Oak Fellowship at Colby College

APPLY NOW — FALL 2014 OAK FELLOWSHIP – FOCUS ON GENDER AND HUMAN RIGHTS

The Oak Institute for the Study of International Human Rights is conducting its search for the Fall 2014 Oak Human Rights Fellow.

The Oak Institute is looking for activists focused on the theme of gender and human rights, which may have to do with women but may also involve men (and masculinity) and sexual minorities. We invite nominations particularly from those working on sexual and reproductive rights, gender empowerment and education, human and sexual trafficking, activism against gender-based violence, gender- and sexual-based asylum, or gender and environmental rights.

For more information on the 2014 Oak Fellowship please view our Brochure.

About the Oak Fellowship

Each year, the Oak Institute brings an Oak Human Rights Fellow to teach and conduct research while residing at the College. The Institute organizes lectures and other events centered around the fellow’s area of expertise. The purpose of the fellowship is to offer an opportunity for prominent practitioners in international human rights to take a sabbatical leave from their work and spend as long as a semester as a scholar-in-residence at the College. This provides the Fellow time for reflection, research, and writing.

While all human rights practitioners are eligible, we especially encourage applications from those who are currently or were recently involved in “on-the-ground” work at some level of personal risk. The Oak Fellow’s responsibilities include regular meetings with students either through formal classes or informal discussion groups and assistance in shaping a lecture series or symposium associated with the particular aspect of human rights of interest to the fellow. The fellow also is expected to participate in the intellectual life of the campus and enable our students to work or study with a professional in the human rights field.

The Fellow will receive a stipend and College fringe benefits, plus round-trip transportation from the fellow’s home site, private housing near campus, use of a car, and meals on campus. The Fellow will also receive research support, including office space, secretarial support, computer and library facilities, and a student assistant. The Fellowship is awarded for the fall semester (September through December) each year. Following the period of the award, the fellow is expected to return to her or his human rights work.

If you wish to be contacted each year when we begin our annual search process, please join our electronic mailing list at: www.colby.edu/academics_cs/goldfarb/oak/mail.cfm or email the Oak Institute at: oakhr@colby.edu

 

Source of Labour Law in Kenya.

By Kate Kiama

Granted, labour law in Kenya does not take the form of a comprehensive labour code; rather it is in fact derived from a multiplicity of sources, both legal and extra-legal which in some instances interact in complex ways. The below discussion will identify and discuss the formal and voluntary sources of labour law in Kenya.

                     Labour law in Kenya is based on a number of legal rules. This will be discussed consecutively below.

        i.            Constitution. The Constitution is the grund norm and as such is the most supreme law of the land. This is further buttressed by Article 2 (1) of the same. The Constitution also makes specific provisions on labour relations in Article 41 and 43 (1). The upshot of these provisos being that everyone has a right to fair labour practices and that the state will ensure that a person’s economic and social rights will be realized progressively. Article 25 as read with Articles 28 and 30 (1) ; (2) affirm that a person has the right to human  dignity and will not be forced into labour, slavery or servitude. This right is enshrined as a non-derogatable right. Further Article 27 (3) of the Constitution mandates employers to treat their employees in an equal and non-discriminatory manner. Constitutional provisions are also made in relation to forming associations, the right to assembly, demonstrating, picketing and petitions in Articles 36 and 37 respectively. Article 232 as read with Chapter 6 on leadership and integrity provides thresholds that public servants must attain before holding public office. The Constitution also establishes the Industrial Court pursuant to Article 162 (2) and various commission that directly or indirectly affect labour law issues in Kenya.

     ii.            Acts of Kenyan Parliament. Core labour legislation on social security matters include the following;

·        National Social Security Fund Act, Chapter 258

·        National Hospital Insurance Fund Act, Chapter 255

·        Industrial Training Act, Chapter 237 (Revised 2011)

·        Retirement Benefits Act 1997 amended Retirement Benefits (Amendment) Act 1998

Major reforms were embarked on in 2007 with the enactment of five other legislations on labour law to supplement the sector. These statutes include the following:

·        Employment Act,2007 (replaced Employment Act, Cap 226 and Regulation of Wages and Conditions of Employment Act, Chapter 229)

·        Labour Institutions Act,2007 (replaced the Trade Unions Act, Chapter 233 and the Trade Disputes Act, Chapter 234)

·        Labour Relations Act,2007

·        Work Injury Benefits Act,2007 (replaced the Workmen’s Compensation Act, Chapter 236)

·        Occupational Safety and Health Act,2007 (replaced the Factories and Other Places of Work Act, Chapter 514)

   iii.            International Law. Under the previous constitutional regime, Kenya adhered to a dualist legal system and as such international treaties and obligations did not take immediate effect and required implementation through domestic legislation. The result was that as such the full implementation of a number of treaties providing protection in relation to labour law matters could only be realized once national legislation was passed. Pursuant to Articles 2 (5) and 2 (6) of the Constitution , it  appears that there has been a shift toward a partly monist system and as a consequence therefore international law does not need to be translated into national law and takes immediate effect upon ratification and signing of the same. Examples of ILO conventions  that are now part of the labour laws of Kenya include;

·        ILO CON. 29 – Forced labour ratified on 13^th January 1964

·        ILO CON. 98 – Freedom of Association and Collective Bargaining ratified on 13^th January 1964

·        ILO CON. 100 – Equal remuneration for work of equal value ratified on 7^th May  2001

·        ILO CON. 105 – Abolition of forced labour ratified on 13^th May 2001

·        ILO CON. 111 – Discrimination in employment ratified on 7^th May 2001

·        ILO CON. 138 – Minimum age of employment ratified on  9^th April 1979

·        ILO CON. 182 – Worst forms of child labour ratified on 7^th May 2001

   iv.            Judicial Precedent.  Also referred to as case law or judge-made law; means the decisions of judges as they lay down legal principles for future cases coming before them. The Kenyan legal system is based on the doctrine of precedent and as such superior courts decisions are binding on subordinate courts. Both common law and equity have developed through the doctrine of judicial precedents and stare decisis, which means that in trying and deciding a case, a judge, must look back to see how the previous judges have dealt with the case involving similar facts.  A judicial precedent contains two parts:

·        Ratio decidendi.

·        Obiter dictum.

The ratio decidendi is the rule acted on by the court in coming to the decision in a particular case. This is the binding decision. The rest of the judgment, which includes explanations and other cases cited in judge’s argument form the obiter dicta and is generally not binding but can be persuasive in nature.

     v.            Common Law and Customs. This is a branch of the law of England which was developed by the ancient common law courts from customs usages and practice of the English people, in 1066 AD and is said to originate from the Norman King. The courts applied the people’s customs to resolve legal problems thereby giving the customs the effect of law. The courts of Exchequer, Kings Bench and Common pleas were critical in the devolvement of the common law. This is largely un-codified law and is limited to laws applicable in England on or before the reception date of 12^th August 1897.

   vi.            Legal Writing. The works of highly published authors form persuasive authority to the labour laws of Kenya.

                     The Sources of Law in Kenya are found in a hierarchical form in Section 3 (1) of the Judicature Act.[1].International law which is conspicuously missing from the list finds expression now in the Constitution which predominantly makes Kenya a hybrid of a partly dualist yet partly monist state.

                     In conclusion therefore, the formal and voluntary sources of labour law can be summarized as including the Constitution and Acts of Kenyan Parliaments in addition to International Laws which the Kenyan people agree to be bound by. Similarly, judicial precedent may also be regarded as a voluntary source of law due to the respect and mandate of the judicial arm of government. Customs and common law apply in so far as the inhabitants of Kenya and the prevailing situation allow.

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[1] Chapter 8 Laws of Kenya

The Law relating to Social Security in Kenya.

By Kate Kiama.

Social security can be defined as the basic system which gives benefits to different groups of people including but not limited to individuals, children, employed, and unemployed, retired or elderly individuals. The ILO defines Security[1] as the protection which society provides for its members through a series of public measures against the economic and social distress that otherwise would be caused by stoppage, or substantial reduction of earnings resulting from sickness, maternity, employment injury, unemployment, invalidity, old age and death including the provision of medical care and the provision of subsidies for families with children.

            This discussion is limited to the law relating to social security in Kenya. Social security is important for the well being of workers, their families and the entire community. It is a means of creating social cohesion, thereby helping to ensure social peace and social inclusion. It is an indispensable part of the government social policy and an important tool to alleviate poverty. It can through national solidarity and fair burden sharing, contribute to human dignity, equity and social justice. It is also important for political inclusion, empowerment and the development of democracy.

Kenya has several types of schemes which offer social security which can be divided into three broad categories:-

        i.            Public Schemes - These are established by Acts of Parliament and include the;

• The NSSF Fund[2]

• The NHIF Fund[3]

• The Civil Servants Pension Fund[4]

• The Local Authorities Pension Trust

• The Public Universities Superannuation Pension Fund

• The Workmen’s Compensation Fund

• The Widows & Orphans Compensation Fund

• The Parliamentary Pensions Fund

The NSSF fund was established in 1965 after the enactment of the NSSF Act Cap 258.Prior to 1987 the fund operated under the Minister of Labour as a department under the Ministry. The Act was amended in 1987 and its effect was to make the fund a parastatal with its own management under a board of trustees. The scheme is a compulsory and mandatory scheme for all Kenyan’s in formal employment. There is a current Bill in Parliament aimed at amending the qualification of membership to the NSSF by import of the Federation of Kenyan Employers and COTU.

The NHIF fund was a department under the Ministry of Health from 1966-1998.The Fund as with the NSSF was converted into a state corporation and is aimed at improving the efficiency and effectiveness of medical insurance. The core mandate is to declare insurance on members and their immediate dependants. As with the NSSF fund, it is mandatory to all persons in formal employment and is also open to anyone above the age of majority.

The Pension Fund was established under the Pension Act Cap 189 Laws of Kenya and is a departmental office under the Ministry of Finance. It applies to public officers and civil servants. Section 17 of the Pension Act provides for the payment of pension benefits to dependants on the death of the public officer or civil servant. 

     ii.            Occupational Schemes- are run by employers for their employees and are underwritten by private insurance companies.

   iii.             Individual Schemes –are private schemes designed for the employed, self-employed and/ or for those in non-personable employment.

The public schemes, occupational and individual schemes cover workers mainly in the formal sector. They form the first pillar where membership is not optional but compulsory. The Occupational schemes form the second pillar where membership is either voluntary or mandatory and are privately managed. The voluntary schemes form the third pillar where membership is voluntary. It is important to note that the Retirement Benefits Authority (RBA) is the regulator and supervisor of private pension schemes in Kenya.

The Constitution pursuant to Article 43 (3) enshrines the concept of social security. The area is in dire need of reform and might benefit significantly by adopting a single broad Act with a single regulator to manage the area better.[5]

 

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[1] ILO resolution on social security, Geneva 2001

[2] Established by the National Social Security Fund Act Cap 258

[3] Established by the National Health Insurance Fund No 9 of 1998

[4] Established by the Pension Act Cap 189

[5] Best Practices should be adopted by the South African Social Security Agency Act, a comprehensive act on social security in South Africa.

Law relating to strikes and lock-outs.

By Kate Kiama

A strike is defined as the cessation of work or a concerted refusal to work by employees acting in combination for purposes of compelling their employer or an employer’s organization to accede to any demand in respect of a trade dispute.

                     A lock-out is defined on the other hand as the closing of a place of employment, or the suspension of work, or the refusal by an employer to continue to employ any number of employees for the purpose of compelling those employees to accept any demand in respect of a trade dispute. It is important to note that the purpose of a lock-out is not intended to finally terminate employment.

                     The discussion below will attempt to address the Kenyan situation using national and international provisions relating to strikes as a fundamental right of the employees.

            Pursuant to Article 41 (1) and 41 (2) (a)-(d) of the Constitution, every person has the right to fair labour practices, the right to fair remuneration, reasonable working conditions, to join a trade union as well as  the right to go on strike. The Labour Relations Act 2007[1] recognizes two types of strikes under Sections 76 and 78. Section 76 of the LRA 2007 defines a protected strike as a lawful strike which follows the laid out procedure pursuant to the Act. For a strike to qualify as a protected one, three conditions must be met. Firstly, the dispute must be about the terms and conditions of employment or the recognition of a Trade Union[2]. Secondly, the dispute must be referred to conciliation. Parties are free to appeal on the conciliators decision if not satisfied. The court in TSC v. KUPPET & Anor 2013[3] held that the purported teachers strike that paralyzed the education sector earlier this year was not a lawful strike because  the conciliation process had never begun in earnest,  and consequently the parties were ordered to  resume the conciliation process before legally joining a strike. Thirdly, the act mandates employees to give their employer and the relevant cabinet secretary a minimum of seven day notice prior to the commencement of the strike.

If an employee participates in a protected strike, they will not be in breach of contract[4] and therefore an employer cannot dismiss an employee or take disciplinary action against an employee who takes part in a protected strike. It is however prudent to point out that an employer is nevertheless not under any obligation to remunerate the employee for services that the employee did not provide during the duration of the strike pursuant to Section 79 (6) of the Labour Relation Act 2007. In the previously discussed case of TSC v. KUPPET & Anor 2013[5], the government’s decision to pay the striking teachers was a political decision. In contrast the Employment Appeal Tribunal in the decision of Sunderland Polytechnic v Evans 1993[6] held that deductions of an employee’s wages based on an industrial action are lawful deductions.

A prohibited strike as provided for under Section 78 LRA 2007 is essentially an illegal strike which ignores all the laid down procedure yet the employees withdraw their labour. They are often referred to as wild-cat strikes. An employee who takes part, incites or instigates others to take part in an unlawful or prohibited strike is liable for breach of their contract of employment.[7] The employee will be subject to disciplinary action and is not entitled to any payment or benefit under the Employment Act 2007 during the period in which the employee participates in the strike. The European Court in Demir and Baykara v Turkey[8] making reference to the conventions of the ILO and the European Social Charter held that the right to strike is a protected right but must be conducted in accordance with  certain laid down procedures.

Section 81 of the Labour Relations Act 2007 as read with Article 24 (5) (c) (d) of the Constitution prohibits the right to strike for employees in the essential services industry including persons in the Kenya Defence Forces or the National Police Service.

It may be surprising to find that the right to strike is not set out explicitly in ILO Conventions and Recommendations.[9]

Two resolutions of the International Labour Conference provide guidelines for ILO policy on the recognition of the right to strike in member States. These include the Resolution concerning the Abolition of Anti-Trade Union Legislation[10] in the member states of the International Labour Organization, adopted in 1957 which called for the adoption of ‘laws …ensuring the effective and unrestricted exercise of trade union rights, including the right to strike, by the workers’.[11]

Similarly, the Resolution concerning Trade Union Rights and Their Relation to Civil Liberties,[12] adopted in 1970, invited the Governing Body to instruct the Director-General to take action in a number of ways ‘with a view to considering further action to ensure full and universal respect for trade union rights in their broadest sense’, with particular attention to be paid, inter alia, to the ‘right to strike ‘.[13]

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[1] Hereafter referred to as LRA 2007

[2] The matter must be one able to qualify as being a trade dispute pursuant to Section 2 LRA 2007.

[3] Petition No. 22/2013 eKLR 2013

[4] Section 79 (5 ) LRA 2007

[5] Petition No. 22/2013 eKLR 2013

[6] IRLR 196

[7] Section 80 LRA 2007

[8] Application No 34503/97, 12 November 2008

[9] see Hodges-Aeberhard and Odero, 1987, pp. 543 and 545

[10] The Abolition of Forced Labour Convention, 1957 (No. 105), prohibits the use of forced or compulsory labour “as a punishment for having participated in strikes” (Article 1, subparagraph (d);

[11] ILO, 1957, p. 783

[12] the Voluntary Conciliation and Arbitration Recommendation, 1951 (No. 92),

[13] ILO, 1970, pp. 735-736

 

Sex Discrimination in the work place;

By Kate Kiama

Discrimination is defined in the Oxford Dictionary[1] as ‘the unjust or prejudicial treatment of different categories of people, especially on the grounds of race/colour, age, sex, disability, equal pay/compensation, genetic information, national origin, pregnancy, and religion.’ Discrimination in the labour law context can therefore be defined as the less favorable treatment of a person or a group of persons because of characteristics that are not relevant to the matter at hand. Protection against discrimination in the workplace is consequently a fundamental principle of labour law.

It is prudent to note that historically, the common law principle of freedom of contract applied equally to employment contracts and, as such, at common law an employer could reasonably employ or refuse to employ anyone for whatever reason including reasons of race, age, sex, gender et cetera of that person. Such a provision offended most people’s sense of fairness and equality and as a result the law sought to intervene to restrict an employer from exercising his common law right.

                     Pursuant to Article 2 (1) of the Constitution of Kenya[2], the Constitution is enshrined as the supreme law of the land and is binding on all persons including state organs. Further, Article 27 (1) (3) (4) (5) are to the effect that every person is equal before the law and has the right to equal protection and benefit from the law, and that all persons must enjoy the right to equality and freedom from any form of discrimination.

                     The Employment Act 2007[3] makes sex discrimination unlawful in employment, training, and related matters. There are three kinds of discrimination on the ground of sex pursuant to Section 5 (3) of the Employment Act:

        i.            Direct discrimination

     ii.            Indirect discrimination

   iii.            Victimization

                     A simple example of direct discrimination would be the refusal of a female employee to go on maternity leave. In Jane Wairimu Macharia v Mugo Waweru and Associates 2012[4] the court found that the employer’s conduct was discriminatory under Section 46 of the Employment Act 2007.In addition, the court affirmed that every female employee has a right to a three-month maternity leave besides the annual leave enjoyed by all other employees. Failure of an employer to comply with this statutory period amounts to a direct discrimination against female employees. Section 29 of the Employment Act 2007 provides that a female employee is entitled to maternity leave on full pay provided she gives her employer at least seven day notice. Section 5 (3) of the Act similarly provides that no employer may discriminate either directly or indirectly against an employee or prospective employee on the grounds of pregnancy.

In Sidhu v Aero space Composite Technology Ltd 2000[5],the Court of Appeal in England stated that to find direct discrimination  the complainant must show that he has been treated less favorably  than a person who does not possess his protected characteristics[6] and that the reason for the differential treatment is the complainant’s protected characteristic. One act is sufficient and as a general rule the motive behind the action is irrelevant; there is no defence once a claim for direct discrimination has been proved unless there is an occupational requirement or exception that applies. Denning MR in the famous (or infamous) case of Peake v Automotive Products 1978[7]  held that trivial differences in treatment are not discriminatory. In this case Mr. Peake claimed direct discrimination on the basis that the women in his factory were allowed to leave five minutes earlier than the men at the close of business.[8]The Court of Appeal dismissed the claim and found no form of discrimination.

                     The second type of discrimination recognized by legislation is discrimination against a particular group which shares a protected characteristic, and which prejudices the complainant hence the title ‘indirect discrimination.’ For indirect discrimination to be actionable, the following four conditions must be satisfied:

        i.            The employer applies a provision, criterion or practice which he applies or would apply equally  to persons with whom the claimant does not share the protected characteristics;

     ii.            The act puts, or would put, persons with whom the claimant shares the characteristic at a particular disadvantage when compared to other persons who do not share it;

   iii.            Consequently results in the claimant’s detriment.

   iv.            The employer cannot show a proportionate means of achieving a legitimate aim.

                     The persuasive authority of Price v Civil Service Commission 1978[9] held that it was indirectly discriminatory to require candidates for promotion to executive officer to be age between 17 ½ and 28 years old, because many women between those ages would have been temporarily out of the labour market having children and therefore they would have been locked out due to failure to have the necessary experience. Consequently, a considerably smaller portion of women than men could meet this condition, so it was deemed correctly to amount to indirect discrimination.

                     Similarly in British Airways Plc v Starmer 2005[10], British Airways were held liable for indirect discrimination against their female pilot by denying her the right to work 50 per cent of a full-time contract after returning from maternity leave. The Employment Tribunal found for the claimant holding that British Airways has failed to provide sufficiently objective justification for its provision, criterion or practice.

                     Victimization is the act of subjecting a person to a detriment because they have done a protected act. A protected act includes;

·        Bringing proceedings under the Employment Act 2007

·        Giving evidence or information in connection with proceedings under the Act

·        Doing any other thing for the purpose of, or in connection with the Act,

·        Making an allegation (whether express or not) that the employer or another person has contravened the Act, usually to a labour officer.

                     The applicant in London Borough v Lamberth v D’Souza 1999[11] had brought several successful race discrimination claims against his employer. He alleged further discrimination and was subsequently dismissed by his employer for reason of being a trouble maker. The House of Lords upheld his claim for victimization.

                     Genuine occupational qualifications seem to provide the only defence against direct sex discrimination (but not victimization) and may apply in the following situations:

a.      Where the essential nature of the job requires it as in the case of actors and models

b.      For reasons of decency or privacy as in ladies or gents lavatories

c.      In domestic services requiring close personal contact and in single-sex prisons and hospitals

d.     If living accommodation is provided for one sex only.

               The above rules were applied successfully in Sisley v Britannia Systems 1983[12] where a man applied for a job in a security control station which employed women only. The women worked 12 hour shifts with rest periods during which they undressed to lay down on the beds provided. The Employment Appeals Tribunal held that it was reasonable in the circumstances given to refuse to employ a man for reasons of decency. A claim of indirect discrimination will be defeated if the employer can show that the provision, criterion or practice was justified irrespective of the sex of the worker.

               Where an individual presents a complaint of discrimination to a labour officer or the Industrial Court[13], a conciliator will attempt to conciliate. If this fails, the Court has three main remedies that it may award to the complainant:

                    i.            An order declaring the complainant’s rights

                 ii.            Financial compensation

               iii.            A recommendation of action to be taken by the Respondent-Employer to reduce the adverse effects of the discrimination.

            The original impetus to bring in legislation in this area of law came from international law. The Universal Declaration of Human Rights[14] states that everyone is entitled to all rights and freedoms without ‘discrimination of any kind’. Such statements are reiterated by the International Labour Organization’s Conventions.[15]Without a doubt now, the most important influence on national law has been Article 2 (5) and 2 (6) of the Constitution whose import is that international laws an treaties ratified by Kenya are a source of law in Kenya. Kenya has adopted a number of key International Labour Organization[16] Conventions governing discrimination in employment, including, the Equal Remuneration Convention, 1951 (C100) and the Discrimination (Employment and Occupation) Convention, 1958 (C111).Other legislation that curb discrimination include the Sexual Offences Act[17], African Union Treaties including; the African Charter on Human and Peoples’ Rights (ACHPR, Banjul, 1981) the Protocol on the Rights of Women in Africa (2005) others also include the Convention on the Elimination of All Forms of Discrimination Against Women 1979.

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[1] Oxford English Dictionary: Oxford University Press, 8th Edition.

[2] Promulgated on August 27^th 2010.

[3] Cap 226 Laws of Kenya 2007

[4] 621/2012 eKLR

[5] IRLR 602

[6] Include age, sex, disability , race, colour etc

[7] QB 233

[8] The Court of Appeal found that there was no discrimination on three grounds: firstly, the rules for safety and good administration could not be discriminatory; secondly, it would be wrong for statute to obliterate the chivalry and courtesy expected from mankind to womankind; thirdly, the de minimis principle.

[9] IRLR 3

[10] IRLR 863

[11] IRLR 240

[12] IRLR 404

[13] Pursuant to Article 162 (2) of the Constitution 2010

[14] 1948

[15] 1958 and 1980

[16] ILO

[17] Section 23 and 24 SOA 2006