Section 7. Worker Rights
a. Freedom of Association and the Right to Collective Bargaining
The law provides for the right of workers, including those in export processing zones, to form and join unions of their choice and to bargain collectively. For the union to be recognized as a bargaining agent, it must represent a simple majority of the employees in a firm eligible to join the union. This provision extends to public- and private-sector employees. Members of the armed forces, prisons service, and police are not allowed to form or join trade unions.
The law permits the government to deny workers the right to strike under certain conditions. For example, the government prohibits members of the military, police, prison guards, and the National Youth Service from striking. Civil servants are permitted to strike following a seven-day notice period. A bureau of the Ministry of Labour and Social Protection typically referred disputes to mediation, fact finding, or binding arbitration at the Employment and Labour Relations Court, a body of up to 12 judges that has exclusive jurisdiction to handle employment and labor matters and that operates in urban areas, including Nairobi, Mombasa, Nyeri, Nakuru, Kisumu, and Kericho. The Employment and Labour Relations Court also has subregistries in Meru, Bungoma, Eldoret, Malindi, Machakos, and Garissa.
By law workers who provide essential services, interpreted as “a service the interruption of which would probably endanger the life of a person or health of the population,” may not strike. Any trade dispute in a service listed as essential or declared an essential service may be adjudicated by the Employment and Labour Relations Court.
Strikes must concern terms of employment, and sympathy strikes are prohibited.
The law permits workers in collective bargaining disputes to strike if they have exhausted formal conciliation procedures and have given seven days’ notice to the government and the employer. Conciliation is not compulsory in individual employment matters. Security forces may not bargain collectively but have an internal board that reviews salaries. Informal workers may establish associations, or even unions, to negotiate wages and conditions matching the government’s minimum wage guidelines and advocate for better working conditions and representation in the Employment and Labour Relations Court. The bill of rights in the constitution allows trade unions to undertake their activities without government interference, and the government generally respected this right.
The law prohibits antiunion discrimination and provides for reinstatement of workers dismissed for union activity. The Labour Relations Court can order reinstatement and damages in the form of back pay for employees wrongfully dismissed for union activities. Labor laws apply to all groups of workers. Penalties for labor law violations were not commensurate with those for similar offenses.
The government enforced the decisions of the Labour Relations Court inconsistently. Many employers did not comply with reinstatement orders, and some workers accepted payment in lieu of reinstatement. In several cases employers successfully appealed the Labour Relations Court’s decisions to a branch of the High Court. The enforcement mechanisms of the Labour Relations Court remained weak, and its case backlog raised concerns regarding the long delays and lack of efficacy of the court.
The Labour Relations Court received many cases arising from the implementation of new labor laws. The parties filed most cases directly without referral to the Ministry of Labour and Social Protection for conciliation. The court had a significant backlog.
The chief justice designated all county courts presided over by senior resident magistrates and higher-ranking judges as special courts to hear employment and labor cases. Providing adequate facilities outside of Nairobi was challenging, but observers cited the ability of workers to submit labor-related cases throughout the country as a positive step. The 2016 employment and labor relations (procedure) rules provide parties access to file pleadings directly in electronic form, pretrial procedures, and alternative dispute resolution. The rules also set a 30-day time limit for the court to submit a report on disagreements over collective bargaining agreements filed.
The government generally respected freedom of association and the right to bargain collectively, although enforcement was inconsistent. The government expressed its support for union rights mandated in the constitution.
Airport workers at Nairobi’s Jomo Kenyatta International Airport went on strike in March to protest potential restructuring of the airport. Six striking workers were injured during clashes with police, and 10 members of the Kenya Aviation Workers Union, including its secretary general, were arrested. After negotiation, the union agreed to end the strike in exchange for release of the arrested union officials and an agreement not to fire striking workers.
Migrant workers often lacked formal organization and consequently missed the benefits of collective bargaining. Similarly, domestic workers and others who operated in private settings were vulnerable to exclusion from legal protections, although domestic workers’ unions exist to protect their interests.
The government maintained labor attaches in Qatar, Saudi Arabia, and the United Arab Emirates to regulate and coordinate contracts of migrant workers from the country and promote overseas job opportunities. The National Employment Authority manages a website that provides information to prospective migrant workers on the procedures of becoming a migrant worker in the Gulf. The Ministry of East African Community and Regional Development also helped domestic workers understand the terms and conditions of their work agreements. The government operationalized a 2017 bilateral agreement with Saudi Arabia in January after revetting recruitment agencies in Riyadh. The government has additional bilateral agreements with Qatar and United Arab Emirates. The ministry has a directorate to regulate the conduct of labor agents for local migrant workers, including requiring the posting of a performance-guarantee bond for each worker.
The misuse of internships and other forms of transitional employment threatened the survival of trade unions, with employers often not hiring employees after an internship ends. State agencies increasingly outsourced jobs to the private sector, and in the private sector, casual workers were employed on short-term contracts.
This shift contributed to declining numbers in trade unions. NGOs and trade unionists reported replacement of permanent positions by casual or contract labor, especially in the export-processing zones, the Port of Mombasa, and in the agricultural and manufacturing sectors. In some cases employers staffed permanent jobs with rotating contract workers. This practice occurred at the management level as well, where employers hired individuals as management trainees and kept them in these positions for the maximum permitted period of three years. Instead of converting such trainees to permanent staff, employers replaced them with new trainees at the end of three years.
The health sector experienced strikes precipitated by challenges related to the COVID-19 pandemic. Health workers, through their associations, issued strike notices citing failure by the government to meet their workplace demands, including adequate personal protective equipment while attending to COVID-19 patients. Counties like Nairobi and Trans Nzoia witnessed strikes by health workers. The health sector also witnessed industrial strikes by county government health professionals to protest delayed salary payments. The strikes occurred intermittently in various counties, since under the 2010 constitution, each county manages its own health system as part of the devolution of resources and services from the national government. According to the Council of Governors, all 47 counties faced delayed salaries for July due to government delay in disbursement of funds. The strikes affected delivery of services in counties such as Vihiga, Kisumu, and Nairobi, but negotiations averted some threatened strikes.
d. Discrimination with Respect to Employment and Occupation
The law prohibits discrimination based on race, sex, ethnicity, religion, and several other criteria, but it does not explicitly prohibit discrimination based on sexual orientation or gender identity. Several regulatory statutes explicitly prohibit discrimination against persons with disabilities; provide a legal framework for a requirement for the public and private sectors to reserve 5 percent of employment opportunities for persons with disabilities; provide tax relief and incentives for such persons and their organizations; and reserve 30 percent of public-procurement tenders for women, youth, and persons with disabilities.
The government did not effectively enforce the law. Penalties for discrimination were not commensurate with those for comparable offenses. Gender-based discrimination in employment and occupation occurred, although the law mandates nondiscrimination based on gender in hiring. The average monthly income of women was approximately two-thirds that of men. Women had difficulty working in nontraditional fields, received slower promotions, and were more likely to be dismissed. According to a World Bank report, both men and women experienced sexual harassment in job recruitment, but it was more frequently experienced by women. Women who tried to establish their own informal businesses were subjected to discrimination and harassment.
Many county governors appointed and employed disproportionate numbers of the dominant tribe in their county, bypassing minority groups. These problems were aggravated by the devolution of fiscal and administrative responsibility to county governments. Observers also noted patterns of preferential hiring during police recruitment exercises (see section 1.d.).
In both private business and in the public sector, members of nearly all ethnic groups commonly discriminated in favor of other members of the same group. A report detailing the ethnic composition of 417 senior civil service staff tabled at the Senate in September indicated that four tribes dominated high-level management positions in civil service. The dominant ethnic community had 29 percent of the 417 positions, while the second had 10 percent.
The law provides protection for persons with disabilities against employment discrimination, although many employers discriminated against persons with disabilities during hiring processes (see section 6, Persons with Disabilities). Due to societal discrimination, there were very limited employment opportunities for persons with albinism. There are no legal employment protections for LGBTI persons, who remained vulnerable to discrimination in the workplace. Discrimination against migrant workers also occurred.
e. Acceptable Conditions of Work
Regulation of wages is part of the Labor Institutions Act, and the government established basic minimum wages by occupation and location, setting minimum standards for monthly, daily, and hourly work in each category. The minimum wage for all occupations exceeded the World Bank poverty rate.
The law limits the normal workweek to 52 hours (60 hours for night workers); some categories of workers had lower limits. It specifically excludes agricultural workers from such limitations. It entitles an employee in the nonagricultural sector to one rest day per week and 21 days of combined annual and sick leave. The law also requires total hours worked (regular time plus overtime) in any two-week period not exceed 120 hours (144 hours for night workers) and provides premium pay for overtime.
The government did not effectively enforce the law. Penalties were not commensurate with those for comparable offenses. Authorities reported workweek and overtime violations. Workers in some enterprises, particularly in the export processing zones and those in road construction, claimed employers forced them to work extra hours without overtime pay to meet production targets. Hotel industry workers were usually paid the minimum statutory wage, but employees worked long hours without compensation. Additionally, employers often did not provide nighttime transport, leaving workers vulnerable to assault, robbery, and sexual harassment.
The law details environmental, health, and safety standards. The Ministry of Labour and Social Protection’s Directorate of Occupational Health and Safety Services has the authority to inspect factories and work sites but employed an insufficient number of labor inspectors to conduct regular inspections. Fines generally were insufficient to deter violations.
The directorate’s health and safety inspectors can issue notices against employers for practices or activities that involve a risk of serious personal injury. Employers may appeal such notices to the Factories Appeals Court, a body of four members, one of whom must be a High Court judge. The law stipulates factories employing 20 or more persons have an internal health and safety committee with representation from workers. According to the government, many of the largest factories had health and safety committees.
The law provides for labor inspections to prevent labor disputes, accidents, and conflicts and to protect workers from occupational hazards and disease by ensuring compliance with labor laws. The government paid low salaries to labor inspectors and did not provide vehicles, fuel, or other resources, making it very difficult for labor inspectors to do their work effectively and leaving them vulnerable to bribes and other forms of corruption. The State Department for Labor faced a large number of retiring labor inspectors during the year, and there was no hiring of new inspectors.
The law provides social protections for workers employed in the formal and informal sectors. Informal workers organized into associations, cooperatives, and, in some cases, unions. All local employers, including those in the informal sector, are required to contribute to the National Hospital Insurance Fund and the National Social Security Fund; these provide health insurance and pensions respectively.
Workers, including foreigners and immigrants, have the legal right to remove themselves from situations that endanger health or safety without jeopardy to their employment. The Ministry of Labour and Social Protection did not effectively enforce these regulations, and workers were reluctant to remove themselves from working conditions that endangered their health or safety due to the risk of losing their jobs. The Kenya Federation of Employers provided training and auditing of workplaces for health and safety practices.