Time ripe for a tribunal to address strikes

What you need to know:

  • There is need to explore the possibility of creating a Labour Tribunal to handle matters growing out of industrial disputes.
  • Such a tribunal should exercise quasi-judicial powers and its decisions should be final and be ring-fenced from adversarial litigations.

  • The recently proposed amendments to the Labour Act, 2007 should ensure that a mechanism is put in place to create such a tribunal.

The history of trade unionism in this country is characterised by threats for industrial action. Education and health sectors epitomise this trait. Contrary to the norm, unions’ action is a classic case of the tail wagging the dog.

Unsuspectingly, union leaders have implanted in our national psyche the notion that workers have a right to strike for whatever reason they choose, including teachers’ refusal to be appraised or attempting to cover up medical negligence at Kenyatta National Hospital. Armed with provisions of Article 41 of the Constitution and the protections provided in Section 5 of the Labour Relations Act of 2007, the narrative by union leaders has been accepted unquestioningly.

NOT ABSOLUTE

However, it is a misleading premise since the right to strike is not absolute. The key question is: Does an individual’s right to strike override other Kenyans’ right to enjoy or access certain services? Additionally, under what circumstances can such a right can be prohibited?

Answers to these questions are squarely found in the Constitution and existing statutes. Granted, under Article 41(1) of the Constitution every person has a right to fair labour practices including to form, join or participate in the activities and programmes of a trade union. However, Article 24(1) (d) provide circumstances under which limitations can be imposed to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others.

SUPREME LAW

The means adopted to enforce strikes often translate into coercion and compulsion. The effects of industrial actions on the public’s welfare are seldom highlighted.

The right to strike, therefore, must be weighed against the potential of far-reaching harm and derailment of government’s programmes and services to its citizens.

The Bill of Rights in Chapter 4 of the Constitution is part of the supreme law that guides the enjoyment of certain rights. Law, however, is but the expression of the supreme authority of the State and obedience to such authority is every Kenyan’s first duty. A threat by Knut to disrupt end-year final examinations through the planned strike amounts to an attack on the safety and existence of the State.

CASE BASIS

The “Right to Strike” question has remained vexing since the industrial revolution. As early as 1910, the American labour relations scholar, Joseph, J. Feely, in his seminal paper The Right to Strike: Its Limitations, argued that the right of the State to assure its own safety and existence is the highest conceivable right. He noted that the right of members of a union who derive their income from the patronage of the government should be subordinate. The US judicial system largely borrows from this thinking on deciding matters of industrial disputes.

Although Kenyan courts have in the past resolved industrial disputes, their interpretation of the law on industrial disputes has largely been pegged on the merits and demerits of the case and the basis of the text of the law.

WRITTEN STATUTES

Courts are but the oracles of the public will and this should be reflected in their interpretation of the law. So they must not be guided only by reason of written statutes but also by those time-honoured principles of justice and equity which have received the sanction of ages. Our current court process is ill-equipped to effectively manage industrial relations disputes.

There is need to explore the possibility of creating a Labour Tribunal to handle matters growing out of industrial disputes through compulsory arbitration and settlement within specified timelines to safeguard public welfare.

LITIGATIONS

Such a tribunal should exercise quasi-judicial powers and its decisions should be final and be ring-fenced from adversarial litigations. The recently proposed amendments to the Labour Act, 2007 should not only be fast-tracked, but should ensure that a mechanism is put in place to create such a tribunal.

Dr Bagaka is a public administration and governance expert. Email [email protected]