Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 295, Novembre 1994

1. 519. In a communication dated 5 July 1994, the Public Services International (PSI) submitted a complaint of violations of freedom of association against the Government of Kenya. By a communication dated 20 July 1994, the International Confederation of Free Trade Unions (ICFTU) expressed its desire to associate itself with this complaint.
2. 520. The Government sent its observations on the case in a communication dated 28 September 1994.
3. 521. Kenya has not ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) or the Labour Relations (Public Service) Convention, 1978 (No. 151); it has ratified the Right to Organize and Collective Bargaining Convention, 1949 (No. 98) and the Workers' Representatives Convention, 1971 (No. 135).

A. The complainants' allegations

1. 522. In its communication dated 5 July 1994, the Public Services International (PSI) refers to a previous case concerning trade union rights for civil servants examined by the Committee in its 241st Report (Case No. 1189) and asserts that the recommendations then made were never implemented by the Government and the situation has indeed worsened.
2. 523. The complainant organization alleges that top officials of the Universities' Academic Staff Union were arrested by the police. Furthermore, as concerns the Kenya Medical Practitioners and Dentists Union, the doctors continue to go on strike despite a warning from the Ministry of Health that doctors are considered part of an essential service, thus rendering the strike illegal, and a threat made by the President to hire foreign workers.
3. 524. On 15 June 1994, the Registrar of Trade Unions refused to register the Medical Practitioners and Dentists Union. This decision has been appealed and an application has also been filed in the High Court by officials of the Medical Practitioners and Dentists Union to have the Minister for Health jailed for alleged contempt of court for having allegedly pre-empted the court's finding in the suit to compel the Government to register the union.
4. 525. Freedom of association is provided for in the Constitution and the ruling party supported the revival of the Civil Servants Unions and the University Staff Associations in its 1992 election manifesto. On 1 May 1992, President Moi announced the lifting of the ban on the defunct Union of Kenya Civil Servants and on 8 May appointed a committee to consider the need of establishing a trade union for civil servants. The parliamentary motion on the reinstatement of the union was unanimously passed by the Legislature on 13 October 1993 with the support of the Government.
5. 526. On 28 April 1994, the Government approved the above-mentioned committee's report which recommended the immediate establishment of the Kenya Union of Civil Service Employees. In a press statement signed by the head of the civil service, it was stated that the revived union would secure the assets and liabilities of the defunct Union of Kenya Civil Servants and that the present Kenya Civil Servants' Welfare Association would be de-registered. It was announced that a number of groups within the public service would be exempted from taking part in the union, including Teachers under the Teachers Service Commission and persons responsible for making recommendations or taking decisions on appointments, promotions, terminations and other disciplinary actions affecting other officers. The President directed the Registrar of Trade Unions to oversee the implementation of the exercise with immediate effect.
6. 527. On 3 May 1994, an application was submitted for the registration of the proposed Kenya Union of Civil Service Employees and on 11 May 1994 President Moi revoked his consent for the immediate establishment of the union, stating that he had only allowed for the formation of a Welfare Association.
7. 528. The ICFTU associated itself with this complaint in a communication dated 20 July 1994.

B. The Government's reply

1. 529. In its communication dated 28 September 1994, the Government first indicated its willingness and good faith to maintain international standards, demonstrated by the 46 Conventions which it has already ratified.
2. 530. As concerns the subject of the complaint, the Government confirmed that some university lecturers and some doctors in the civil service had "boycotted" their jobs after their applications for the registration of their trade unions were refused. The Government indicates that these cases have been referred to the High Court and cannot, therefore, be discussed. It queries why boycott action was resorted to when the matter is still in court. The Government further asserts that those on boycott are not joined together by any trade union or organization and are thus acting individually. They are simply infringing their contracts of employment.
3. 531. The Government recalls that it has not ratified Conventions Nos. 87 and 151, but adds that it has not deliberately gone out to infringe any of the provisions of these Conventions. It affirms, to the contrary, that it has allowed unionization in the local government even in the central government up to 1982 and recalls that the ILO has already been informed of the reasons for this action.
4. 532. he Government affirms that it has strictly followed the pattern of unionization agreed by the tripartite partners as concluded and signed in the Kenya Industrial Relations Charter (1962 as amended in 1980) and adds that the Charter is not in any part in conflict with the Kenyan Constitution or with ILO Conventions Nos. 87, 98 or 151.
5. 533. The Government adds that, for these reasons, it must be allowed to decide for itself what best suits it and to implement the same in its own time. The Government has not closed any doors for unionization and will continue to constantly review every situation and decide appropriately. It will also continue to consult its tripartite partners in the development of trade unions.
6. 534. The Government states that it has given the question of the unionization of civil servants a lot of consideration and continues to do so. If and when the Government decides on this issue, it will be so stated. However, for now, the civil servants have an association which continues to cater for their interests and welfare.
7. 535. In its final comments, the Government stated categorically that it was a democratic country which has not infringed on any trade union rights, any ILO Conventions, its own Constitution or laws. It expressed its assurance of its best intentions of continued improvement of the quality of life of not only the workers, but the whole of its population. The Government concluded, in this respect, that the rights of the workers and employers will continue to be upheld for the betterment of the nation.

C. The Committee's conclusions

1. 536. The Committee notes that this case concerns both the question of the refusal to register two unions, the Universities' Academic Staff Union and the Kenya Medical Practitioners and Dentists Union, and the continuing refusal to register the Kenya Civil Servants' Association, the de-registration of which had been the subject of complaint presented to the Committee over ten years ago (see, Case No. 1189: 230th Report, paras. 679-688, 238th Report, paras. 248-260 and 241st Report, paras. 387-395).
2. 537. The Committee notes with regret that the Government has not made observations on the specific allegation made by the complainant that top officials of the Universities' Academic Staff Union (UASU) were arrested by the police. It notes the Government's indication that some university lecturers "boycotted" their jobs after their application for registration was refused and that the case was pending at the High Court. It further notes the Government's assertion that these workers were acting individually in their "boycott" action as no trade union or organization actually joins them together.
3. 538. First, as concerns the existence of a trade union and thus the question of individual or collective action with respect to the UASU, the Committee points out that the right to form and to join organizations for the promotion and defence of workers' interests without previous authorization is a fundamental right which should be enjoyed by all workers without distinction whatsoever, including teachers considered to be part of the public service. The Committee notes that the question of the registration of this union is sub judice, and, in this respect, urges the Government to ensure that this principle is respected. It requests the Government to keep it informed of the Court's judgement in this case.
4. 539. As concerns the strike action undertaken by the USAU, the Committee recalls that it has always recognized the right to strike by workers and their organizations as a legitimate means of defending their economic and social interest (Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 362). The fact that a strike is called for recognition of a union is, in the Committee's view, a legitimate interest which may be defended by workers and their organizations.
5. 540. With respect to the reported arrests of UASU's top leaders, the Committee recalls the importance which it attaches to the principle according to which the arrest - even if only briefly - of trade union leaders and trade unionists for exercising legitimate trade union activities constitutes a violation of the principles of freedom of association (Digest, op. cit., para. 88). The Committee requests the Government to take the necessary measures to ensure that, in the future, trade union leaders and trade unionists will not be arrested for exercising legitimate trade union activities.
6. 541. The Committee understands that the refusal of registration for the Kenya Medical Practitioners and Dentists Union has been brought before the High Court and is presently sub judice. The Committee recalls in this respect, as it has for the question of the Universities' Academic Staff Union, that the right to form and to join organizations for the promotion and defence of workers' interests without previous authorization is a fundamental right which should be enjoyed by all workers without distinction whatsoever, including hospital personnel. The Committee urges the Government to ensure respect for this principle and requests the Government to keep it informed of the Court's judgement in this case.
7. 542. As concerns the Kenya Medical Practitioners and Dentists Union, the Committee notes that, according to the complainant, doctors continued to strike despite a warning from the Ministry of Health that the strike was illegal since they are considered to be part of an essential service. The Committee recalls in this regard that it has considered the hospital sector to be an essential service and has acknowledged that the right to strike can be restricted or even prohibited in essential services in so far as a strike there could cause serious hardship to the national community and provided that the limitations are accompanied by certain compensatory guarantees. (See, Digest, op. cit., paras. 409 and 393.)
8. 543. Finally, as concerns the Kenya Union of Civil Service Employees, the Committee notes the information provided by the complainant, and not contradicted by the Government, that, after having approved the recommendations made by the government-appointed commission for the immediate establishment of the union, the President revoked his consent for registration, stating that he had only allowed for the formation of a Welfare Association. The Committee recalls in this respect that it had already been called upon to consider the validity of the Kenya Civil Servants' Welfare Association in its examination of Case No. 1189. At that time, the Government had indicated that the Association in question had not been allowed to participate in activities of a trade union nature. The Committee in its conclusions regretted the failure of the Government to supply any information on measures to permit the establishment of organizations through which the workers in question may pursue their normal trade union activities and it regarded as especially regrettable the Government's affirmation that the Kenya Civil Servants' Welfare Association had not been allowed to participate in activities of a trade union nature. (See 241st Report, paras. 390 and 392.)
9. 544. The Committee deeply deplores that the situation of Kenyan civil servants in this respect appears not to have changed in over ten years and that, in that time, the Government has not taken into account its recommendations in Case No. 1189. It must once again recall the importance it attaches to the principle that public servants, like all other workers, without distinction, have the right to establish and join organizations of their own choosing, without previous authorization, for the promotion and defence of their occupational interests. While welcoming the steps which had been taken by the Government to reinstate the defunct union, the Committee notes that the government-appointed committee established to consider this question called specifically for the immediate establishment of the Kenya Union of Civil Service Employees. The Committee wishes to recall in this regard that the right of all workers to form and join organizations of their own choosing necessarily implies that any legislation ensuring this right should leave to the free choice of the workers the organization to be formed. It urges the Government to take the necessary steps to ensure that workers in the civil service have the right to form and join organizations of their own choosing, without previous authorization, and requests the Government to keep it informed of the steps taken in this regard.
10. 545. The Committee also recalls its previous conclusions concerning the assets of the Kenya Civil Servants' Association which were seized upon its de-registration and urge the Government to ensure that these assets are handed over to the organization which succeeds it in the pursuit of its trade union activities. The Government is requested to keep the Committee informed of the steps taken in this regard.
11. 546. As concerns the exemptions noted by the complainant in the original recommendation of the government-appointed commission with respect to the right to organize for civil servants, the Committee recalls that, as this right should be guaranteed to all workers, without distinction whatsoever, such exemptions should be limited to the police and the armed forces. As concerns persons exercising senior managerial or policy-making responsibilities, the Committee is of the opinion that while these public servants may be barred from joining trade unions which represent other workers, such restrictions should be strictly limited to this category of workers and they should be entitled to establish their own organizations. (See, General Survey on Freedom of Association and Collective Bargaining, ILC, 81st Session, 1994, para. 57.)