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Saturday, September 21, 2013

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 13th January 1964

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

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

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

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

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

·        ILO CON. 182 – Worst forms of child labour ratified on 7th 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 12th 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.

[1] Chapter 8 Laws of Kenya



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