Interim Report - Report No 208, June 1981

Case No 984 (Kenya) - Complaint date: 21-JUL-80 - Closed

1. 310. The complaint of the Organisation of African Trade Union Unity (OATUU) was transmitted in communications dated 21 July and 22 December 1980; the Public Services International (PSI) sent allegations relating to this complaint in communications dated 29 August and 15 September 1980. The Government replied in communications dated 13 February and 15 May 1981.
2. 311. Kenya has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Labour Relations (Public Service) Convention, 1978 (No. 151); it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Allegations of the complainants

1. 312. In its telegram of 21 July 1980, the OATUU states that the Kenyan Government had dissolved the Union of Civil Servants and the Union of University workers, the former being one of the largest and best organised unions in the country. In its letter of 22 December 1980, this complainant explains that the Government has closed the union offices, seized union properties (cars, buildings, houses), forced the union to declare redundant over 100 workers and has distributed an illegal (contrary to the Trade Union Act and Trade Disputes Act) circular de-recognising the union and cancelling the check-off system.
2. 313. In its letters of 29 August and 15 September 1980, the PSI alleges violations of Convention No. 98 in respect of its affiliate, the Union of Kenya Civil Servants, which has 75,000 members. It states that during August 1980, the Government withdrew recognition from the Union thereby preventing it from any form of representation, either by negotiation or by consultation, with the Government as employer. According to the PSI, the assets of the Union were frozen which resulted in the Union having to terminate the employment of more than 100 full-time staff as it could not pay their wages. It also alleges that the Government withdrew check-off facilities.

B. The Government's reply

1. 314. The Government replies that it does not in any way intend to remove trade union rights or freedom of association from its people. It states that such rights are enjoyed by all employees, including those in the public service such as local government, the teaching service, para-statal corporations like the railways, posts and telecommunications and Kenya Airways.
2. 315. The Government replies in the following terms: the Constitution and Recognition Agreement of the Union of Kenya Civil Servants did not take full account of the conditions prevailing in the country, in that the documents contained provisions which could lead to the misuse of the Union. Due to this, and to the role of the civil service as the Government's machinery for running the affairs of the State, it was decided to de-register the Union; it was not banned. The Government states that steps are being taken, in consultation with the civil servants, to clear the way for the formation of a new organisation whose Constitution would take full account of the conditions pertaining to the country and would also give due recognition to the special role of the civil service. On completion of these consultations, the civil servants will be free to form a new organisation to look after their welfare and to elect leaders of their own choice to run the organisation.
3. 316. In its letter of 15 May 1981, the Government adds that the civil servants have now submitted a proposed Constitution of a Kenya Civil Servants' Association which is to be formed to replace the de-registered union. The Government is currently examining the proposed Constitution and, as soon as it is cleared, the civil servants will be able to form the new association.

C. The Committee's conclusions

1. 317. This case concerns the de-registration of the Union of Kenya Civil Servants and the alleged dissolution of the Union of University Workers, as well as the freeze and seizure of the civil servants' union's assets.
2. 318. As regards the de-registration of the Union of Kenya Civil Servants, the Committee notes the Government's statement that this was done because of its Constitution and Recognition Agreement did not take account of the conditions in the country which could lead to misuse of the Union - although the Government does not specify which provisions of the Constitution are involved - but that steps are being taken in consultation with the workers concerned to enable the formation of a new organisation to represent them. The Committee also notes that de-registration has the legal effect of dissolving a union after which its funds shall be disposed of according to its rules; there is an appeal to the High Court on the substance of the case (sections 20(1) and 18, respectively, of the Trade Unions Act, 1962). In these circumstances, it must recall the principle that workers' and employers' organisations should not be liable to be dissolved by administrative authority. As consultations are under way between the parties concerned, the Committee would hope that these discussions will take due account of the principle that workers and their organisations should have the right to draw up their Constitutions and rules without interference from public authorities such as would restrict this right. It requests the Government to inform it of the outcome of the steps being taken towards the establishment of a new civil servants' organisation.
3. 319. The dissolution of the Union of University Workers referred to by one of the complainants raises the same restriction of freedom of association as the case of de-registration outlined above. The Committee notes that the Government has made no comment on this allegation and it would therefore request it to send its observations thereon.
4. 320. Regarding the interference with the union assets, which appears to be a legal consequence of de-registration, the Committee would point out the general principle that workers' organisations should have the right to organise their administration in full freedom, especially in view of the ILO Resolution Concerning Trade Union Rights and their Relation to Civil Liberties which states that the right to protection of the property of trade union organisations is essential for the normal exercise of trade union rights. The Committee trusts that the consultations under way for the free formation of a new civil servants' union will take account of this principle.
5. 321. In addition, the Committee recalls the importance of the principle that when an organisation is dissolved, its assets should be provisionally sequestrated and eventually distributed among its former members or handed over to the organisation that succeeds it.
6. 322. Finally, the Committee notes that the de-registration was accompanied by a further measure which could prejudice the interests of the workers, that is, the withdrawal of the check-off system. The Committee hopes that, during the consultations which are taking place, an agreement can be reached whereby such measures which could lead to financial difficulties for trade union organisations would be avoided.

The Committee's recommendations

1. 323. In these circumstances, the Committee recommends the Governing Body to adopt the present interim report, in particular the following conclusions:
   • As regards the de-registration of the civil servants, union, the Committee notes that all the parties concerned are involved in consultations to lead to the establishment of a new organisation to represent these workers and that these consultations have resulted in the submission to the Government of a proposed Constitution of a Kenya Civil Servants' Association which is currently under examination. In this connection it draws to the attention of the Government the principle that workers' organisations should not be dissolved by administrative authority and should be free to draw up their own Constitutions without external interference. It requests the Government to inform it of the outcome of the examination of the Constitution of the new organisation which is currently underway.
   • As the Government makes no comment on the allegation that the Union of University Workers has been dissolved by administrative authority, the Committee would also request it to send its observations thereon.
   • Concerning the alleged interference with union assets and withdrawal of the check-off system which accompanied the deregistration, the Committee would draw the Government's attention to the principle that workers' organisations shall have the right to organise their administration in full freedom, and to the consideration that measures which could lead to financial difficulties for trade unions should be avoided. Furthermore, it recalls that when an organisation is dissolved the assets should be distributed among its former members or handed over to the organisation which succeeds it. It hopes that the consultations under way will take account of these principles and consideration.