Why unions back Kenya's new constitution

Solidarity with Kenyan trade unions

Article by COTU(K) General Secretary

17 June 2010

Kenya is at last getting a new constitution, and here Francis Atwoli, General Secretary of the Kenyan Central Organisation of Trade Unions, explains why, on balance, unions are backing it.

Kenya's proposed constitution

By Francis Atwoli

The Central Organisation of Trade Unions, COTU(K) has been part and parcel of the change process in Kenya dating back to 2002 when the labour movement was in the forefront in mobilising Kenyans to vote out the previous one-party regime, which had ruled the country for over 40 years, and ushered in a new coalition government.

In constitutional matters, COTU(K) fully participated in the process from 2003 through to 2005 when the document was subjected to a Referendum. When COTU(K) realized it had been short changed by some forces in government - who altered the original agreed document and instead put a totally different document to a Referendum - it mobilised the Kenyan workers and public to reject the document.

Now, after close to 20 years, Kenyans may get a new Constitution. The current document, prepared by a Committee of Experts, could not be amended by parliament due to a provision in the Act that required a two-thirds majority to make any changes. COTU(K) believes this has provided an opportunity for Kenyans to get a new Constitution.

The Proposed Constitution, recognizes the following rights in article 41: fair labour practices generally; fair remuneration; the right to reasonable working conditions, to form, join and participate in the activities of a trade union and the right to go on strike.

This means for the first time in Kenya that workers will have the Right to Strike entrenched in the Constitution and this will provide workers with an opportunity to bargain for their labour without being intimidated and declaring such a move illegal.

The Proposed Constitution further creates more rights for employers and employees than exist currently. Whereas most of these rights are generally accepted practice, the fact that they will be anchored in the constitution means that the rights can be defended in court as workers and their employers contend on the essence of the right to a fair wage for instance.

Unfortunately, these rights won't be available for certain categories of workers. In particular, Article 24(5) permits the enactment of a law to limit, among others, this right to labour relations, the freedom of association and the right of assembly, picketing and demonstration with regard to the Kenya Defense forces and the Police Service respectively.

At the same time, at least three workers' representative will be nominated to sit in Parliament to articulate issues concerning workers; something workers have been yearning for over the years.

Comparatively, the proposed Constitution has provisions that will give the Kenyan workers ground to bargain competitively for their labour as opposed to the current Constitution.