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 .