Informe definitivo - Informe núm. 4, 1953

A. A. The complainants' allegations

• Analysis of the Complaint
  127. 127 The complaint contains the following three series of allegations:
       • (a) Trade union rights have been suppressed. Permission to form a trade union federation has been denied. The East African Trade Union Congress was established in May 1949 and its application for registration was refused in September 1949.
       • (b) On 15 May 1950 the T.U.C offices in Nairobi were raided by the police. The president and general secretary were arrested on charges of being officers of a trade union which had been refused registration. They were fined 110 shillings each. The general secretary, Makhar Singh, although acquitted by the Supreme Court, in July 1950, on perjury charges, served eight weeks of a three months' sentence. He was rearrested under a Restriction Order and banished to a remote village.
       • (c) A general strike was threatened in sympathy with the president and general secretary of the East African Trade Union Congress. Some 6,000 African workers in Nairobi came out on strike. The strikers also demanded a minimum monthly wage and " freedom for Africans throughout East Africa ". The Government declared all strikes in essential industries to be illegal. A protest meeting on 18 May 1950 was broken up by police in armoured cars using tear gas. In the next two weeks there were 300 arrests.
  128. Analysis of the Reply and Supplementary Reply
  128. 128 Regarding the first allegation, the Government stated, in its original reply, that trade union rights are guaranteed by law, which also requires trade unions to register. Among other things, the law provides that, if the Registrar of Trade Unions is satisfied that a union applying for registration is an organisation consisting of persons engaged in more than one occupation and that its Constitution does not suitably provide for the protection and promotion of their respective sectional industrial interests, he may refuse registration and the organisation must then be dissolved within three months. The East African T.U.C was an attempt to subordinate six separate unions to a central executive and the Registrar refused the application on the ground that the independence and sectional industrial interests of these unions would have been jeopardised. The East African T.U.C did not appeal to the Supreme Court against the Registrar's decision, as allowed under the law, and so after three months it became an illegal organisation. No action has been taken to restrict the lawful exercise of trade union rights by registered unions, including those connected with the illegal East African T.U.C.
  129. 129 Regarding the second allegation, the Government states that the president and general secretary were, as alleged, fined for being officers of an organisation which had failed to dissolve itself in the prescribed three months after refusal of registration. Makhar Singh, the Indian general secretary of the East African T.U.C, was arrested under the Deportation (Immigrant British Subjects) Ordinance on the ground that he was an " undesirable person " as therein defined (i.e., conducting himself so as to be dangerous to peace, good order, good government or public morals or in a manner calculated to raise discontent or disaffection among subjects or inhabitants of the Colony or to promote feelings of ill-will and hostility between different classes of the population of the Colony). A judge of the Supreme Court heard the case and found the facts proved and the Governor in Council then made a Restriction Order under the Ordinance confining Makhar Singh to a certain township.
  130. 130 With regard to the third allegation, the Government states that some 6,000 out of an estimated labour force of 32,000 Africans in Nairobi came out on strike at various times. The strike lasted ten days and there was much intimidation and violence. The strike was not confined to essential services but some of these were affected. Under the Kenya Essential Services (Arbitration) Ordinance of February 1950, disputes in certain defined essential services must be reported to the Government. Strikes are not forbidden in essential services but no person may take part in a strike or lockout therein unless 21 days have elapsed from the dispute being reported to the Government and the latter has not in that time taken steps to secure a settlement through the established negotiating machinery of the service concerned or, in the last resort, through arbitration. No proceedings were taken against persons for participating in the strike and only one person was charged with inciting a strike in an essential service. One hundred and two persons were convicted of offences against public order. When law and order were threatened by large crowds, the police were obliged to use tear gas and batons but nobody was seriously injured.
  131. 131 At its second session, in March 1952, the Committee, with regard to the third allegation, reached the conclusions which are contained in paragraph 134 below, but deemed it necessary, before making its recommendations to the Governing Body, to request further information from the United Kingdom Government concerning the application of the arrangements for the registration of trade unions provided for in the legislation of Kenya in order to ascertain whether such arrangements have the effect of preventing the formation of a general Confederation of trade unions. The Director-General wrote accordingly, on 20 March 1952, to the United Kingdom Government, which forwarded the further information requested on 12 May 1952.
  132. 132 In its further reply the Government, referring to the question raised by the Committee, stated that the provisions concerning the registration of trade unions laid down in the legislation of Kenya are not intended to prevent the formation of a general Confederation of trade unions. The position is as follows. If there emerged in Kenya a Confederation which did not possess the function of settling with the employers concerned the wages, hours and working conditions of the members of its constituent unions, then such an organisation would not be a trade union as defined in the Kenya Ordinance, and it could exist and freely carry on its activities without any obligation to register. On the other hand, a Confederation would fall within the legal definition of a trade union, and be required to apply for registration, if its Constitution allowed it directly to participate in the determination of the terms and conditions of employment of the members of its constituent unions. The Registrar would not be bound to refuse registration on these grounds, but, in deciding whether to accept or reject such an application, he would have to take into account, inter alia, the provision of the law which allows him to refuse registration if he is satisfied that the organisation applying for registration is one consisting of persons engaged in, or working at, more than one trade or calling, and that its Constitution does not contain suitable provision for the protection and promotion of their respective sectional industrial interests.

B. B. The Committee's conclusions

1. 133. The Government of the United Kingdom has ratified in respect of Kenya the Right of Association (Non-Metropolitan Territories) Convention, 1947, which provides that the right of employers and employed alike to associate for all lawful purposes shall be guaranteed by appropriate measures and that employers and workers shall be encouraged to avoid disputes and, if they arise, to reach fair settlements by means of conciliation, and that machinery shall be created as rapidly as possible for the settlement of disputes between employers and workers.
   • Allegation relating to the Strike in Nairobi
2. 134. The Committee noted from the Government's reply that only partial and temporary restrictions are placed on the right to strike in essential services, designed to afford an opportunity to settle a dispute without undue hardship to the community, that apart from one case of incitement to strike in an essential service, persons were convicted only of offences against public order and that police action was limited to preserving public order. In view of the precise details given in the reply, including a full reference to the relevant provisions in the Kenya Essential Service (Arbitration) Ordinance, 1950, the Committee considers that the legal conditions attached to the right to strike in essential services and the convictions, not for taking part in a strike but for committing disorders, do not in the present case, constitute an infringement of freedom of association ; the Committee, therefore, recommends to the Governing Body that this part of the complaint does not call for further examination.
   • Allegation regarding the Refusal to Register the East African Trade Union Congress
3. 135. This allegation has to be considered in the light of the present stage reached in the development of trade unionism in Kenya. The Right of Association (Non-Metropolitan Territories) Convention, 1947, which was deliberately framed in general terms to correspond to actual conditions in most non-metropolitan territories, provides in broad and simple language that the rights of employers and employed alike to associate for all lawful purposes shall be guaranteed by appropriate measures. The question at issue is, therefore, whether the arrangements for registration provided for in the Kenya legislation are appropriate measures within the meaning of this provision. Whether they can be so regarded would appear to depend on the manner in which and purpose for which they are used ; if they are used solely to prevent political control of a trade union movement which has still not had an opportunity to develop its own traditions, the matter would not appear to call for any comment ; if they were to be used to prevent the formation of a general Confederation of trade unions, the question might assume a different aspect.
4. 136. It is clear from the Government's supplementary reply that the trade unions in Kenya can form a Confederation, subject to no legal requirements other than the implicit one that it shall be for lawful purposes, so long as it does not take part directly in the negotiation of wages and other conditions of employment. If it does so take part the Confederation must apply for and can be refused registration on the same grounds as operate in the case of a trade union. The position therefore would seem to be as follows. In a majority of countries trade unions are free to form Confederations in full freedom whether they intervene directly in collective bargaining or not, although in practice, in most but not all cases, those Confederations do not take any direct part in collective bargaining. In Kenya there appears to be full freedom to establish a general Confederation which may be similar to the kind established in practice in most countries, although there is not the right which organisations in most countries possess even if they do not exercise it to endow the Confederation with collective bargaining powers if they wish and at the same time to include within the Confederation constituent unions catering for dissimilar occupations and to surrender to the Confederation such authority over its constituent organisations as the latter think fit.
5. 137. Having regard to the present stage in the development of trade unionism in Kenya and to the fact that a Confederation can be formed in full freedom, the Committee considers that, while it would be desirable that the present arrangements concerning the registration of federations of trade unions in Kenya should be further reviewed by the Government, this part of the complaint does not call for further examination by the Governing Body in the present circumstances.
   • Allegations regarding Penalties imposed on Officers of the East African Trade Union Congress
6. 138. These allegations concern matters entirely consequential to the matters dealt with in the previous allegations.