Unions, FKE win in first round of NSSF case

Cotu boss Francis Atwoli on Monday won Round One of his court battle with Labour Cabinet Secretary Kazungu Kambi over workers’ representation in the National Social Security Fund (NSSF).

The Industrial Court temporarily halted Mr Kambi’s order retiring Mr Atwoli, the Cotu Secretary-General and Ms Jacqueline Mugo, the Federation of Kenya Employers Executive Director, from the NSSF board.
The two represent private sector workers and employers, the main contributors to the pension fund.

Earlier, before the court session, a group of trade union leaders had gone to Mr Kambi’s office in the nearby NSSF building to pile pressure on him to reverse the order he issued on Friday. However, they did not meet the Cabinet Secretary.

Trade unions have threatened a national strike from August 4, unless the order is reversed.

On Monday, Industrial Court Judge Monica Mbaru temporarily suspended the legal notice issued by Mr Kambi last week ejecting Mr Atwoli and Ms Mugo from the national pensioners’ board of trustees.

Her ruling allowed Mr Atwoli and Ms Mugo to continue representing workers and employers in the NSSF board pending the determination of the suit.

Mr Atwoli, through his lawyer, Ms Judy Guserwa, filed the application claiming that Mr Kambi’s decision to retire the Cotu boss was unlawful, unprocedural and a violation of the NSSF Act.

“The decision was tainted with malice, procedural impropriety and intended to square personal scores,” Ms Guserwa said. “Mr Atwoli has been on record opposing fraudulent dealings at the NSSF and the decision to remove him was only meant to punish him.”

She argued that Mr Atwoli was appointed by the workers’ union in April to serve in the board for an additional three years and that Mr Kambi has no power to replace him unless through the express decision of workers.

(EDITORIAL: Resolve looming crisis over NSSF leadership)

At the same time, activist Charles Omanga filed another petition at the High Court seeking to revoke Mr Kambi’s Kenya Gazette notice retiring Mr Atwoli and Ms Mugo from the NSSF board.

He argued that Mr Kambi had no authority to retire any nominee appointed to the board by unions since the new NSSF Act provides that existing members are deemed to have been appointed under the new Act for three more years.

“The NSSF board as currently constituted in the absence of representatives from Cotu and FKE can act against the interests or workers and employers. Mr Kambi had no authority to take over the roles of the two bodies and his decision was therefore null, void and unconstitutional,” Mr Omanga said.

Mr Justice Weldon Korir certified his application as urgent and directed him to serve Mr Kambi and the AG before the hearing on Wednesday.

'WITCH HUNT'

In the first case, Mr Atwoli supported his application with an affidavit stating that Mr Kambi’s decision was a witch hunt due to his stand on plans to misuse workers’ money.

“Ever since Mr Kambi took over the Labour ministry, he embarked on a warpath with me without any provocation since I brought to light the intention to loot workers’ funds. He has even made unfounded reports to the KRA and the CID over our affairs without any basis,” he said.

He argued that if the NSSF Board of Trustees goes ahead to convene a meeting and transact business without their involvement, there is possibility that the workers’ contributions will be misused.

The Cotu boss maintained that he was duly elected by the union to sit on the NSSF board and can only retire in April 2017 after the expiry of his three-year term.

“We even obtained a court order in April directing Mr Kambi to effect the appointment and gazette a second nominee of Cotu, but he ignored and moved to the Court of Appeal to suspend the order so that he denies us a second representative,” he swore.

Lady Justice Mbaru scheduled the hearing of the application for July 25.