does not mean that it is not supposed to be a strong Opposition.
An Opposition that is formed in Parliament to teach the government a lesson for forgetting certain individuals while formulating the Cabinet is an Opposition that will not genuinely perform its duties properly because its only commitment is to disappointment. It will therefore oppose for the sake of opposing. A loyal Opposition that, on the other hand, spontaneously emerges from the backbench will genuinely oppose some specific government policies in order to correct what is manifestly wrong in legislation. Members of such an opposition will oppose in order to improve what is passed by Parliament for the betterment of the country. History is full of dedicated parliamentarians of that calibre, including such personalities as Martin Shikuku and the late J.M. Kariuki.
Those trying to form the Grand Opposition will soon realize that the dangerous game they are trying to play could easily backfire and throw them into political oblivion. They are trying to oppose such giants in the game as Raila Odinga and Mwai Kibaki. The combined force of these two is strong enough to make any current MP get into the dustbin of political history. This does not at all mean that it is unwise to oppose the current government when it makes such obvious mistakes as the formation of a blotted Cabinet.
Instead of trying to commit political suicide by taking the bull by its horns through the formation of a Grand Opposition, the politicians concerned could keep the Cabinet busy by asking relevant questions about the harmonization of party manifestos while building the nation. Questions time in Parliament should be filled with penetrating inquiries about different ministers’ activities and the justification of their existence.
As things stand today, anyone will be forgiven to suspect the Grand Opposition is being formed for extremely selfish reasons. If the purpose is to make sure that this country will be governed in a transparent manner without any corruption or nepotism, then that can easily be done from the backbench without any Bill to form an official Opposition. If all Member of Parliament, regardless of political parties they come from, performed their duties as elected legislators diligently then the Government would automatically be kept on its toes all the time.
The passing of a motion to bring up a Bill to establish a Grand Coalition will spark off a hot debate that will separate the horses from the mules in political argument. The Bill will most certainly not see the light of the day without very thought provoking contribution from all sorts of people in every sector, particularly the civil society, of our community. The debates should be conducted in a sincere manner that is meant to enhance our democratic values.
The supremacy of our Legislature would be meaningless without its support from grassroots which could only come about through open debates regarding its shape, structure and form. The manner in which the people have accepted the present formation of the Grand Coalition Government means they believe in actions rather than words. An Opposition for its own sake would be based on the latter instead of the former. Now is the time to get views from the Church, NGOs, professionals, trade unions and academics about the matter.
The most fundamental question to ask is whether Parliament could be just as democratic without Opposition as when it has one . The very fact that such a motion could go through means a latent opposition, which is functionally operational, does indeed exist. But a Grand Opposition that will end up becoming a main instrument to oppose the policies of ODM and PNU? Not likely at the moment. Those two constitute today's Parliament in Kenya.
The motion that has just been passed in Parliament, recommending the formation of a Grand Opposition is, however, likely to be a total failure . This is mainly because the man who really controls Parliament, Raila Odinga , opposes the Grand Opposition. As a matter of fact he sees it as a sinister move to deny him the leadership of the majority party in the Legislature. And it must be remembered that Raila does not take those who challenge him politically lightly. He has always been the top boss of every political party he has established. And ODM is one of those parties. So whoever joins the Grand Opposition from ODM will never be forgiven by the Prime Minister who is an extremely dangerous person to have as apolitical enemy. Ask Mwai Kibaki and he will tell you for nothing.
Unfortunately , those forming the Grand Opposition do not have a party of their own . MPs belonging to the ODM can always be summoned by Raila and be, accordingly, disciplined. We all saw how they were regimentally organised to vote for the current Speaker. Those belonging to PNU can simply be given a deaf ear by Mwai Kibaki . This is his normal way of dealing with his political enemies and it sometimes has worked wonders. Grand Opposition supporters will also find it difficult to form a Parliamentary Group without a political party.
The Budalangi MP, Ababu Namwamba, is the brain behind the Grand Opposition idea. He is also the darling of young people in both Western Province and among those who harbour serious doubts about the success of the current coalition Government. As a Kenyan, he obviously enjoys the right to associate with whoever he wants ; but that right must adhere to some well established rules which demand that he obeys the law. The fact that he wants to come up with a new Bill to establish a Grand Oppositions means at the moment there is no law backing such an Opposition. Once it is formed, however, it will be a power to reckon with. In the unlikely event that such an Opposition is fashioned, it will, most certainly, have its own Parliamentary Group which could, at any time, hold the Government to ransom as no Bill will be passed without its approval. That is the main reason why Raila Odinga and Mutula Kilonzo are opposing its establishment
Leaders of the so called Grand Opposition actually come from political parties that have agreed to form a Grand Coalition Government. This business of a Grand Opposition came about after the formation of the Cabinet and it looks like a brainchild of disappointed people who failed to get any position in the new Government. Besides that, it will be a Herculean task to change the motion into a Bill that will develop into a law establishing an official Opposition in Kenya. Anyone who backs that Bill will probably be seen by both the PNU and ODM as a traitor, who does not want the current government to succeed.
The idea of forming a Grand Opposition brings some critical questions to mind: Is it possible to form such an Opposition without a separate political party outside ODM and PNU? Can MPs still disown political parties that sponsored them to Parliament and remain MPs without seeking new mandate from the electorate? Where will the new Opposition get funds from to organize what will virtually be a de facto political party?
Despite the disappointment of scores of MPs for missing cabinet positions, they will still have to toe party lines according to the wishes of Raila Odinga in ODM and Mwai Kibaki in PNU. Unfortunately it does not look like Kibaki and Raila will back the Grand Opposition, simply because it may weaken the support they have in Parliament from their backbenchers. In any case the Grand Opposition itself will have to poach members from Raila’s ODM and Kibaki’s PNU.
This, however, does not mean that a constructive parliamentary opposition cannot be exercised from the backbenches without forming an Official Opposition. It is possible to have a functioning opposition that is loyal to the Government. In Britain the Opposition is supposed to be loyal and is in fact referred to as “Her Majesty’s Opposition”. This does not mean that it is not supposed to be a strong Opposition.
An Opposition that is formed in Parliament to teach the government a lesson for forgetting certain individuals while formulating the Cabinet is an Opposition that will not genuinely perform its duties properly because its only commitment is to disappointment. It will therefore oppose for the sake of opposing. A loyal Opposition that, on the other hand, spontaneously emerges from the backbench will genuinely oppose some specific government policies in order to correct what is manifestly wrong in legislation. Members of such an opposition will oppose in order to improve what is passed by Parliament for the betterment of the country. History is full of dedicated parliamentarians of that calibre, including such personalities as Martin Shikuku and the late J.M. Kariuki.
Those trying to form the Grand Opposition will soon realize that the dangerous game they are trying to play could easily backfire and throw them into political oblivion. They are trying to oppose such giants in the game as Raila Odinga and Mwai Kibaki. The combined force of these two is strong enough to make any current MP get into the dustbin of political history. This does not at all mean that it is unwise to oppose the current government when it makes such obvious mistakes as the formation of a blotted Cabinet.
Instead of trying to commit political suicide by taking the bull by its horns through the formation of a Grand Opposition, the politicians concerned could keep the Cabinet busy by asking relevant questions about the harmonization of party manifestos while building the nation. Questions time in Parliament should be filled with penetrating inquiries about different ministers’ activities and the justification of their existence.
As things stand today, anyone will be forgiven to suspect the Grand Opposition is being formed for extremely selfish reasons. If the purpose is to make sure that this country will be governed in a transparent manner without any corruption or nepotism, then that can easily be done from the backbench without any Bill to form an official Opposition. If all Member of Parliament, regardless of political parties they come from, performed their duties as elected legislators diligently then the Government would automatically be kept on its toes all the time.
The passing of a motion to bring up a Bill to establish a Grand Coalition will spark off a hot debate that will separate the horses from the mules in political argument. The Bill will most certainly not see the light of the day without very thought provoking contribution from all sorts of people in every sector, particularly the civil society, of our community. The debates should be conducted in a sincere manner that is meant to enhance our democratic values.
The supremacy of our Legislature would be meaningless without its support from grassroots which could only come about through open debates regarding its shape, structure and form. The manner in which the people have accepted the present formation of the Grand Coalition Government means they believe in actions rather than words. An Opposition for its own sake would be based on the latter instead of the former. Now is the time to get views from the Church, NGOs, professionals, trade unions and academics about the matter.
The most fundamental question to ask is whether Parliament could be just as democratic without Opposition as when it has one . The very fact that such a motion could go through means a latent opposition, which is functionally operational, does indeed exist. But a Grand Opposition that will end up becoming a main instrument to oppose the policies of ODM and PNU? Not likely at the moment. Those two constitute today's Parliament in Kenya.
Tuesday, May 6, 2008
Kibaki's Labour Day Sins
Mwai Kibaki’s popularity among Kenyan workers sunk to the bottom of the sea of hatred on Labour Day when he failed to make an Executive Order to increase the minimum wages for the country’s most exploited labour force. His reluctance to do anything about the fate of the impoverished workers, now living from hand to mouth, due to the hard economic times the country is going through, widened the gap between the haves and the have-nots. And this, in a manner that could be perceived to mean that he cared little for thousands of the underdogs who had turned up to listen to him, as their very last hope to get rescued from the grip of the sharks of Kenya employers, who make billions of shillings every day through the exploitations of workers.
In harsh words, quite uncommon from a politician, Kibaki told the angry workers that he had nothing to offer them because the country’s economy had been wrecked by internal conflict following the disputed presidential elections. The innuendo was clear – they were now suffering the pains of self inflicted injuries caused by their tribal leaders who made them riot and cause mayhem in December last year, when the economy of the country was booming. Kibaki sounded cruel and careless. But was there anything he could do anyway? He had just created the most expensive 40 ministries to accommodate important people from almost every ethic group in the country according his and the Prime Minister’s wishes. The Ministries had to be maintained at great expenses to please almost all tribes and the people could not have their cake and eat it. They were the sacrificial lambs.
Kibaki’s Labour Day speech was a hard pill to swallow; but was that all that he had to offer the workers of Kenya on that important day for them? May be the greatest gift he had for wage earners were five laws which his government had passed last year and which , if implemented, could change the lives of all the workers in Kenya . The laws were: The Employment Act, 2007, The Labour Relations Act, 2007, The Labour Institution Act, 2007, The Occupational Safety and Health Act, 2007 and the Work Injury Benefit Act, 2007. Unfortunately, very few people in the country knew anything about the new laws as they gathered at Uhuru Park to hear their President address them on Labour Day. Besides that, hungry people don’t eat laws anyway!
When all is said and done, however, the time is long overdue for the introduction of the new laws whatever resentment some employers may have against them. Take the Employment Act, 2007 for example. This act of Parliament declares and defines the fundamental rights of employees and provides basic condition of employment. It also aims at regulating employment of children.
Any random visit at places of work in any part of Kenya ,will reveal shocking working conditions where Kenyan workers are exploited on a daily basis. Besides that some employers import workers from India and other places to do the work Kenyans can do very well. Yet the Ministry of Labour seems to be looking the other way when there is obvious and most conspicuous discrimination going on in places of work in this country. The Employment Act, 2007 is quite clear on discrimination in employment and says it shall be the duty of the Minister for Labour, Labour Officers and the Industrial Court to promote equality of opportunity in the employment in order to eliminate discrimination in employment.
Section 5 (3) of the Act says no employer shall discriminate directly or indirectly , against an employee or prospective employee or harass an employee or prosperities employee – (a) on ground of race, colour, sex, language, religion , political or other opinion , nationality, ethnic or social origin, disability, pregnancy mental status or HIV status. That is the language the workers of Kenya wanted to hear from their President but he did not have the time to elaborately explain the new law. Workers wanted to shout him down because all they wanted to hear him talk about is pay increase. Kenyan workers however face other problems apart from a thin pay packet. Among the problems is sexual harassment at places of work.
Ask the majority beautiful ladies holding any top jobs and the chances are that they had to provide sexual favours to bosses to either get the jobs they have or to expect any promotion. This is something swept under the carpet and no one talks about. Yet it goes on in many places of work in Kenya. In two words it is called sexual harassment. But ask many Kenyan workers what sexual harassment is all about and the answer is likely to be either vague or very secretive.
Nevertheless , the Employment Act, 2007, is also so clear about this evil and says in Section 6 (1) that an employee is sexually harassed if the employer of that employee or the representative of that employer or co-worker – (a) directly or indirectly request that employee for sexual intercourse, sexual contact or any other form of sexual activity that contains an implied or express –(i) promise of preferential treatment in employment; (ii) threat of detrimental treatment in employment or (iii) threat about the present or future employment status of the employment.
The most exploited workers in Kenya are casual workers who have been known to work at the same place for years without any benefit or proper wages. The new Ac protects such workers in Section 37(1) (a) and (b) which improves the contract of service of casual employees. In the construction industries whole buildings and roads are put up by the continued exploitation of casual workers 40 years after independence. If the new law works it will be a better gift for workers than any wage increase Kibaki would have announced on the Labour Day.
Kenya is notorious for exploitation of children through child labour or even child prostitution. The new act comes up with prohibition of employment children between thirteen years and sixteen years of age. In Section 56 (1) the Employment Act says no person shall employ a child who has not attained the age of thirteen years whether gainfully or otherwise in any undertaking. Subsection (2) , however, says a child of between thirteen years of age and sixteen years of age may be employed to perform light work which is –(a) not likely to be harmful to the child’s health or development; and (b) not such as to prejudice the child’s attendance at school, his participation in vocational orientation or training programmes. Section 64(1) of the Act warns that a person who employs, engages, or uses a child in an industrial undertaking in contravention of the provision of this Part, commits an offense.
Another gift from the President to the workers came in the form of the Labour Relations Act, 2007, which is an Act of Parliament which consolidates the law relating to trade unions and trade disputes. It provides for the registration, regulation, management and democratization of trade unions and the employers organizations or federations, and promotes sound labour relations through the protection and promotion of freedom of association, the encouragement of collective bargaining and promotion of orderly and expeditious dispute settlement, conducive to social justice and economic development.
The Labour Relations Act, 2007 promotes freedom of association in its Section 4 (1) which allows every employee the right to form a trade union or join a trade union. There are unscrupulous employers in Kenya who are very well known in creating fictitious management positions in order to deny their employees the right to join trade unions. One such group of employers is to be found in the media industry which creates fictitious editorial positions whereby everyone in the newsroom is an editor of something. Such media houses have regulations which prohibit any editor from joining a trade union.
Apart from promoting freedom of association, the Labour Relations Act, 2007 protects workers’ property and money against their misuse by rogue trade union leaders. Section 47(1)(a) orders any person who has in his possession or control any property of a trade union , employers’ organization or federation in violation of its rules or who has unlawfully expended or withheld its moneys, to deliver that property or pay that money to its trustees. Stealing workers’ money through check-off system has been a controversial subject in Kenya, though no labour leader has appeared in court charge with theft yet. All that is known is trade union leaders in Kenya live beyond their means and appear to be as prosperous as employers themselves.
The third gift from Mwai Kibaki on Labour Day was the Labour Institutions Act, 2007 which is an Act of Parliament which establishes labour institutions and provides for their functions, powers and duties. Among other things this Act establishes the National Labour Board which will advice the Minister for Labour on all matters concerning employment and labour and on legislation affecting employment and labour and on any matter relating to labour relations and trade unionism. With members from many sectors it shall also advice the Minister on many other issues concerning industrial relations in the country.
May be the most important part of this Act is Section 11(1) that establishes an Industrial Court with all the powers and rights set out in the same Act or any other law, for the furtherance , securing and maintenance of good industrial and labour relations and employment conditions in Kenya. The Jurisdiction of the court is stipulated in Section 12 (6) which says any decision or order by the Industrial Court shall have the same force and effect as a judgement of the High Court and a certificate signed by the Registrar of the Industrial Court shall be conclusive evidence of the existence of such a decision or order.
According to Section 15(a) of the Act the, Court shall have remedial powers to reinstate any employee who has been wrongfully dismissed. The Act also establishes Wages Council which will be made up of a general wages council and an agricultural wages council. In Section 55(2) (b) the Labour Institution Act says no person shall charge or recover any payment in connection with the procurement of employment through an employment agency. This is very good news for Kenyans who have been constant victims of bogus employment agencies.
The fourth gift to the workers from the President was the Occupational Safety and Health Act, 2007 which is an Act of Parliament to provide the safety, health and welfare of workers and all persons lawfully present at workplaces. The act also seeks to provide for the establishment of the National Council for the Occupational Safety and Health. For obvious reasons some employers are bound to be resentful to this particular Act because to will cost them some money to comply with. Section 47 (1) of Occupational Safety and Health Act, 2007, for example, demands that every workplace shall be kept in a clean state and free from effluvia arising from any drain , sanitary convenience or nuisance. A visit to Thika’s industrial area would find dozens of fairly important industries violating this law.
Many employers in Kenya do not bother to provide the workers with proper toilets. As a matter of fact in many of these places toilets are locked up and keys are found in bosses’ offices. With very few exceptions, there are always special toilets for bosses. This is despite Section 52 (1) of the Occupation Safety and Health Act, 2007, which categorically says sufficient and suitable sanitary conveniences for the persons employed in the workplace shall be provided, maintained and kept clean, and effective provisions shall be made for lighting the conveniences; and where persons of both sexes are or are intended to be employed, such conveniences shall afford proper separate accommodation for persons of each sex. This is all easier said than done in Kenya.
Many Kenyans die at their places of work. The most shocking incident involved a building under construction in the middle of the city of Nairobi which collapsed in broad daylight burying dozens alive. Section 111 of the new Act puts a heavy fine for such a crime and clearly says that if any person is killed, or dies, suffers any bodily injury, in consequence of the occupier or owner of a workplace having contravened any provision of this Act, the occupier or owner of the workplace shall, without prejudice to any other penalty, be liable to a fine not exceeding one million shillings, or to imprisonment for a term not exceeding twelve months.
Last but not least the President’s gift to the workers on Labour Day was the Work Injury Benefits Act, 2007. It is an act of Parliament to provide for compensation to employees for work related injuries and diseases contracted in the course of their employment. Section 7(1) of this Act says every employer shall obtain and maintain an insurance policy, with an insurer approved by the Minister in respect of any liability that the employer may incur under this Act to any of his employees.
These five laws are all intended to benefit the workers of Kenya. Unfortunately the workers know nothing about them while employers do not accept them all in their present form or as they are written in the Acts .Kibaki’s number one sin is to fail to broadcast them long enough for the workers to know and accept them before the Labour Day celebrations .
In harsh words, quite uncommon from a politician, Kibaki told the angry workers that he had nothing to offer them because the country’s economy had been wrecked by internal conflict following the disputed presidential elections. The innuendo was clear – they were now suffering the pains of self inflicted injuries caused by their tribal leaders who made them riot and cause mayhem in December last year, when the economy of the country was booming. Kibaki sounded cruel and careless. But was there anything he could do anyway? He had just created the most expensive 40 ministries to accommodate important people from almost every ethic group in the country according his and the Prime Minister’s wishes. The Ministries had to be maintained at great expenses to please almost all tribes and the people could not have their cake and eat it. They were the sacrificial lambs.
Kibaki’s Labour Day speech was a hard pill to swallow; but was that all that he had to offer the workers of Kenya on that important day for them? May be the greatest gift he had for wage earners were five laws which his government had passed last year and which , if implemented, could change the lives of all the workers in Kenya . The laws were: The Employment Act, 2007, The Labour Relations Act, 2007, The Labour Institution Act, 2007, The Occupational Safety and Health Act, 2007 and the Work Injury Benefit Act, 2007. Unfortunately, very few people in the country knew anything about the new laws as they gathered at Uhuru Park to hear their President address them on Labour Day. Besides that, hungry people don’t eat laws anyway!
When all is said and done, however, the time is long overdue for the introduction of the new laws whatever resentment some employers may have against them. Take the Employment Act, 2007 for example. This act of Parliament declares and defines the fundamental rights of employees and provides basic condition of employment. It also aims at regulating employment of children.
Any random visit at places of work in any part of Kenya ,will reveal shocking working conditions where Kenyan workers are exploited on a daily basis. Besides that some employers import workers from India and other places to do the work Kenyans can do very well. Yet the Ministry of Labour seems to be looking the other way when there is obvious and most conspicuous discrimination going on in places of work in this country. The Employment Act, 2007 is quite clear on discrimination in employment and says it shall be the duty of the Minister for Labour, Labour Officers and the Industrial Court to promote equality of opportunity in the employment in order to eliminate discrimination in employment.
Section 5 (3) of the Act says no employer shall discriminate directly or indirectly , against an employee or prospective employee or harass an employee or prosperities employee – (a) on ground of race, colour, sex, language, religion , political or other opinion , nationality, ethnic or social origin, disability, pregnancy mental status or HIV status. That is the language the workers of Kenya wanted to hear from their President but he did not have the time to elaborately explain the new law. Workers wanted to shout him down because all they wanted to hear him talk about is pay increase. Kenyan workers however face other problems apart from a thin pay packet. Among the problems is sexual harassment at places of work.
Ask the majority beautiful ladies holding any top jobs and the chances are that they had to provide sexual favours to bosses to either get the jobs they have or to expect any promotion. This is something swept under the carpet and no one talks about. Yet it goes on in many places of work in Kenya. In two words it is called sexual harassment. But ask many Kenyan workers what sexual harassment is all about and the answer is likely to be either vague or very secretive.
Nevertheless , the Employment Act, 2007, is also so clear about this evil and says in Section 6 (1) that an employee is sexually harassed if the employer of that employee or the representative of that employer or co-worker – (a) directly or indirectly request that employee for sexual intercourse, sexual contact or any other form of sexual activity that contains an implied or express –(i) promise of preferential treatment in employment; (ii) threat of detrimental treatment in employment or (iii) threat about the present or future employment status of the employment.
The most exploited workers in Kenya are casual workers who have been known to work at the same place for years without any benefit or proper wages. The new Ac protects such workers in Section 37(1) (a) and (b) which improves the contract of service of casual employees. In the construction industries whole buildings and roads are put up by the continued exploitation of casual workers 40 years after independence. If the new law works it will be a better gift for workers than any wage increase Kibaki would have announced on the Labour Day.
Kenya is notorious for exploitation of children through child labour or even child prostitution. The new act comes up with prohibition of employment children between thirteen years and sixteen years of age. In Section 56 (1) the Employment Act says no person shall employ a child who has not attained the age of thirteen years whether gainfully or otherwise in any undertaking. Subsection (2) , however, says a child of between thirteen years of age and sixteen years of age may be employed to perform light work which is –(a) not likely to be harmful to the child’s health or development; and (b) not such as to prejudice the child’s attendance at school, his participation in vocational orientation or training programmes. Section 64(1) of the Act warns that a person who employs, engages, or uses a child in an industrial undertaking in contravention of the provision of this Part, commits an offense.
Another gift from the President to the workers came in the form of the Labour Relations Act, 2007, which is an Act of Parliament which consolidates the law relating to trade unions and trade disputes. It provides for the registration, regulation, management and democratization of trade unions and the employers organizations or federations, and promotes sound labour relations through the protection and promotion of freedom of association, the encouragement of collective bargaining and promotion of orderly and expeditious dispute settlement, conducive to social justice and economic development.
The Labour Relations Act, 2007 promotes freedom of association in its Section 4 (1) which allows every employee the right to form a trade union or join a trade union. There are unscrupulous employers in Kenya who are very well known in creating fictitious management positions in order to deny their employees the right to join trade unions. One such group of employers is to be found in the media industry which creates fictitious editorial positions whereby everyone in the newsroom is an editor of something. Such media houses have regulations which prohibit any editor from joining a trade union.
Apart from promoting freedom of association, the Labour Relations Act, 2007 protects workers’ property and money against their misuse by rogue trade union leaders. Section 47(1)(a) orders any person who has in his possession or control any property of a trade union , employers’ organization or federation in violation of its rules or who has unlawfully expended or withheld its moneys, to deliver that property or pay that money to its trustees. Stealing workers’ money through check-off system has been a controversial subject in Kenya, though no labour leader has appeared in court charge with theft yet. All that is known is trade union leaders in Kenya live beyond their means and appear to be as prosperous as employers themselves.
The third gift from Mwai Kibaki on Labour Day was the Labour Institutions Act, 2007 which is an Act of Parliament which establishes labour institutions and provides for their functions, powers and duties. Among other things this Act establishes the National Labour Board which will advice the Minister for Labour on all matters concerning employment and labour and on legislation affecting employment and labour and on any matter relating to labour relations and trade unionism. With members from many sectors it shall also advice the Minister on many other issues concerning industrial relations in the country.
May be the most important part of this Act is Section 11(1) that establishes an Industrial Court with all the powers and rights set out in the same Act or any other law, for the furtherance , securing and maintenance of good industrial and labour relations and employment conditions in Kenya. The Jurisdiction of the court is stipulated in Section 12 (6) which says any decision or order by the Industrial Court shall have the same force and effect as a judgement of the High Court and a certificate signed by the Registrar of the Industrial Court shall be conclusive evidence of the existence of such a decision or order.
According to Section 15(a) of the Act the, Court shall have remedial powers to reinstate any employee who has been wrongfully dismissed. The Act also establishes Wages Council which will be made up of a general wages council and an agricultural wages council. In Section 55(2) (b) the Labour Institution Act says no person shall charge or recover any payment in connection with the procurement of employment through an employment agency. This is very good news for Kenyans who have been constant victims of bogus employment agencies.
The fourth gift to the workers from the President was the Occupational Safety and Health Act, 2007 which is an Act of Parliament to provide the safety, health and welfare of workers and all persons lawfully present at workplaces. The act also seeks to provide for the establishment of the National Council for the Occupational Safety and Health. For obvious reasons some employers are bound to be resentful to this particular Act because to will cost them some money to comply with. Section 47 (1) of Occupational Safety and Health Act, 2007, for example, demands that every workplace shall be kept in a clean state and free from effluvia arising from any drain , sanitary convenience or nuisance. A visit to Thika’s industrial area would find dozens of fairly important industries violating this law.
Many employers in Kenya do not bother to provide the workers with proper toilets. As a matter of fact in many of these places toilets are locked up and keys are found in bosses’ offices. With very few exceptions, there are always special toilets for bosses. This is despite Section 52 (1) of the Occupation Safety and Health Act, 2007, which categorically says sufficient and suitable sanitary conveniences for the persons employed in the workplace shall be provided, maintained and kept clean, and effective provisions shall be made for lighting the conveniences; and where persons of both sexes are or are intended to be employed, such conveniences shall afford proper separate accommodation for persons of each sex. This is all easier said than done in Kenya.
Many Kenyans die at their places of work. The most shocking incident involved a building under construction in the middle of the city of Nairobi which collapsed in broad daylight burying dozens alive. Section 111 of the new Act puts a heavy fine for such a crime and clearly says that if any person is killed, or dies, suffers any bodily injury, in consequence of the occupier or owner of a workplace having contravened any provision of this Act, the occupier or owner of the workplace shall, without prejudice to any other penalty, be liable to a fine not exceeding one million shillings, or to imprisonment for a term not exceeding twelve months.
Last but not least the President’s gift to the workers on Labour Day was the Work Injury Benefits Act, 2007. It is an act of Parliament to provide for compensation to employees for work related injuries and diseases contracted in the course of their employment. Section 7(1) of this Act says every employer shall obtain and maintain an insurance policy, with an insurer approved by the Minister in respect of any liability that the employer may incur under this Act to any of his employees.
These five laws are all intended to benefit the workers of Kenya. Unfortunately the workers know nothing about them while employers do not accept them all in their present form or as they are written in the Acts .Kibaki’s number one sin is to fail to broadcast them long enough for the workers to know and accept them before the Labour Day celebrations .
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