Sources and institutions of labour law in Kenya.
Sources of labour law are both international and national (the latter including the regulations established through the social partners themselves). Employment relations in Kenya are regulated by a number of sources: constitutional rights, statutory rights, as set out in statutes and regulations; rights set by collective agreements and extension orders of collective agreements; and individual labor contracts. These legal sources are interpreted by the Industrial Court, and in some cases by the ordinary courts. A particularly important role to play has the tripartite Industrial Relations Charter that laid the foundation for an industrial relations system already prior to Kenya’s independence in 1963. International standards, especially ILO Conventions ratified by Kenya are used by the government and courts as guidelines, even though they are not binding. Acts of Parliament in the realm of civil and criminal law, which have provisions that may have impact on individual and collective labor relations include the Contract Act, Local Government Act, Public Service Commission Act, the Children Act, laws concerning the Armed Forces, and legislation dealing with the establishment of parastatals. The following Acts of Parliament form the labor legislation framework for the country: • Employment Act of 2007
• Regulation of Wages and Conditions of Employment Act (Cap. 229), - Industrial Training Act (Cap. 237), - Workmen’s Compensation Act (Cap. 236), - Shop Hours Act (Cap. 231), - Mombasa Shop Hours Act (Cap. 232), - Factories Act (Cap. 514), - Trade Unions Act (Cap. 233),- Trade Disputes Act (Cap. 234); • Companies Act (Cap. 486);
• Bankruptcy Act (Cap. 53);
• Merchant Shipping Act (Cap. 389);
• Export Processing Zone’s Act (Cap. 547);
• Immigration Act (Cap. 172);
• Pension Act (Cap. 189);
• Retirement Benefits Act (No. 3 of 1997);
• National Social Security Fund Act (Cap. 258);
• National Hospital Insurance Act (Cap. 255);
• Provident Fund Act (Cap. 191);
• Public Health Act (Cap. 242).
The constitution of Kenya
Articles 26 to 51 of the current constitution deal with fundamental rights. Basically the Constitution guarantees fundamental rights and freedoms of the individual. Among these fundamental rights, a range of general principles underpinning labor rights are anchored in the Constitution itself. The Constitution provides for principles, such as the prohibition of inhuman treatment (Art. 28) and the protection from slavery and forced labor (Art. 30). Freedom of Association is guaranteed in the Constitution under Art. 36. This constitutional provision already regulates in detail procedures for the registration of trade unions and associations of trade unions. Under this provision reasonable conditions relating to the requirements for entry on a register of trade unions include conditions as to the minimum number of persons necessary to constitute a trade union qualified for registration, or members necessary to constitute an association of trade unions qualified for registration. Moreover, the Constitution already names conditions whereby registration may be refused by the registrar: “on the grounds that another trade union already registered or association of trade unions already registered, as the case may be, is sufficiently representative of the whole of a substantial proportion of the interests in respect of which registration of a trade union or association of trade unions is sought”. The right to strike is not mentioned explicitly, but Art. 41(2) protects not only the right to organize, but explicitly activities serving the purpose of the union, such as all activities designed to protect the individuals’ interests. Related to an employee’s freedom are also the protection of right to personal liberty (Art. 72), his or her freedom of movement (Art. 81), and the protection from...
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