Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 292, Marzo 1994

1. 469. The Committee already examined the substance of this case at its November 1993 meeting when it presented an interim report to the Governing Body (see 291st Report, paras. 552-557, approved by the Governing Body at its 258th Session (November 1993)).
2. 470. The Government supplied further observations on the case in a communication dated 25 November 1993.
3. 471. Kenya has not ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87). It has, however, ratified the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 472. The complainants presented allegations of flagrant violations of human and trade union rights against the Government of Kenya. They alleged that the Government had arbitrarily arrested and detained trade union leaders of the Central Organization of Trade Unions of Kenya (COTU-K), including Mr. J.J. Mugalla, General Secretary of COTU-K and member of the Governing Body of the ILO, following a very successful COTU-K rally organized on 1 May 1993. During this rally, COTU-K leaders had criticized the Government for ignoring COTU-K's previous calls, among other things, to improve workers' conditions and to enter into immediate negotiations for a general wage adjustment in order to redress the purchasing power of the workers. Subsequently, there was a series of acts of government interference in COTU-K's internal affairs, namely police occupation of the headquarters of COTU-K on 2 July 1993 in order to prevent COTU-K from holding its National Executive Council (NEC) meeting; active government support to a minority group from COTU-K in holding an unconstitutional meeting at the Kenyatta International Conference Centre with the participation of three top civil servants at that meeting; the election of officers by the minority group during that meeting to replace the legitimate COTU-K leadership and the registration of this minority group within a matter of hours after the meeting; the occupation of COTU-K offices by the minority group with the support of the police; and the removal of Mr. Mugalla from the position of Secretary-General of the Commercial, Food and Allied Workers' Union at the Government's instigation.
2. 473. Referring to the events that took place from 1 May 1993 onwards, the Government indicated that COTU-K, under Mr. Mugalla, used this occasion to call on the country's workers to go on a general strike from 3 May, unless the Government announced an immediate 100 per cent general wage increase and the sacking of the Vice-President of the Republic of Kenya. The Minister for Labour had already declared this strike to be illegal, since it was public knowledge that it was a political strike that had nothing to do with industrial disputes. This national strike adversely affected the entire Kenyan economy and also led to incidents resulting in the destruction of property, injury to persons and a general crisis in the production sector. As a result, Mr. Mugalla was arrested on 1 May and formally charged in a court of law on 3 May for inciting workers to go on an illegal strike, leading to disobedience of law. He was later released, as were his two close associates who were arrested as well. Seventy-eight other people were also charged on 4 May over strike violence. Moreover, the Government had made it clear, through a press release issued on 2 May, that it was committed to lifting the living standards of workers through a package which was to be negotiated by the social partners. Although the Government had opened its doors for negotiations, COTU-K decided to take the stand it did. Since then, however, the situation had returned to normal, since most workers had defied the COTU-K strike call and gone back on duty.
3. 474. At its November 1993 Session, in the light of the Committee's interim conclusions, the Governing Body approved the following recommendations:
   • (a) The Committee recalls that the arrest and detention - even if only briefly - of trade union leaders and members for their legitimate trade union activities constitute a violation of the principles of freedom of association. It urges the Government to refrain in future from having recourse to such action.
   • (b) The Committee draws the Government's attention to the principle that trade union organizations ought to have the possibility of recourse to protest strikes, in particular where aimed at criticizing a government's economic and social policies. Thus, the right to strike should not be limited solely to industrial disputes that are likely to be resolved through the signing of a collective agreement and workers and their organizations should be able to express in a broader context, if necessary, their dissatisfaction as regards economic and social matters affecting their members' interests. However, the Committee recalls that purely political strikes are not covered by freedom of association principles.
   • (c) The Committee draws the complainants' attention to the principle that workers and their organizations shall respect the law of the land, which should not violate the principles of freedom of association.
   • (d) The Committee requests the Government to keep it informed of the outcome of the legal proceedings instituted against Mr. Mugalla.
   • (e) The Committee requests the Government to reply without delay to the remaining allegations of serious acts of government interference in COTU-K's internal affairs.

B. The Government's reply

1. 475. In its communication of 25 November 1993, the Government very strongly refutes the allegations raised by the ICFTU concerning government interference in the internal affairs of the Central Organization of Trade Unions of Kenya (COTU-K). It explains that the events which led to Mr. Mugalla's ouster by COTU-K's Governing Council on 2 July 1993 had originated in the 1993 May Day celebrations in Nairobi. It was on this occasion that Mr. Mugalla unilaterally decided (i.e. without the approval of the Governing Council representing COTU-K's various affiliated unions) to turn the occasion into a political event.
2. 476. Mr. Mugalla's call for an illegal and purely politically motivated strike had the effect of alienating several trade unions, some of whose members had lost their jobs as a result of Mr. Mugalla's illegal strike call. Some of these trade union officials also felt that Mr. Mugalla was misdirecting the labour movement for his own political gains. Therefore, many General Secretaries of unions affiliated to COTU-K became divided on whether Mr. Mugalla should lead them any more. As a matter of fact, Mr. Mugalla's group started the rift by physically throwing out of a meeting at the Ministry of Labour headquarters all the General Secretaries who did not agree with him on the strike issue. This was done in Mr. Mugalla's presence and hence with his approval. The General Secretaries who were thrown out are some of the key members of the group that is opposed to his leadership today.
3. 477. The Government submits more specifically that COTU-K was scheduled to hold its Governing Council meeting at its Solidarity Building on 2 July 1993. The Governing Council is COTU-K's top executive organ, consisting of about 225 national delegates drawn from all its affiliated unions. Mr. Mugalla had also summoned all shopstewards and other non-participants to the same meeting without the knowledge and approval of most of the participating national delegates, thus causing a security problem. The police presence at the venue had no intention of either occupying the premises or preventing the meeting from taking place, but to ensure that law and order was maintained. The decision to change the venue for holding COTU-K's Governing Council meeting was taken by the majority group of those delegates who were opposed to Mr. Mugalla and his group of supporters and who felt that they needed a more secure venue on which to conduct the business of the day. The Government points out that the Kenyatta International Conference Centre is a commercial building and accessible to anyone who wishes to use its facilities. It adds that the Ministry of Labour's attendance at that meeting was lawful because, according to the current COTU-K constitution, the Permanent Secretary or his representative is a member of the Governing Council.
4. 478. The Government states that following brief discussion during the COTU-K Governing Council meeting at the Kenyatta International Conference Centre, a resolution was adopted to discuss the conduct of COTU-K's entire Executive Board, and Mr. Mugalla's calling of a national strike on 3 May 1993 contrary to Rule No. 26 of COTU-K's constitution. During the discussions, the members of COTU-K's Governing Council were unanimous in their condemnation of the then COTU-K office-bearers and all the Executive Board members. A resolution on a vote of no confidence was proposed by a Mr. Isaya Kubai of the Banking, Insurance and Finance Union, to have all the office-bearers and Board members of COTU-K removed from office. This resolution was seconded by a Mr. Owallo of the Petroleum and Oil Workers' Union. It was passed unanimously and thus, immediate elections were held to fill these vacant positions - including that of Mr. Mugalla.
5. 479. The Government indicates that the legality of these elections held on 2 July 1993 was challenged in the High Court of Kenya by Mr. Mugalla and his group, and the Court nullified the same on 10 November 1993. The Government points out, however, that the dispute in court is still continuing, since the group that is still opposed to Mr. Mugalla has gone ahead and filed for a "stay of execution" on the above-mentioned court verdict, pending an appeal. On 23 November 1993, however, the High Court once again refused to grant a "stay of execution" on its earlier order, which had nullified the legality of the elections held on 2 July 1993. The Government adds that the J. Ogendo group which had earlier ousted Mr. Mugalla's group on 2 July 1993, has now filed an appeal case in the Court of Appeal, and that it will provide details once the final verdict is handed down.
6. 480. The Government further points out that on 10 July 1993, the Governing Council of the Kenya Union of Commercial, Food and Allied Workers decided to replace Mr. Mugalla as their Secretary General. He was replaced by Mr. Daniel Ngirimani as the new Secretary General. The Government stresses that no form of government coercion was exerted in order to have Mr. Mugalla replaced as Secretary General, contrary to the ICFTU's unfounded and unsubstantiated allegations. All these changes were brought about by the on-going leadership rivalry both within COTU-K and the Kenya Union of Commercial, Food and Allied Workers' Union.
7. 481. The Government concludes by submitting that the above information clearly helps to illustrate that it in no way intends to weaken or interfere with the smooth running of the labour movement. On the contrary, the Kenyan Government has always strived over the years to encourage the development of a strong, viable and independent labour movement. Moreover, it maintains its position as earlier stated to the effect that Mr. Mugalla's arrest and his subsequent appearance in court took place purely for inciting workers to take part in an illegal strike and for inciting them to necklace with burning tyres anybody who dared to defy his illegal strike call. Such incitement automatically led to disobedience to law. This case against Mr. Mugalla is still pending in court and full details of the same will be submitted to the ILO once the case is decided upon.

C. The Committee's conclusions

1. 482. As regards the allegation concerning the police occupation of the headquarters of COTU-K on 2 July 1993 in order to prevent COTU-K from holding its Governing Council meeting, the Committee observes that the Government does not deny that the police were present on that day at the venue where COTU-K was to have held this meeting. According to the Government, the police had no intention of preventing the meeting from taking place but that its presence was required in view of the fact that Mr. Mugalla had summoned various other non-participants to this meeting in addition to the 225 members of COTU-K's General Council, thus causing a security problem. In this respect, the Committee would draw the Government's attention to the principle that freedom from government interference in the holding and proceedings of trade union meetings constitutes an essential aspect of trade union rights, and the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof on condition that the exercise of these rights does not disturb public order or cause a serious and imminent threat thereto (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 141). In the Committee's view, while the participation of persons from outside the Governing Council membership might not, in effect, have met with the approval of a number of the Council's national delegates, such a situation is unlikely to create a serious and imminent threat to public order requiring the intervention of the police. The Committee therefore urges the Government to ensure in future the right of trade unions to hold meetings freely in their own premises without police intervention.
2. 483. Turning to the issue of government support to a minority group from COTU-K in holding an unconstitutional meeting and the election of officers by this minority group to replace the legitimate COTU-K leadership, the Committee notes that the Government's version of these events differs greatly from that of the complainant. In the communications examined by the Committee in November 1993, the complainant maintained that Mr. Mugalla and his group constituted COTU-K's legitimate leadership since out of 219 delegates constituting the total delegates' strength at COTU-K's council meetings, 163 had pledged support in writing to Mr. Mugalla (see 291st Report of the Committee, para. 562). According to the Government, however, Mr. Mugalla had alienated a majority - although it does not specify what this majority is - of the 225 national delegates of COTU-K's Governing Council following his call for an illegal and purely politically motivated strike which, in addition to being contrary to COTU-K's internal rules, also had repercussions on certain members of COTU-K's affiliates. The Government emphasizes that the decision to change the venue for the meeting was taken by the majority of those delegates who adopted unanimously a resolution to have all the office-bearers and Executive Board members of COTU-K, including Mr. Mugalla, removed from office. Similarly, the Government refutes the allegation that Mr. Mugalla was replaced by Mr. D. Ngirimari as Secretary-General of the Commercial, Food and Allied Workers' Union at the Government's instigation. It insists that all the above leadership changes were brought about by an ongoing leadership rivalry both within COTU-K and the Commercial, Food and Allied Workers' Union.
3. 484. In view of the very large contradiction between the complainant's and Government's versions of the above-mentioned events, the Committee will only recall the principle that any control of trade union elections should rest with the judicial authorities (see Digest, op. cit., para. 296). In this respect, the Committee notes that the legality of the elections held on 2 July 1993 were challenged in the High Court by Mr. Mugalla and his group and that on 10 November 1993 the Court nullified the election results. The Committee further observes that the J. Ogendo group, which is opposed to Mr. Mugalla, filed for a "stay of execution" on the above-mentioned court verdict but that on 23 November 1993 the High Court refused to grant a "stay of execution" on its earlier order. Noting that the J. Ogendo group has now filed an appeal case in the Court of Appeal, the Committee requests the Government to send it a copy of the judgement of the Court of Appeal once it has been handed down.
4. 485. As regards the allegation that the participation of senior civil servants at the COTU-K Governing Council meeting of 2 July 1993 constitutes government interference of a very serious nature in trade union affairs, the Committee notes the Government's reply that the Ministry of Labour's attendance at that meeting was lawful because according to the current COTU-K Constitution, the Permanent Secretary or his representative is a member of the Governing Council. The Committee would, however, draw the Government's attention to the fact that cases where the public authorities have themselves drafted the constitutions of the central workers' organizations, as would appear to be the situation in Kenya, are in violation of freedom of association principles. The Committee would, moreover, draw the Government's attention to the fact that a provision whereby a representative of the public authorities can attend trade union meetings may influence the deliberations and the decisions taken (especially if this representative is entitled to participate in the proceedings) and hence may constitute an act of interference incompatible with the principle of freedom to hold trade union meetings (see Digest, op. cit., para. 150). Furthermore, a provision which allows a representative of the Ministry of Labour to be present at trade union elections is incompatible with the right of trade unions to hold free elections (see Digest, op. cit., para. 462). The Committee therefore requests the Government to ensure in future that representatives of the Ministry of Labour do not participate in trade union meetings or elections.
5. 486. The Committee notes that the case against Mr. Mugalla for inciting workers to take part in an illegal strike leading to disobedience of law is still pending in court. It requests the Government once again to keep it informed of the outcome of the legal proceedings instituted against Mr. Mugalla.