1.1 Overview of Kenya’s development framework

Since independence in 1963, Kenya’s economic, social and political aspirations were founded on the Sessional Paper No. 10 of 1965 on “African Socialism and its Application to planning in Kenya” (Republic of Kenya, 1965). In 2007, Kenya redefined its development agenda by developing a blue print, “The Vision 2030” that aspires to transform Kenya into “A Globally Competitive and Prosperous Country” (Republic of Kenya, 2007). And in order to enhance its commitment to its development agenda, Kenya enacted a new constitution in 2010 that put in place two levels of government: the national and the devolved systems that are geared towards enhancing inclusive economic growth (Republic of Kenya, 2007). Just to mention, Kenya’s economy grew by 5.4 and 5.6 Per cent in 2014 and 2015 respectively. (Republic of Kenya, 2016)

1.2 Brief History of Trade Unions in Kenya

Trade unionism began in the early 1930s in Kenya. In 1947, Kenyans became actively involved in trade unions, driven by the rising trend of workers’ rights violation. This violation culminated to a landmark strike in the port of Mombasa in 1947 leading to losses in terms of jobs as well as massive property destruction. The government then made an enquiry into the causes of the strike through a commission. After intensive inquiry, the government realized that there was urgent and critical need for a mechanism through which it could contact the workers. This was the birth of trade unions in Kenya that led to the formation of the Kenya Federation of Labour (KFL).

From 1952, Bro Tom Mboya, the General Secretary of KFL spearheaded the fight for the protection of workers’ rights. KFL was replaced by the Central Organization of Trade Unions –Kenya (COTU (K)) in 1965 through a presidential committee that recommended for the formation of a central body for all the trade unions in Kenya. Since then, protection of workers’ rights has been spearheaded by COTU (K) in conjunction with its affiliate trade unions. In fact, the welfare of workers has been well advocated for since 2001 to-date under the able leadership of Bro Francis Atwoli, the Secretary General of COTU (K).

1.3 An Overview of the Legal and Institutional Framework supporting Trade unions in Kenya

Kenya’s industrial relation is based on a fairly elaborate institutional and legal framework anchored on a tripartite set up. The set up brings together the government, workers (represented by trade unions) and employers (represented by employers’ organisation). The legal framework is founded on relevant ILO Conventions ratified by the country, the country’s Constitution, and domestic labour legislation.

On the other hand, the boundaries for trade union organization and recruitment, including guidelines on the categories of workers, who by nature of their work, qualify to join a trade union are defined by the Industrial Relations Charter of 1957 (revised in 1984).

Kenya has five sets of labour laws that govern industrial relations. These are the Employment Act (2007); the Labour Relations Act (2007); the Labour Institutions Act (2007); the Work Injury Benefits Act (2007); and the Occupational Safety and Health Act (2007). Other Acts that support effective industrial relations include the Employment and Labour Relations Court Act, 2011, the National Social Security Fund Act, No. 45 of 2013 and the National Hospital Insurance Fund Act, 1998 (Revised edition, 2012).                

1.4 Outline of the Report

This report is structured in four sections. Section one introduces the paper, giving a brief background of trade unions in Kenya while section two describes the methodology. In Section three, the study findings and discussions are made. Section four summarizes and concludes the report, making possible recommendations towards strengthening trade unions in Kenya.

2.1 Data and Data Sources

The study is based on both primary and secondary data. Secondary data was obtained through an extensive review of literature on trade unions and the labour market in general. The study reviewed labour laws, economic surveys and other relevant literature on trade union matters. Primary data was collected through self-administered questionnaires to 14 General Secretaries (or their representatives) of trade unions who are affiliated to COTU (K). Two telephone interviews were also carried out.

2.2 Sampling Framework

The International Trade Union Confederation, (ITUC-Africa) directed that at least 15 trade union leaders had to be interviewed. COTU (K) has 44 affiliates currently. The study however interviewed 16 trade union leaders or their representatives.

Random sampling was done after listing all the affiliates. Beginning from affiliate number one, every n+3 trade union was chosen giving 14. The last two considered the union that was not sampled but had a female General Secretary while the 16^th sample was COTU (K). Neither TUC-Ke nor any of its affiliates was interviewed on the basis of an assumption that they could not freely and accurately provide the required information based on the assumption of perceived rivalry between COTU (K) and TUC-Ke.

2.3 Data Analysis and Presentation

The collected data was fed into an excel spread sheet. The data was then analyzed quantitatively and qualitatively. The findings were presented in the form of descriptive statistics using tables.

2.4 Authenticity of the data for inference

The findings of this report are representative of the state of trade unions in Kenya and therefore useful for inference. The information was gathered from the relevant trade union leaders (General Secretaries) who are practitioners in trade union matters. Secondly, there was further verification of data during the interviews. Finally, sampling was randomly done without bias.

3.1 The Current State of Trade Unions in Kenya

3.1.1 Trade Union Membership and management in Kenya

Kenya has two federations, COTU (K) and TUC-Ke. There are about 50 registered trade unions, most of which (44) are affiliated to COTU (K) while a few such as the Kenya National Union of Teachers (KNUT), Union of Kenya Civil Servants (UKCS), Universities Academic Staff Union (UASU) and the Kenya Universities Staff Union (KUSU) affiliated to the newly formed Trade Union Congress of Kenya (TUC-Ke).

The sectors with the biggest trade unions include Agriculture; Whole Sale and Retail; Public Service. Among these unions, only 4 in the public sector are not affiliated to COTU (K). The affiliates of COTU (K) are shown in annex VI.

COTU (K) has an average membership of over 2.5 million distributed across all the sectors.  The estimated memberships to the sampled unions are shown in Annex I. Annex I shows that trade union membership is composed of about 50.5 per cent and 49.50 per cent male and female respectively. Moreover, the study shows that the youth constitute about 51.04 per cent while about 48.96 per cent of the total membership is adults. Some of the sectors such as agricultural sectors are female and youth dominated while other sectors such as engineering are male dominated. The study further established that the nature of the sector/work (manual or complex) determined the age and gender of the workers in that particular sector.

Some of the international bodies that some these unions are affiliated to include IndustriALL, Uni Global; IUF; ITF; PSI; TGWU; Wiego; Mamacash; Uni Africa and BWI.

3.1.2 Membership Tracking and Record Management

Over the last 5 years, the study shows that the trade unions under study have recruited about 29,517 members (8.66 per cent). On the other hand, the loss in membership over the same period is estimated to be 23,158 (6.79 per cent) members. The study established that gains in membership were attributed to constructive organising strategies employed by the unions. However, the loss in membership was due to massive retrenchment, outsourcing, contracting and unfair terminations that continue to rob the trade unions of their members.

The study established that most of the members of the trade unions are drawn from the formal sector (81.25 per cent) while only about 8.75 per cent are organized from the informal sector. None of the unions had recruited casual workers.

From the study, we established that the trade unions have a Check off System as well as a register through which they monitor and track their members. To ensure efficient tracking of the members, the union reviews monthly reports of terminations, dismissals, redundancies and recruitments including the check off systems. Through this process, the trade unions are able to effectively plan for their membership as well as their activities on a monthly basis.

3.1.3 Regulations: Trade Union Constitutions; Policies and Codes of Practices

The study found out that all the unions have their specific constitutions that guide their operations. The unions rely on the Industrial Charter and the labour laws for their day to day operations. These labour laws include the Employment Act 2007, the Labour Relations Act 2007, the Labour Institutions Act 2007, the Occupational Safety and Health Act 2007, the Work Injury and Benefits Act 2007 and the Employment and Labour Relations Court Act.

Through their constitutions, trade unions reported to have embedded principles of workers control and democracy. These principles are promoted through sensitization workshops and seminars as well as democratic participation during union elections,

All the unions hold their congress after every 5 years. The last congresses for all the unions sampled were held in 2016 between February and April.

The unions are structured in three levels. The structure of the leadership is shown in Annex II. However, just to mention, the shop floor is led by the shop steward while the Branches are led by the Branch Executive Committee/Council members while the national leadership is the National Executive Councils/Boards (NECs/NEBs) that oversee the operations of the union. The highest NEC/NEB has 34 members while the lowest has 6 members. At the branch level, the highest BEC/BEB has 14 members while one union has no official at the branch level. At the shop floor, the unions are represented by shop stewards except in one union where they are referred to as Chapter representatives. Most of the NECs/NEBs meet quarterly while others meet thrice annually unless there are issues to be addressed urgently. Similarly, the study has shown that most of the BECs/BEBs also meet quarterly unless there are critical matters to solve. At the shop floor, the shop stewards often meet with the workers to ensure there are smooth labour relations at the factory level.

These structures are very effective as they enhance flow of information from the shop floor to the national and backward. Moreover, the structures are very critical in grievance handling and dispute resolutions from the factory level thereby enhancing good industrial relations. The study established further that the structures promote democratic leadership and the principle of participation among workers right from the shop floor to the national level.

To facilitate the provision of services to their members, trade unions employ staff with relevant qualifications. The study established that the number of staff depended on the size of the union as well as availability of funds. In this regard and as shown in Annex II, the union with the highest number of staff has 62 staff members while one union has no staff due to limited resources.

Moreover, in terms of gender representativeness, the study established that 20 per cent of the unions have female chairpersons and General Secretaries while 40 per cent have female treasurers as shown in annex II.

Most of the unions have in their constitution Financial, and Administrative policies. However, the study established that most of the unions are yet to develop gender and youth policies to address the challenges that women and youth face as they increasingly engage in trade union activities and the labour market at large.                                                                             

3.1.4 Trade Union Services

In order to provide relevant services to their members, the study established that trade unions departments of Education and Training; Organising and Recruitment; Industrial Relations and Legal Matters; Accounting and Finance; Administration; Youth and Gender among others. These departments are critical in the provision of relevant services. The services offered by the unions include organising and recruitment; Grievance handling and dispute resolution; training and education; financial services and Sacco services; Negotiation of CBAs and legal services among others.

The main challenges facing trade unions in Kenya from the study include the interference with negotiation processes by the Salaries and Remuneration Commission (SRC); Delays and backlog of cases in the industrial and labour relations court; Limited financial and human resources; Resistance from employers who are anti-trade unionism and continue to outsource, contract as well as hire workers on casual basis; High costs of recruitment and sustainability of union activities; Increasing levels of retrenchment reducing membership; High costs of training and low levels of enforcement of labour laws by the government. These notwithstanding, some unions reported harassment of organising teams by the police upon incitement by some employers.

3.1.5 Organising and Recruitment by Trade Unions in Kenya

Most of the trade unions have organising policies, strategies and departments according to the findings. However, limited funds were cited as the main reason for lack of the organising policy. The study established that organising is the main stay of the unions.

The strategy employed by the unions in organising involves  mapping out potential member companies; assembling relevant information; establishing key contact persons; meeting with the potential members especially during lunch time, evenings, week-ends or any other time that does not compromise their duties as employees; Recruitment and signing of check off systems. Upon recruiting 50 plus one per cent of the workers as required by the law, the union seeks for recognition by the company in question. Once the recognition agreement is signed, the union initiates CBA negotiations by developing a proposal that is followed by a counter proposal by the employer. The negotiations culminate into a signed CBA that covers the terms and conditions of employment of the workers covered. For those not registered as members of the union, they are liable to pay service pay to the union since they benefit from the negotiated CBA. The union continues to be engaged in ensuring that there exist good industrial relations through constant education and training of its members as well as handling grievances and disputes. This strategy is effectively implemented albeit with challenges due to limited financial and human capital.

 As the unions carry out their mandate, the study established that most of the members fear victimization by their employers for engaging in union matters. Most of the workers were as well ignorant about labour laws that protect their rights. It was also established that the rate and level of implementation of labour laws by the government was very low causing a lot of hiccups in milestones that unions have made in improving the terms and conditions of employment. On the other hand, employers continued to use anti-trade union policies that discourage trade unionism such as victimization, coercion, casualization, contracting, outsourcing among other malpractices that deny workers the right to join or actively participate in trade union matters.

The study revealed that although all the trade unions have recruitment plans, lack of budgets constrain the implementation processes.  In the process of recruitment, workers were trained on labour laws, grievance handling and dispute resolution, occupational safety and health concerns as well as basic education on their role as workers and members of the trade unions.

From the statistics received through the study, most of the trade unions (about 53%)  have organized less than 10 per cent of their potential membership. About 33 per cent have organized between 10% and 30 % of their sectors while only 14% claim to have organized between 40% and 50% of their potential estimates. It is however worth noting that these figures are estimations based on no survey by the unions in question. The study therefore establishes the need for sector man power surveys to establish the correct trade union density in Kenya. Those organized are full time formal sector workers. This shows that trade unions in Kenya have not laid more efforts in organising informal sector. Only KUDHEIHA reportedly organized informal sector workers.

In order to retain their members, trade unions ensure that they offer better services through well negotiated CBAs and effective representation in grievance handling and dispute resolution mechanisms. Continuous monitoring and evaluation of the check off system and the voter register coupled with effective education and training offered to the workers continuously keep them attached to the unions consistently.

While seeking to enhance trade union density, the study sought for the sectors that could be better organized. The findings show that the informal sector that contributes up to 83 per cent employment opportunities in Kenya could offer a good opportunity for trade unions to grow their membership as well as deliver decent work to the sector.

Finally, the study revealed that organising and recruitment in trade unions are spearheaded by the National organising secretaries at the national level and supported by a team of organisers.

3.1.6 Campaigns by Trade Unions

Trade union involvement in campaigns domestically and internationally is as shown in Annex III.  The study showed that most of the unions engaged in campaigns against precarious work, outsourcing, contracting as well as violation of the rights of workers in general and women in particular. Campaigns were also mounted to promote decent work.

The study as well indicated that the campaign created a lot of awareness among the parties concerned. Just to mention, more members joined the trade union while illegal terminations due to outsourcing were stopped. And finally, it is worth noting that the Water Bill in Kenya was amended in 2013, spearheaded by KUCFAW.

Some of the federations that supported the campaigns according to the study include IndustriAll, ITF, Uni Global and PSI

3.1.7 Communication, Networking and Alliance building among trade unions in Kenya

The study established that the trade unions mostly use letters, mails, notice boards as well as phone calls to communicate with their members and leaders. To make the unions visible, trade unions invested in the use of campaigns, proper representation and negotiation of pro worker CBAs that effectively address their concerns as workers.

Some of the networks that the trade unions reported to have worked with include ILO, OATUU, WIEGO, Nile Basin, IUF, ITF, UNi Global, Uni Africa, PSI, IndustriALL, Education International, BWI, and TUDCN. Through these networks, more sensitization, training and recruitment have been carried out by the unions leading to greater empowerment.

3.1.8 Trade Union Participation in Social Dialogue and Collective Bargaining

Most of the affiliates of COTU (K) engaged in collective bargaining processes. The legal and institutional framework for social dialogue is tripartite in nature. It brings together the government, the employers and the trade unions to negotiate on terms and conditions of employment. Most of the unions have engaged in social dialogue through CBA negotiations as well as in dispute resolutions to enhance industrial harmony. Through the social dialogue set up, most unions have been able to negotiate their CBAs. Moreover, social dialogue campaigns focusing on social protection have as well been successful. However, it is worth noting from the study that the level of implementation of the legal provisions of collective bargaining continue to face bottlenecks as employers and the government fail to comply with some of the clauses as laid down in the CBAs. The latest invasion into the collective bargaining process is by the Salaries and Remuneration Commission (SRC) that has greatly interfered with negotiation processes by increasing the duration of the CBAs from two to four years as well as imposing several restrictions in the overall CBA negotiation processes.

As they negotiate, trade unions reported to concentrate on: better wages and salaries, allowances, social protection, Occupational Safety and Health as well as leave days. Through the negotiation processes, COTU (K) provides technical services to its affiliates.

3.1.9 Involvement of Trade Unions in Industrial Actions

Even though the study established that the legally required duration of a strike notice is 7 days, most of the unions that reported to have taken such industrial action gave more days (14 to 21 days) to allow for negotiations before embarking on the strikes. It is however worth noting from the study that there is no strike fund or any other supporting mechanism supporting strikes except the legality that lies on the notice. In this regard, strike has become the most expensive venture by the trade union. Being the last option in case of a dispute, trade unions have borne heavy costs such as non-deduction of the dues by the employers as well as failure by most of the affected employers to pay the striking employees. These costs meet the unions with a lot of hostility in maintaining union operations. A case in point was the failure by the Teachers Service Commission to deduct dues from the teachers while cases of non-payment of salaries could be associated with the doctors’ and teachers’ strikes. The study noted the worst outcome of strikes was the imprisonment of the doctors’ union officials.

The strikes in which the trade unions participated in are shown in annex IV.

3.1.10 Trade Union Involvement in Education and Training

The study established that 40 per cent of the trade unions interviewed had budget allocations for education and training at an average of 11.83 per cent of the total union budget. However, 60 per cent of the trade unions did not have budgets for education and training, citing limited funds to run the union activities as the main reason for lack of such allocations.

While carrying out education and training to the elected leaders and the workers, key priorities stated by the unions included labour laws, organising and negotiation skills and occupation health and safety. These areas were prioritized because they give the foundations that prepare the trade unionists in handling grievances as well as dispute resolutions aimed at promoting better industrial relations and harmony.

Having trained their leaders, trade unions engaged them in practice through handling of disputes and grievances. The paralegals attend to court cases to sharpen their legal efficiency. In this regard, trade unions have been able to monitor and follow up on already developed capacity within the unions rather than investing in new human resources.

3.1.11 Resource Mobilization and Financial Management among Trade Unions in Kenya

The study established that due to limited resources, trade unions employ staff at national levels only. The branches are therefore mostly run by the branch executive committee members who are elected. The number of staff at national level per area of work is as shown in annex V.

The main source of trade union income according to the study was union contributions that form almost 100 per cent of total revenue. Such dues were collected through the check off systems. However, monitoring of the systems were sometimes difficult when employers either desist from collecting union dues, collect but fail to remit the dues or terminate some employees without noting the union. In such cases, the unions incurred a lot of costs of follow ups.

Only one union, the Railways workers union reported to own a property through which they collect rent for use by the union. Moreover, solidarity support organisations barely contribute one per cent of the unions’ total income as they only support one off trainings and/or workshops in most cases.

It is worth noting that all the trade unions conducted Annual Financial Audits as a requirement by the Registrar of trade unions. This directive was confirmed by the study. In fact all the trade unions reported to have carried out their last annual financial audits for 2016 in March 2017 before the April deadline. The unions indicated that such reports were shared with the members when they needed them by making formal requests through the office of the General Secretaries.

3.2 CHALLENGES FACING TRADE UNIONS IN KENYA

The study has established that the main challenges facing trade unions today include:

1. Limited financial and human resources for the operations of the unions
2. Weak implementation of the labour laws as well as inefficient labour institutions. So many cases remained unresolved in the Employment and Labour Relations Court.
3. Disunity, splits and rivalry among trade unions and trade union leaders breaking the solidarity spirit
4. Anti- trade union Governance. The government has been slow in its dispute resolution processes as well as the enhancement of Alternative Dispute Resolution mechanisms. Many of the labour institutions lack capacity to perform their constitutional tasks as mandated, crippling industrial relations
5. Weak Trade union membership. As a result of outsourcing, contracting and massive retrenchment, many trade unions lose their members. Moreover, several multinational corporations as well as private sector employers are against unionisation of their employees                                                                                        

3.3 BEST PRACTICES BY TRADE UNIONS IN KENYA

Some of the best practices worth embracing from the study include:

1. Having a strong and well-structured leadership from the shop floor to the top management of the union
2. Establishing an effective and fully functional organising policy, strategy and team.
3. Continuously sensitizing union leaders and members through education and training on labour laws and industrial relations, including sector specific labour matters
4. Pooling relevant human and capital resources for effective running of the union operations

4.1 Summary

This study was able to establish the strengths and weaknesses of the trade unions in Kenya. The study sampled 15 trade unions and one trade union center. Interviews were carried out among the sampled unions. Through these interviews, information were collected on the current state of trade unions including: Trade union membership and management; Membership tracking and record management; trade union regulations; Services provided by trade unions; campaigns by trade unions; Communication, Networking and Alliance building among trade unions; Social dialogue and Collective Bargaining; Involvement of trade unions in industrial action; Participation of trade unions in education and trade unions and Resource mobilization and financial management of the trade unions.

The data collected was analyzed and presented quantitatively and qualitatively, drawing conclusions and possible recommendations that aim to strengthen trade union movement in Kenya.               

4.2 Conclusion

This study presents the current state of trade unions in Kenya, the challenges facing the trade union movement currently as well as possible recommendations towards a more viable trade union movement.

4.3 Recommendations

The study makes the following recommendations as necessary for the strengthening of the trade union movement in Kenya. 

1. Legal backing

The legal and institutional framework in which trade unions operate should be effectively monitored and evaluated to remove the bottlenecks that constrain positive trade unionism.

2. Willing government

The government of the day should put in place policies that are sensitive to and take care of the welfare of the workers. 

 3. Macro planning

Trade unions should mount strategic campaigns to increase their membership. Such campaigns should as well discourage any splinter trade union groupings and gender discrimination as well as encouragement of youth participation in trade union matters.

4. Organizational advantage

A unionization effort and/or campaign should be in force as was witnessed in china in 2008 in which a 100 -day unionization effort was adapted by All China Federation of Trade Unions (ACFTU). These unionization efforts saw trade unions intensify in china, including those companies that had vowed not to allow their workers join trade unions. Even multinational companies succumbed to the unionization efforts of ACFTU.

As such, tactical unionization efforts need to be adapted in Kenya aimed at spreading trade unionization across all the divides including the public servants and the disciplined forces in Kenya.

5. Organizational strategy

Trade unions ought to embrace organization strategies that make workers view trade union membership and participation as a basic need.  

6. Expansion of unionization

COTU (K) should shift its focus to the informal sector workers. The informal sector has a very large work force that can be tapped into in order to boost trade unionization in Kenya even as organising in the formal sector continues.

7. Trade union rights

Freedoms of association as well as the right to strike are at the centre of ensuring the achievement of social justice. In this regard, public and private sector workers ought not to be discriminated against. Instead, the right to freely belong to trade unions as well as participate in trade union activities should be upheld for both private and public sector workers at all costs

8. Trade union education and training

Starting from the shop floor level, workers and trade union leaders should be educated and trained on their roles and duties; labour laws; industrial relations; negotiation and communication skills; safety and health at the work place; gender and youth issues at the work place; organising and recruitment; grievance handling and collective bargaining as tools for well -founded trade unionism.

Republic of Kenya (1965). Sessional Paper No. 10 on “African Socialism and its Application to Planning in Kenya”. Nairobi:Government printer.

Republic of Kenya (1984).  The Industrial Relations Charter  Kenya Law reports

Republic of Kenya (2007).  Labour Institutions Act 2007. Kenya Law reports

Republic of Kenya (2007). “Vision 2030”. Nairobi. Government Printer.

Republic of Kenya (2007). Employment Act 2007. Nairobi: Government printer

Republic of Kenya (2007). Labour Relations Act 2007. Nairobi: Government printer.

Republic of Kenya (2007). Occupational Safety and Health Act 2007. Nairobi: Government printer

Republic of Kenya (2010). The Constitution of Kenya, 2010. Nairobi: Government Printer.

Republic of Kenya (2011).  The Employment and Labour Relations Court Act. Kenya Law reports

Republic of Kenya (2012).  The National Hospital insurance Fund. Government Printer

Republic of Kenya (2013).  National Social Security Fund Act. Government Printer 

Annex VI: Trade Unions in Kenya

Affiliates to Trade Union Congress-Kenya