Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 331, Junio 2003

1. 559. The complaint is set out in a communication, dated 24 September 2002, from the International Organisation of Employers (IOE).
2. 560. The Government sent its observations on the complaint in a communication dated 28 January 2003.
3. 561. Kenya has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948, No. 87. It has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’ s allegations

1. 562. At the outset, the IOE indicates that the complaint is filed on behalf of the Federation of Kenya Employers (FKE) and that the Pan-African Employers’ Confederation co-sponsors it. The complaint is divided into three sections in which the IOE states the facts of the case, submits some background information and makes a number of considerations in light of the principles of freedom of association. On this basis, it concludes with requesting the Committee to make a series of specific recommendations to the Government.
   • Facts of the case
2. 563. The IOE indicates that on 20 August 2002, the FKE national chairman, Mr. Walter Mukuria, represented the employers’ interests in a meeting of the Finance Committee of the National Social Security Fund (NSSF) board of trustees. This meeting was convened following an irregular investment made by the former managing trustee of the NSSF who had unlawfully discounted treasury bills and deposited the money in a bank with which the NSSF had no previous dealings and about which the board of trustees had little knowledge. During this meeting, Mr. Mukuria suggested that verifications should be made on the main shareholders and directors of the bank where the money had been deposited. The IOE adds that according to some information, the bank in question was owned by some prominent Kenyan personalities, including at least one public official.
3. 564. The IOE alleges that soon after the meeting Mr. Mukuria was informed that policemen were looking for him. On the evening of the following day, 21 August, six heavily armed policemen arrived at Mr. Mukuria’s private home and requested him to accompany them. Despite Mr. Mukuria’s insistence that he be given a chance to contact his lawyer, the police denied him this right. Mr. Mukuria was brought to the Criminal Investigation Department headquarters (CID). He was allowed to call the FKE Executive Director but the latter, upon his arrival at the CID headquarters, was denied the opportunity to talk to Mr. Mukuria.
4. 565. The IOE alleges that at the CID headquarters, Mr. Mukuria was interrogated and forced to write a statement concerning his declaration during the meeting of the Finance Committee of the NSSF. Mr. Mukuria produced a seven-page statement to that effect after being denied once again the right to talk to his lawyer before writing it and under the threat of a prolonged detention if he refused to write the statement. He was eventually released later in the same evening but instructed to report back to the CID the following day.
5. 566. On 22 August, Mr. Mukuria was accompanied to the CID headquarters by the FKE Executive Director and the FKE Deputy Executive Director. After a stay of 15 minutes, he was told that he was free to go as the police found no merit in pursuing the matter any further and therefore would not prefer any charges against him.
   • Background
6. 567. The IOE submits the following indications on the FKE. The federation was registered in 1959 as an association of employers under the Trade Unions Act, Cap 233. It is without any doubt the most representative employers’ body in Kenya and the Kenyan Government acknowledges that it is best suited to represent the employers’ interests in the tripartite body such as the NSSF. It is affiliated to the Pan-African Employers’ Confederation and the IOE. The IOE adds that throughout its 43 years of existence, the FKE has maintained good working relations both with the Government and the Central Organization of Trade Unions through the tripartite system.
   • Considerations concerning the principles
   • of freedom of association
7. 568. The complainant underlines some ILO principles on freedom of association and submits that, in Mr. Mukuria’s case, an independent judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibilities, punishing those responsible and preventing the repetition of such acts. In conclusion, the complainant suggests a series of course of actions to be taken by the Committee including specific recommendations to be made to the Government of Kenya, in particular, to guarantee that the civil liberties of employers’ representatives, such as the freedom of speech, are respected in the future, that employers’ representatives may conduct the activities they are mandated to do without any kind of interference, harassment or intimidation by the Government and to publicly clarify and mend any harm caused to Mr. Mukuria’s reputation as a result of his unlawful detention.

B. The Government’s reply

1. 569. In its communication of 28 January 2003, the Government submits observations on the background of the case as well as responses to the specific recommendations suggested by the complainant.
   • Background
2. 570. The Government confirms the facts surrounding the meeting of the Finance Committee of the NSSF board of trustees as they are recounted by the complainant and in particular Mr. Mukuria’s suggestion in his capacity as member of the NSSF board of trustees that some verifications be carried out on the bank where the irregular investment was made. The Government acknowledges that it appears that such suggestion led to Mr. Mukuria’s arrest and detention by the security forces.
   • Specific responses
3. 571. The following considerations can be highlighted from the Government’s response. The Government asserts that it has always respected the principles of freedom of association to which it is bound by virtue of its membership of the ILO and its ratification of Convention No. 98. The Government states therefore that Mr. Mukuria’s arrest is highly regretted and that it will not allow such arrest to recur in the future. The Government further gives its assurances to the Committee that it will ensure that all social partners, employers’ representatives included, will be free to express their views without intimidation and harassment on the part of anyone including the Government. The Government asserts that Mr. Mukuria’s arrest and confinement should be treated as an isolated incident, which will not be repeated. The Government adds that it undertakes to ensure and guarantee the enjoyment of civil liberties to all social partners, including employers’ representatives.
4. 572. Further the Government underlines that it apologized to Mr. Mukuria through the FKE and that this apology was made public. Thus, through a press release dated 23 January 2003 – a copy of which is attached to the reply – the Government presents its public apology to Mr. Mukuria and the FKE, assures that employers’ representatives will continue to enjoy freedom of speech in all tripartite bodies, and that it will conduct thorough investigations with a view to punishing the persons responsible for the loss of the NSSF. The Government has attached to its reply newspaper extracts on the press release as well as a letter dated 27 January 2003 to the FKE transmitting copies of the press release and the extracts; in this letter the Government expresses its hope that Mr. Mukuria will accept its apology and consider a withdrawal of the complaint lodged with the Committee. Finally, the Government indicates that the NSSF board of trustees has already instituted court proceedings against those responsible for the irregular investment. The Government indicates that through these proceedings it is expected that those responsible for Mr. Mukuria’s arrest and detention will be identified and punished.

C. The Committee’s conclusions

1. 573. The Committee notes that the present case relates to the arrest and the detention of the leader of an employers’ organization by reason of a declaration made in this capacity during the meeting of a tripartite body.
2. 574. The Committee notes that the complainant’s version and that of the Government coincide on the following points. First, Mr. Mukuria’s declaration as a member of the NSSF prompted his arrest and detention for a few hours at the Criminal Investigation Department headquarters by the police. Second, in the course of his detention, Mr. Mukuria was forced to write a statement reflecting the declaration he had made before the NSSF. Third, the arrest and detention were operated outside any regular legal procedures and without the necessary judicial safeguards; in this connection, the Committee notes that the allegation on the police’s refusal that Mr. Mukuria be allowed to contact his lawyer is not denied by the Government.
3. 575. In the Committee’s view, the following principles of freedom of association can usefully be recalled in the present case. The arrest, even if only briefly, of leaders of workers’ and employers’ organizations for activities in connection with the exercise of their right to organize is contrary to the principles of freedom of association [see Digest of decisions and principles of the Freedom of Association Committee, 4th (Revised) edition, 1996, paras. 69 and 70]. Such arrest may create an atmosphere of intimidation and fear prejudicial to the normal development of trade union activities [see Digest, op. cit., para. 76]; all the more so when it occurs in an arbitrary manner, outside any regular legal procedure. The Government should take steps to ensure that the authorities which proceeded to arbitrary arrest have appropriate instructions to eliminate the danger which arrest for trade union activities implies [see Digest, op. cit., para. 81].
4. 576. On the other hand, the Committee notes from the Government’s reply that the Government presented publicly its apology to Mr. Mukuria and his organization through a detailed press release which was diffused by some newspapers; this press release and newspaper extracts were transmitted to the FKE by a letter from the Government. The Committee also notes the statements made by the Government in its reply that Mr. Mukuria’s arrest is highly regretted and that it is an isolated incident which the Government will not allow to recur. The Committee further notes the Government’s assurances that it will ensure that all social partners, including employers’ representatives, will enjoy freedom of opinion and expression without intimidation and harassment; more generally, the Government undertakes to ensure that all social partners, including employers’ representatives, fully enjoy the exercise of civil liberties.
5. 577. In light of the steps taken by the Government, a little before submitting its reply to the complaint, to make amends publicly for the arrest and detention of Mr. Mukuria, the Committee considers that the Government has taken the appropriate steps to remedy the violation of the principles of freedom of association that occurred to the detriment of the FKE Chairman. Noting the solemn statements made by the Government before the Committee in respect of full compliance with the principles of freedom of association and their application, the Committee trusts that the Government will effectively ensure that arbitrary arrest and detention of any person by reason of his activities as representative of a workers’ or an employers’ organization will be averted. Finally, the Committee notes the Government’s indication that the court proceedings initiated by the NSSF against the persons responsible for the irregular investment are likely to lead to the identification and the sanction of the persons responsible for Mr. Mukuria’s arrest. The Committee requests the Government to keep it informed in this respect.