Wayzata World Factbook 1996/The World Factbook - 1996 Edition - Wayzata Technology (3079) (1996).iso/mac/TEXT/HUMANrts/KENYA.TXV

Text File | 1996-01-05 | 11KB | 213 lines

TITLE:  KENYA HUMAN RIGHTS PRACTICES, 1994
AUTHOR:  U.S. DEPARTMENT OF STATE
DATE:  FEBRUARY 1995



Section 6  Worker Rights

     a.  The Right of Association

Save for central government civil servants, including medical
personnel, and university academic staff, all workers are free
to join unions of their own choosing.  The law provides that as
few as seven workers may establish a union, provided that
objectives of the union do not contravene Kenyan law and that
another union is not already representative of the employees in
question.  The Government may deregister a union, but the
Registrar of Trade Unions must give the union 60 days to
challenge the deregistration notice; an appeal of the
Registrar's final decision may be brought before the High Court.

President Moi deregistered the Kenya Civil Servants Union in
1980; since 1989 the Central Organization of Trade Unions
(COTU) has sought to reverse this decision.  In September 1993,
16 officials announced formation of their union and demanded
registration by the Government.  In April the head of the Civil
Service Commission announced with great fanfare the recognition
of the Civil Servants Union, but President Moi subsequently
rescinded the approval (see below).

There are at least 33 unions in Kenya representing
approximately 350,000 workers, less than 20 percent of the
country's industrialized work force.  Except for the 150,000
teachers who belong to the Kenya National Union of Teachers
(KNUT), which the Government has registered, all other unions
are affiliated with one central body, the COTU.  The Government
created COTU in 1965 as the successor to both the Kenya
Federation of Labor and the Kenya African Workers Congress.
The 1965 decree establishing COTU gives the President power to
remove from office the central body's three senior leaders and
grants nonvoting membership on the Executive Board to a
representative of the Ministry of Labor as well as of KANU.
Most secretaries general within COTU, including those who
staged an abortive "coup" on July 2, 1993, putting into power
leaders more acceptable to the Government, agreed that any
COTU-KANU connection was obsolete in the multiparty era.

A High Court decision November 10, 1993, nullified the July 2
"election," but the coup plotters refused to vacate COTU
headquarters.  On January 31, however, a three-member panel of
the Appellate Court confirmed the November 10 decision and
threatened to jail the Registrar of Trade Unions on contempt of
court charges should he maintain his refusal to recognize the
old COTU leadership.  He complied with the order.  Two further
government-sponsored but unsuccessful attempts to unseat the
COTU leadership took place in March, and the elected leadership
remained in office throughout 1994.

The Trade Disputes Act permits workers to strike provided that
21 days have elapsed following the submission of a written
report to the Minister of Labor.  The military, police, prison
guards, and members of the national youth service are precluded
by law from striking.  Other civil servants, like their private
sector counterparts, may strike following the 21-day notice
period (28 days if it is an essential service, e.g., water,
health, education, air traffic control).  During this 21-day
period, the Minister may either mediate the dispute, nominate
an arbitrator, or refer the matter to the Industrial Court, a
body of five judges appointed by the President, for binding
arbitration.  Once a dispute is referred to either mediation,
fact finding, or arbitration, any subsequent strike is
illegal.  However, Section 28 of the Act gives the Minister of
Labor broad discretionary power, based on the Minister's
opinion, to determine the legality of any strike.  The Minister
in 1994 used this power to declare several strikes illegal,
although the required notice had been given.  If workers
attribute dismissals to strike or union activities, they have
recourse to the Industrial Court.

There were several strikes in 1994, including one by the
Universities Academic Staff Union (UASU) and one by the Kenya
Union of Medical Practitioners and Dentists (KUMPD).  The UASU
strike was the longest in Kenyan history.  Both groups,
representing government university and hospital staff, struck
after the Government had refused to register their unions.  The
Government arrested and dismissed the UASU leadership, and the
authorities did not reinstate over 20 professors after
suspending their strike September 28.  KUMPO leaders were
expelled from their government-provided housing.  After
suspending their strike September 27, fully qualified doctors--
but not necessarily interns--went back to work and received new
housing.  Although the UASU lost another court case in October,
both unions continued to press for recognition.

Internationally, COTU is affiliated with both the Organization
of African Trade Union Unity and the International
Confederation of Free Trade Unions.  Many of its affiliates are
linked to international trade secretariats of their choice.

     b.  The Right to Organize and Bargain Collectively

While not having the force of law, the 1962 Industrial
Relations Charter, executed by the Government, COTU, and the
Federation of Kenya Employers, gives workers the right to
engage in legitimate trade union organizational activities.
Both the Trade Disputes Act and the Charter authorize
collective bargaining between unions and employers.  Wages and
conditions of employment are established in the context of
negotiations between unions and management.  In 1994 the
Government relaxed wage policy guidelines to permit wage
increases of up to 100 percent and renegotiation of collective
agreements.  Collective bargaining agreements must be
registered with the Industrial Court in order to guarantee
adherence to these guidelines.  In 1994 about 250 agreements
were newly signed and registered with the Court.  Some 1
million workers (union and nonunion) were covered by these
accords.

The Trade Disputes Act makes it illegal for employers to
intimidate workers.  Employees wrongfully dismissed for union
activities are generally awarded damages in the form of lost
wages by the Industrial Court; reinstatement is not a common
remedy.  More often, aggrieved workers have found alternative
employment in the lengthy period prior to the hearing of their
cases.

Legislation authorizing the creation of export processing zones
(EPZ's) was passed in November, 1990.  The EPZ Authority
decided that local labor laws, including the right to organize
and bargain collectively, would apply in the EPZ's.  However,
in practice, it grants many exemptions.  For example, the
Government waived aspects of the law that prevent women from
working at night because women prevail in a number of
industries in the zones (see Section 6.e.).  Workers and some
government officials criticized working conditions in the EPZ's
in 1994.

     c.  Prohibition of Forced or Compulsory Labor

The Constitution proscribes slavery, servitude, and forced
labor.  However, under the Chiefs' Authority Act, local
officials may require people to perform community services in
an emergency.  This practice did not occur in 1994.  The
International Labor Organization (ILO) Committee of Experts has
found these and other provisions of Kenyan law to contravene
ILO Conventions 29 and 105 concerning forced labor but noted
the Government's efforts to review the Chiefs' Authority Act.

     d.  Minimum Age for Employment of Children

The Employment Act of 1976 makes the employment in industry of
children under the age of 16 illegal.  This Act applies neither
to the agricultural sector, where about 70 percent of the labor
force is employed, nor to children serving as apprentices under
the terms of the Industrial Training Act.  Ministry of Labor
officers nominally enforce the minimum age statute.  Children
often work as domestics in private homes (including those of
relatives), in the informal sector, and in family businesses
and farms (see Section 5).  Given the high levels of adult
unemployment and underemployment, the employment of children in
the formal industrial wage sector in violation of the
Employment Act is not a significant problem.

     e.  Acceptable Conditions of Work

The legal minimum wage for blue-collar workers in the wage
sector varies by location, age and skills, with 12 separate
scales.  After a modest May wage increase and considerable
appreciation of the Kenya shilling (ksh) against the dollar,
the lowest minimum wages were $37.80 (ksh 1,700) in urban areas
and $21.22 (ksh 955) in rural areas.  Workers in some
enterprises claimed that employers force them to work extra
hours with no overtime pay.  Prices for some basic commodities
declined in mid-1994, but because of rampant inflation the
minimum wage was still insufficient to support a family.  Most
workers relied on second jobs, subsistence farming, or the
extended family for additional support.

The Regulation of Wages and Conditions of Employment Act limits
the normal workweek to 52 hours, although some categories of
workers have a shorter workweek.  Nighttime employees, however,
may be employed for up to 60 hours a week.  As is the case with
respect to minimum age limitations, the Act specifically
excludes agricultural workers from its purview.  An employee in
the nonagricultural sector is entitled to 1 rest day in a
week.  There are also provisions for 1 month of annual leave
and sick leave.  Kenyan law provides that the total hours
worked (i.e., regular time plus overtime) in any 2-week period
for night workers may not exceed 144 hours; the limit is 120
hours for other workers.  The Ministry of Labor is tasked with
enforcing these regulations and reports of violations are few.

The Factories Act of 1951 sets forth detailed health and safety
standards; the Act was amended in 1990 to encompass the
agriculture, service, and government sectors.  The Minister of
Labor is responsible for enforcement of health and safety
provisions of the Factories Act.  The 65 health and safety
inspectors attached to the Ministry of Labor's Directorate of
Occupational Health and Safety Services have the authority to
inspect factories and work sites.  As a result of the 1990
amendments, the Directorate's inspectors may now issue notices
enjoining employers from practices or activities which involve
a risk of serious personal injuries.  Previously, only
magistrates were vested with this authority.  Such notices may
be appealed to the Factories Appeals Court, a body of four
members, one of whom must be a High Court judge.  In 1994 the
Directorate's factory inspections maintained their level, which
had increased dramatically in 1993.  Work-related accidents and
illnesses declined slightly.