Constitutional right to strike begins to bite

By Pravin Bowry

The recently ended doctors’ strike, call by the Central Organisation of Trade Unions for a 10-day national strike during the festive season to protest the high cost of fuel and 70,000 civil servants scheduled to go on strike in January to demand representation in the Salaries and Remuneration Commission are all distinct signals that the Kenyan Constitution is beginning to bite.

Article 40 of the Constitution deals with labour relations and expressly gives an employee the right to go on strike, amongst other privileges, such as right to fair remuneration, reasonable working conditions and to join a trade union.

Since Independence, labour matters had been relegated to insignificance with some Kenyans earning less than two dollars per day.

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The employees right to strike had not only been curtailed by law but was most arbitrary with the Minister of Labour having the singular right to declare any proposed strike "illegal" thereby exposing the organisers of the strike and participants to dire consequences, which were often invoked ruthlessly to the detriment of the employee.

The former Industrial Court never formally declared or ruled on the matter whether the right to strike was the birth right of a citizen, but generally was an instrument of thwarting the striking population.

In many cases various sections of criminal law were used to subdue the trade unions and their leaders.

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The expression "strike" refers to an organised cessation or slowdown of work by employees to compel the employer to meet the employees’ demands.

Strikes amount to a concerted refusal by employees to work for their employer or to work at the customary rate of speed until the employer grants the concessions being demanded.

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Strikes can take different forms. There is the "cacanny strikes" where the workers remain on the job but work at a slower pace to reduce their output, wildcat strikes, jurisdictional strikes, quickie strikes and recognitional strikes depending on the disputes.

Pharaoh Ramses III

The strike tactic has a very long history. Towards the end of 20th dynasty under Pharaoh Ramses III in ancient Egypt in 1152 BC the artisans of the Royal Necropolis organised the first known workers’ uprising in recorded history giving Africa the distinction of introducing the concept of strikes!

By 1768 English sailors had learnt the art by removing sails of merchant ships at port thus crippling the ships and Mexico was the first country to give its citizens the right to strike, as long ago as 1917, through their Constitution.

The 1967 International Covenant on Economic Social and Cultural Rights had ensured the right to strike but was hardly acknowledged in Kenya until enactment of the new Constitution.

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Legal prohibitions on strikes historically was made an ideological issue with, for example, the People’s Republic of China and former Soviet Union viewing the right as counter–revolutionary.

The new found and clearly spelt out right is undoubtedly likely to mould the economic future of the country, and most employers will have to gear to accepting that exploitation of the labour market is now going to be impossible.

In the last few months the labour rights of domestic workers are shaping up by the governmental bodies insisting on them being brought on the formal payroll and paying their NSSF, NHIF and other dues.

Demands of minimum wages to be increased to Sh17,000 per month have been made in the Parliament.

The doctors’ strike is even more illustrative. It indicates that the profession is underpaid and exploited and ironically those serving the country in Government hospitals are at a distinct disadvantage compared to their private sector brothers and sisters.

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It is anticipated that the law on strikes will inevitably address the issues of brain drain from our country. It is sad to note that doctors, nurses and teachers, amongst other professionals, trained by the taxpayer in Kenya, are opting to work in other countries where remuneration is in some cases five-fold to what is being paid locally.

The future development of law on strikes and employer/employee relations generally will be influenced by the Industrial Court Act, Act 20 of 2011, which become law on August 30, 2011 and set up the new Industrial Court under Article 162 (2)a of the Constitution.

Voice of fairness

The court has exclusive original and appellate jurisdiction to hear and determine all disputes and issues between employer/employee, trade unions and registration and enforcement of collective bargaining agreements.

The new Industrial Court can make interim preservative orders, give prohibitory orders, or declaratory orders, award compensation and damages and order for reinstatement of any employee within three years of dismissal (effectively changing the common law which did not allow the remedy of specific performance to an employee).

It is gratifying to appreciate that the workers are beginning to exploit the voice of fairness by enforcing their constitutional right to strike.

On the other side of the coin, will this right be over-exploited and lead to economic chaos without interests of the employers being taken into consideration?

-The writer is a lawyer.

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