Informe provisional - Informe núm. 291, Noviembre 1993

1. 552. In a communication dated 5 May 1993, the Organization of African Trade Union Unity (OATUU) submitted a complaint of violations of trade union rights against the Government of Kenya. The International Confederation of Free Trade Unions (ICFTU) submitted allegations concerning this case in communications dated 15 July and 13 August 1993.
2. 553. The Government supplied its observations on the case in a communication dated 27 May 1993.
3. 554. Kenya has not ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87). It has, however, ratified the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 555. In its complaint of 5 May 1993, the OATUU alleges that the Government had committed flagrant violations of human and trade union rights. In order to break a legal strike which the Central Organization of Trade Unions of Kenya (COTU-K) had organized from 3 May 1993 with the goal of obtaining a salary increase for Kenyan workers, the Government arbitrarily arrested Joseph J. Mugalla, General Secretary of COTU-K, Vice-President of the OATUU and member of the Governing Body of the ILO, as well as several of his close associates on 1 May 1993. Moreover, in order to ensure that this strike by COTU-K which had started on 3 May was a failure, the Government declared it illegal and undertook a vast campaign of dissuasion towards Kenyan workers by threats and intimidation of many kinds.
2. 556. In its communications of 15 July and 13 August 1993, the ICFTU submits more specifically that Mr. Mugalla was arrested on 1 May 1993 and released two days later by order of the High Court on police bond, but that he still faces the charge of inciting workers to go on strike. The other three trade union officers involved were Mr. Joseph Bolo, COTU-K Director for Research, who was arrested on 1 May and released by the police on 5 May; Mr. Boniface Munyao, COTU-K Deputy Secretary-General, who was arrested on 2 May and released on 5 May; and Mr. Jackson Mukolwe, a shop steward of the Kenya Union of Commercial, Food and Allied Workers, who was arrested on 3 May and released on 5 May. No charges were proferred against these trade union leaders. According to the ICFTU, these arrests took place following a very successful COTU-K rally organized on 1 May to celebrate Labour Day and at which Mr. Mugalla had severely yet legitimately critized the Government for ignoring COTU-K's calls, among other things, to improve workers' conditions.
3. 557. The ICFTU points out that since the establishment of political pluralism in Kenya in 1993, COTU-K had increasingly exerted its autonomy and independence and its leadership had expressed publicly the organization's position on key national socio-economic issues. In months prior to the grave incident, COTU-K leaders had been critical of the Government's handling of the economy, including its failure to tackle unemployment and high inflation. They had called on it to put an immediate end to corruption in official circles. COTU-K leaders had also requested the Government to enter into immediate negotiations for a general wage adjustment in order to redress the purchasing power of the workers. The subsequent refusal of the Government to engage in serious discussions on this matter forced COTU-K leaders to address themselves to the larger public in order to raise everyone's awareness about COTU-K's claims.
4. 558. According to the ICFTU, it is clear from the Government's reaction against COTU-K leaders during early May 1993 that the authorities have not adjusted to the new environment of political pluralism and the independence of the trade union movement. The ICFTU claims that the Government has developed an aggressive policy of forcing trade union leaders to toe the Government's line or else face dismissal. The Government had also involved the police force since Mr. Mugalla was brutally arrested by plain-clothed security men and detained at an unknown place. People feared for his life as the police refused to disclose even to his closest family members news about his whereabouts. Moreover, only two days after Mr. Mugalla's arrest, the Government ordered the police to arrest Mr. Jackson Mukolwe, the shop steward, while he was preparing to address a meeting of shop stewards near COTU-K headquarters. This was a further serious attack on trade unionists while on normal trade union duties.
5. 559. The ICFTU contends that these reprehensible government actions clearly violate the right of trade unionists to conduct freely their trade union activities including their right of assembly; to express freely their views on behalf of the trade union movement on national issues of direct relevance to workers' interests; and to engage freely in genuine negotiations and collective bargaining on behalf of workers.
6. 560. The ICFTU claims that subsequently, there was a series of acts of government interference in COTU-K's internal affairs. On 2 July 1993, the Government ordered the police to occupy the headquarters of COTU-K in a deliberate move to prevent the organization from holding its National Executive Council (NEC) meeting which had on its agenda the matter concerning pursuance of COTU-K's claim for a general wage adjustment. On that same date the Government supported a minority group of NEC members led by Mr. Johnson Ogendo, General Secretary of the Textile Workers' Union, in holding an unconstitutional meeting at the Kenyatta International Conference Centre in Nairobi. The following three top civil servants also participated in that meeting: the Permanent Secretary of the Ministry for Labour who addressed the meeting, the Chief Industrial Officer and the Nairobi Provincial Labour Officer. The ICFTU asserts that the presence of top civil servants at union meetings and under the circumstances described is tantamount to gross government interference of a very serious nature in trade union affairs.
7. 561. Furthermore, this minority group held bogus elections during that meeting to elect officers to replace the constitutionally elected leadership. This minority group was granted registration within a matter of hours after the bogus meeting which raises suspicions that the Government interfered with this decision as well in order to destabilize COTU-K's legitimate leadership. Moreover, the minority group led by Mr. Johnson Ogendo occupied the offices of COTU-K with the support of the police and thus forcefully displaced the legitimate leadership of COTU-K. At the same time, this minority group denied the legitimate leadership the facilities to carry out its trade union activities. The ICFTU points out that all these acts represent a government policy of actively participating in dividing workers.
8. 562. A further disturbing development according to the ICFTU is that on Saturday, 10 July, the leadership of the Commercial, Food and Allied Workers' Union, where Mr. Mugalla was Secretary-General, elected Mr. Daniel Ngirimari to replace Mr. Mugalla. The ICFTU alleges that this took place under government coercion since, out of 219 delegates constituting the total delegates' strength at COTU-K's NEC meetings, 163 have pledged support in writing to the legitimate COTU-K leadership led by Mr. Mugalla. Moreover, the Registrar of Trade Unions entered the change in the Register first thing on Monday, 12 July. However, in practice, and under normal circumstances, changes in the leadership of trade unions have to be filed with the Registrar who has one week to verify such information before entering them in the Register. On this occasion, the Registrar took only hours to enter the changes despite an objection lodged by Mr. Mugalla's lawyers.
9. 563. The ICFTU states that the independence of the judiciary has also been put to a severe test when, on 2 August 1993, Judge S.E.O. Bosire of the High Court rejected the application for an injunction to prevent the Ogendo group from assuming power at COTU-K. Mr. Mugalla's lawyers have described the ruling as most illogical. The judge contended that, since the Registrar had already entered the changes in the leadership in the Register, he could not act otherwise. The ICFTU argues that the judge disregarded provisions in the Trade Union Act governing the registration of changes in trade union leadership. It denounces the Government for tampering with the independence of the judiciary and states that Mr. Mugalla has lodged an appeal with the Appeal Court. It concludes by asserting that the independence of the trade union movement in Kenya has been placed under severe threat since the Government can instigate a minority group in a trade union to call an unconstitutional meeting, elect bogus leaders and have the Registrar enter the changes within hours in order to confer upon them legal recognition at the expense of the legitimate leadership. All these government actions constitute a clear violation of Conventions Nos. 87 and 98 and all internationally recognized labour standards and practices.

B. The Government's reply

1. 564. In its communication of 27 May 1993, the Government first of all strongly refutes the allegations raised by the OATUU concerning infringements of trade union rights in Kenya. It explains in general that in Kenya, freedom of association, including the right to organize freely and to engage in collective bargaining, is fully guaranteed by section 80 of the Constitution, as well as by the Trade Unions Act, the Trade Disputes Act and the Industrial Relations Charter of 1962. Moreover, recourse to strike action by any class of workers is allowed provided they have fully exhausted all the procedures laid down in the Trade Disputes Act. For example, there is the usual requirement of issuing 21 days' notice to the Minister for Labour for any group of workers intending to go on strike, and an additional seven days' notice in case of a strike in essential services. Furthermore, under section 30 of the Trade Disputes Act the Minister for Labour is empowered to declare any potential or actual strike illegal, if he is satisfied, inter alia, that such strike has objects other than or in addition to the furtherance of trade disputes within trades or industries.
2. 565. Turning to the allegations concerning the events that took place from 1 May 1993 onwards, the Government replies that COTU-K under Mr. J.J. Mugalla used this occasion to call on the country's workers to go on a general strike from 3 May, unless the Government announced an immediate 100 per cent general wage increase, and the sacking of the Vice-President of the Republic of Kenya (who is also the Minister for Planning and National Development). In his Labour Day Address, Mr. Mugalla told the Labour Day crowd that the two demands were inseparable and non-negotiable.
3. 566. The Government points out that the appointment of the country's Vice-President is the sole prerogative of the President. Secondly, there are machineries laid down by law for securing any wage increases - either through voluntary negotiations in the organized sector or through minimum wage fixing machinery in the unorganized sector. Finally, strikes can only be called after the negotiation machinery provided for by law (including the issuing of the statutory strike notices) has been exhausted. Although Mr. Mugalla was well aware of the above statutory requirements, he openly incited Kenyan workers to participate in a strike (and also to necklace with burning tyres anybody who would dare defy the said strike) with effect from Monday, 3 May, unless the two above demands were met by the Government.
4. 567. The Government explains that the Minister for Labour had already declared this strike to be illegal, since it was public knowledge that it was a political strike that had nothing to do with industrial disputes. Rather, this strike was designed to force employers and employees to participate in it in order to cause fear among the workers, inflict hardship on ordinary Kenyans and expose property to the danger of destruction.
5. 568. This national strike which took place as a result of Mr. Mugalla's appeal, adversely affected the entire Kenyan economy and, in particular, paralyzed the banking and transport sectors and several other commercial enterprises. This strike also led to incidents resulting in the destruction of property, injury to persons and a general crisis in the production sector.
6. 569. As a result, Mr. Mugalla was arrested on 1 May and was formally charged in a court of law on 3 May for inciting workers to go on an illegal strike, leading to disobedience of law. He was later released, as were his two close associates who were arrested as well. Seventy-eight other people were also charged on 4 May over strike violence, i.e. for destroying property and injuring people through stone throwing, burning cars, etc.
7. 570. The Government stresses that in a Press Release, issued by the Minister for Labour on 2 May, it had made it clear that it understood the problems of the workers resulting from the severe economic conditions prevailing in the country. The statement also reassured the workers that the Government was committed to lifting the living standards of workers through a package which was to be negotiated by the social partners. Although the Government had opened its doors for negotiations, COTU-K decided to take the stand it did. The Government submits however that since then the situation has returned to normal, since most workers had defied the COTU-K strike call and gone back on duty. Several other trade union leaders had also helped by appealing to their members to defy the strike, for example, in the Union of Post and Telecommunication Employees, Dock Workers' Union and Electrical Workers' Union. Other sectors which defied the strike call included all teachers, civil servants and agricultural sector workers.
8. 571. The Government concludes by stating that it will continue to fully respect the due exercise of trade union rights and promote constructive dialogue between the social partners in Kenya and especially on matters that affect the welfare of Kenyan workers. However, it will not tolerate any action by anybody which may jeopardize peace and stability in Kenya.

C. The Committee's conclusions

1. 572. The Committee notes that the allegations in this case refer to the arrest and detention of senior trade union leaders of the Central Organization of Trade Unions of Kenya (COTU-K), in particular Mr. J.J. Mugalla, General Secretary of COTU-K, following COTU-K's call for a national strike during a COTU-K rally organized on 1 May 1993. The allegations also refer to serious acts of government interference in COTU-K's internal affairs which have jeopardized the independence of the trade union movement in Kenya. The Government, for its part, contends that the general strike called by COTU-K, under Mr. Mugalla, was illegal because it was political and had nothing to do with industrial disputes.
2. 573. The Committee notes with serious concern that Mr. J. Mugalla and three other COTU-K trade union officials were arrested and detained for having called a general strike which had the intended goal of obtaining a salary increase for Kenyan workers. In this respect, the Committee would remind the Government that the arrest and detention - even if only briefly - of trade union leaders and members for activities connected with the exercise of their legitimate trade union activities constitute a violation of the principles of freedom of association (Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, paras. 87 and 88). It therefore urges the Government to refrain in future from having recourse to such action.
3. 574. The Committee notes that, according to the Government, the strike launched by the COTU-K was of a political nature since it requested, among others, the sacking of the Vice-President of the Republic. Purely political strikes are not covered by the freedom of association principles. In this case, the Committee must however note that a substantial part of the COTU-K claims were of a social and economic nature. The Government does acknowledge that, by indicating that the COTU-K had called upon workers to launch a general strike, unless the Government would announce, among others, a general and immediate 100 per cent salary increment. Therefore, the Committee must draw the Government's attention to the principle that trade union organizations should be able to have recourse to protest strikes, in particular with a view to criticise the social and economic policy of the Government (General Survey of the Committee of Experts, Freedom of Association and Collective Bargaining, 1983, para. 216). Accordingly, the right to strike should not be limited solely to industrial disputes that are likely to be resolved through the signing of a collective agreement; workers and their organizations should be able to express in a broader context, if necessary, their dissatisfaction as regards economic and social matters affecting their members' interests (Digest, op. cit., paras. 372 and 388). At the same time, noting the Government's statement that the strike resulted in incidents leading to the destruction of property and injury to persons, the Committee would draw the complainants' attention to the principle that workers and their organizations shall respect the law of the land, which should not violate the principles of freedom of association.
4. 575. The Committee observes that although Mr. Mugalla has been released, he has been charged in a court of law with inciting workers to go on an illegal strike leading to disobedience of law. It requests the Government to keep it informed of the outcome of the legal proceedings which have been instituted against Mr. Mugalla.
5. 576. The Committee notes that the Government has not yet furnished its observations on the remaining allegations of serious acts of government interference in COTU-K's internal affairs, namely police occupation of the headquarters of COTU-K on 2 July 1993 in order to prevent COTU-K from holding its National Executive Council (NEC) meeting; active government support to a minority group from COTU-K in holding an unconstitutional meeting at the Kenyatta International Conference Centre with the participation of the Permanent Secretary of the Ministry of Labour, the Chief Industrial Officer and the Nairobi Provincial Labour Officer at that meeting; the election of officers by the minority group during that meeting to replace the legitimate COTU-K leadership and the registration of this minority group within a matter of hours after the meeting; the occupation of COTU-K offices by the minority group with the support of the police; and the removal of Mr. Mugalla from the position of Secretary-General of the Commercial, Food and Allied Workers' Union at the Government's instigation and the entry by the Registrar of this leadership change in the Register without having regard to the relevant provisions in the Trade Union Act governing the registration of such changes. The Committee requests the Government to reply to these allegations without delay.