Court clears way for police to form trade union

Police officers can now form a trade union. This follows a landmark ruling by Industrial Court Judge Onesmus Makau.

Mr Justice Makau declared that the Labour Relations Act, which barred police officers from forming or joining a trade union, was null and void to the extent that it was inconsistent with Articles 24 and 41 of the Constitution.

Article 24 of the Constitution states that “a right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors”.

According to the new Constitution, every person has the right to fair labour practices and every worker has the right to fair remuneration, reasonable working conditions, to form, join or participate in the activities and programmes of a trade union, and to go on strike.

The ruling clears the way for police officers to form a trade union to push for their rights.

Central Organisation of Trade Unions (Cotu) Secretary-General Francis Atwoli welcomed the ruling, saying that for the first time in the country’s history, police officers will have a vehicle through which they can fight for their rights.

“That is what we wanted. We wanted our police officers to have a union which they can use to push for a collective bargaining agreement with their employer and agitate for their rights. But we do not want them to go on strike because that will threaten the security of the country,” Mr Atwoli told the Nation.

In his ruling on Friday at the Industrial Court, Mombasa, Mr Justice Makau said police officers will not be allowed to call or participate in any strike pursuant to section 47 (3) of the National Police Service Act of 2011 (NPSA) or any other law.

He gave the Attorney-General four months to amend the statutory provisions and lay down a legislative framework to enforce the ruling.

The legislative framework, Mr Justice Makau directed, should strictly comply with Article 24 of the Constitution.

The ruling arose from an application filed by four retired police officers – Mr Nicky Njuguna, Mr Stephen Kyalo, Mr Stephen Karani and Mr Paul Gichuru – against the registrar of trade unions. Cotu was enjoined in the suit as an interested party.

The applicants, through their lawyer Wambugu Gitonga, had filed an appeal challenging the refusal by the registrar of trade unions to register the Kenya Police Union.

While the appeal was pending in court, all the laws related to it were repealed and replaced by the Labour Relations Act (2007), the Constitution and the NPSA of 2011.

The respondent did not file a reply to the application and did not attend the hearing of the matter.

In his submissions, Mr Gitonga said that the repealed Trade Unions Act Cap 233 did not bar police officers from enjoying the right and the ground for refusal to register the union was that the officers were catered for by another union.

He said the purpose of the police union is to articulate their interests at work. He also urged the court to look at the union from the point of view of benefits which may enhance public security when police collectively discuss matters with their employer.

The court has directed that the ruling in this matter be served upon the Inspector- General of Police and the Attorney-General within 10 days from Friday.

For necessary action.

For many years, the police and other disciplined forces have usually been excluded from joining trade unions in many countries across the world, a trend which is set to change with the judge’s ruling.
In Africa, only South Africa, Senegal, Malawi, Cote d’Ivoire, Lesotho, Niger, Swaziland, Tunisia and now Kenya have recognised the right of their uniformed men and women to form trade unions to agitate for their rights.

Other countries where police are members of trade unions include Australia, Austria, Belgium, Denmark, Finland, France, Germany, Iceland, Ireland, Luxembourg, Netherlands, New Zealand, Norway, Portugal, Spain, Sweden, UK and USA.

With the exception of Kenya and Uganda, the laws in the other East African countries prohibit uniformed officers from establishing trade unions or other representative bodies for the protection of staff interests.

In Burundi, Rwanda, and Tanzania the state police are in fact excluded from existing labour law legislation and as a result they do not have the same rights and freedoms as other workers in the public service.

The labour laws and the constitutions in Kenya and Uganda allow the police force and prisons to join or form trade unions, legislation which Justice Makau invoked to make the ruling. Uganda police are however yet to form a trade union to represent their interests.

Only last month, Inspector General of Police David Kimaiyo was accused of intimidating police officers who had applied for jobs as county police commanders.

The chairman of the National Police Service Commission (NPSC) Johnstone Kavuludi also accused Mr Kimaiyo of blocking reforms in the National Police Service.

“We understand that there are some messages that have been sent to police officers who were keen to apply for the positions of County Commanders and we understand that it is attributed to the Inspector General. No single member of the commission on his or her own can stop the recruitment of police officers for the county jobs,” Mr Kavuludi charged.

But in a rejoinder, acting police spokesman Masoud Mwinyi defended the Inspector General against the accusations, maintaining that Mr Kimaiyo fully supported reforms in the force.

Mr Mwinyi said no intimidation and threats have been issued to junior officers not to apply for the newly created position of county commanders.

He stated that the Inspector- General fully supported the recruitment of the county police commanders and urged aggrieved officers to raise their complains through the Independent Policing

Oversight Authority (IPOA) for action to be taken.