HISTORY OF COTU(K)
The Central Organization of Trade Unions, COTU (K) is the National Trade Union Center in Kenya. COTU (K) was founded in 1965 upon dissolution of the Kenya Federation of Labor and the African Workers’ Congress (KFL – AWC). COTU (K) is registered and operates within the provisions of the Labour Relations Act, 2007 of the Laws of Kenya.
THE HISTORY OF THE LABOUR MOVEMENT IN KENYA
Like all nations, Kenya has been founded on the efforts of many people, institutions, organizations, corporations and professions. One of the foundations upon which the nation has been built is the Central Organisation of Trade Unions, COTU, the largest association of workers’ unions that has shaped relations between Kenyan employers and workers since soon after the country’s independence and in the process impacted on the pace as well as direction of Kenya’s economic development.
Fifty years after independence, Kenya has approximately two million workers in the formal sector more than 75 per cent of who belong to trade unions. Of the country’s 42 trade unions, 36 belong to COTU and they represent more than 1.5 million workers both in the public and private sectors of the economy. Whether through negotiations for better wages and terms of employment or through tougher measures such as court action or labour strikes, trade unions have shaped the relations between employers and employees. COTU has been their strongest common voice in those relations.
It has not always been like that. Kenya’s trade union movement evolved through difficult situations created by the British colonial government which persistently defended employers in order to prevent the rise of an organized labour movement. But towards the end of the 1930s, there was a slight change in policy. The colonial government allowed the creation of unions but in a very restricted and limited way as far their rights and operations were concerned.
The opportunity was seized by pioneers like Fred Kubai, Makhan Singh and Bildad Kaggia to start trade unions. In 1935 Makhan Singh at the request of Asians workers set up the Indian Trade Union which he soon broadened to embrace all races and trades. The union eventually became the Labour Trade Union of Kenya. By the late 1940s Kubai had set up the Transport and Allied Workers Union (TAWU) and Kaggia the Clerks and Commercial Workers Union.
By 1950, the active collaboration between Kubai and Singh led to the creation of the East African Trade Union Congress with Makhan Singh as secretary-general and Kubai as President. The two committed their congress to political objectives and with Singh’s self-avowed communism, the stage was set for confrontation with the colonial government.
First Industrial Strike
The first real serious industrial strike in Kenya was in Mombasa in 1939 by African Railway apprentices which turned violent and spread upcountry. The colonial government blamed the strike on the collaboration between Singh and African leaders such as Kubai, Kaggia, Jesse Kariuki, Joseph Kangethe and Jomo Kenyatta. Makhan Singh became a marked man and by 1951 he was arrested, tried for subversion and restricted to Lokitaung in the northern part of today’s Pokot County. Judge Ransley Thackery described Singh as
“a man of malignant influence and ill-will”.
Singh ended up being Kenya’s longest detainee, being freed only in 1961. That was after Kenyatta and the other freedom fighters, Kaggia, Kubai, Achieng Oneko, Paul Ngei and Kungu Karumba, who had been detained in 1953 had been released. Interestingly, it was Justice Thackery who tried the six at the infamous Kapenguria case, convicted them of organizing and managing the Mau Mau rebellion and sent them to detention in 1953.
By 1952 a number of other African trade unions were set up. Aggrey Minya got some of them to form the Kenya Federation of Registered Trade Unions with himself as secretary general. But with the declaration of a state of emergency in Kenya by the colonial government in October 1952, the KFRTU did not make much of an impression on the labour front. Many trade union leaders were detained allegedly because they were associated with the Mau Mau, Kubai and Kaggia being among them.
Thomas Joseph Mboya
It was into this void that Thomas Joseph Mboya stepped. He was secretary-general of the Kenya Local Government Workers Union, one of the KFRTU affiliate unions, which he had built up from a simple staff association when he worked as a health inspector for the Nairobi City Council. In 1953 he replaced Minya as KFRTU secretary general and in 1955 the name of the trade union was changed to the Kenya Federation of Labour (KFL). With nearly all the politicians detained, the KFL and its leaders now took on the forefront of the struggle for political freedom and workers’ rights.
One of the first major milestones in Kenya’s trade unionism was the Dockworkers Union strike of 1955. It paralysed operations at the port of Mombasa and presented the first opportunity for a trade union leader to successfully represent workers in the settlement of a strike. Mboya as KFL secretary-general negotiated on behalf of the Dockworkers and won them a 33% pay increase.
But this period also saw the rise of rivalry amongst labour leaders which almost destroyed the trade union movement as several splinter groups emerged. In 1958, Mboya’s deputy at the KFL, Arthur Ochwadda, set up the Kenya Trades Union Congress. Ochwadda and other critics of Mboya opposed his close ties to American and European trade union organizations such as the American Federation of Labour –Congress of Industrial Organisations (AFL-CIO) and the International Confederation for Free Trade Unions (ICFTU).
But Ochwada’s challenge was mainly personal. A different challenge to Mboya would arise after he formed the Nairobi Peoples Convention Party which he used to get elected to the Legislative Council in 1957 in the first direct elections of Africans to the country’s legislature. Two of his former allies within the KFL, Dennis Akumu and Ochola Mak’Anyengo, now accused him of aligning the KFL with the West against the non-aligned position which African leaders had taken on the then raging ideological cold war between western countries, led by the United States, and communist countries, led by the Soviet Union.
In 1962 Mboya became Minister for Labour in a new coalition government that brought together the two main African political parties – the Kenya African National Union (KANU) led by Jomo Kenyatta and the Kenya African Democratic Union (KADU) led by Ronald Ngala. In the process Mboya relinquished his KFL’s secretary-general’s post to his trusted lieutenant, Clement Lubembe who now became the object of opposition from the MakAnyengo-Akumu camp in the KFL.
On December 12th, 1963 Kenya gained her independence from Britain and Kenyatta became Prime Minister. Mboya became Minister for Constitutional Affairs in a government formed by KANU after the party had won the general election conducted in May that year. By December the following year, KADU had dissolved itself and merged with KANU before Kenya became a Republic on the first anniversary of the country’s independence. Kenyatta became the country’s first President, while Mboya was moved to the Ministry of Economic Planning.
The Creation of COTU (K)
Even though Mboya, Lubembe, MakAnyengo and Akumu were all KANU members, the rivalry within the KFL continued. In 1964 MakAnyengo and Akumu set up a splinter workers body, the Kenya African Workers Congress, which they affiliated to the non-aligned All Africa Trade Union Federation. The wrangling between the KFL and the new Workers’ Congress reached such a level that by the end of 1964, President Kenyatta was forced to set up an inter-ministerial committee to resolve the dispute between the two factions once and for all.
Lubembe Appointed Secretary General
The committee was chaired by the new Minister for Labour and Social Services, Eliud Ngala Mwendwa, and consisted of six ministers including Mboya. It recommended the dissolution of the two rival organisations and the creation of a new national labour organization—the Central Organization of Trade Unions (COTU) – which came into existed in 1965 under a consensus deal supervised by Kenyatta. Lubembe was appointed secretary-general and his arch rival Akumu became his deputy.
As in the case of the KFL, COTU brought together most of the country’s major trade unions. There was the Kenya Plantation and Agricultural Workers Union which was registered in 1963 as an amalgamation of several smaller union and which by 2005 had more than 200,000 members mostly tea, coffee and flower workers.
There was the African Posts and Telecommunications Staff Association of East Africa that was formed in 1955 but which later became the Kenya Posts and Telecommunications Union after the East African Community broke up in 1977. The name of the union would later change to Communication Workers Union, Kenya, after more players entered the country’s communications field.
And there was the Kenya Local Government Workers Union, Mboya’s old union, that was and still is the only organization whose membership cuts across all grades without industrial disquiet and conflict. Town clerks are members of the union but with limited participation in union activities.
Kenya National Union of Teachers (KNUT)
The biggest union in the country – the Kenya National Union of Teachers that was formed in 1957 by, among others, Samuel Ayany and Stephen Kioni – joined COTU in 1966. But the government would later force it and the Kenya Civil Servants Union to disaffiliate from COTU claiming that teaching and the civil service were essential services that should not belong to trade union organizations. The government feared that the enormous size of these unions could create a threat to industrial peace, particularly in the event of any united challenge from COTU and the public service unions.
The setting up of COTU was supposed to ensure harmony within the country’s trade union movement, but the respite was brief. Politics was still the driving force in all national issues. In the sole ruling party, KANU, there were serious divisions along ideological lines which soon started impacting on COTU’s leadership.
In KANU, Mboya was the leader of the conservative, pro-western wing of the party. Arraigned against him was Oginga Odinga of the pro-eastern socialist faction. The party’s ideological war would go on until 1966 when Oginga was forced to leave KANU and take up the leadership of a new party, the Kenya Peoples Union (KPU), which Akumu and Mak’Anyengo had joined. Lubembe seized the opportunity to suspend them from the KFL and not long afterwards the two were detained on grounds of being threats to national security.
With Odinga and his allies out of the way, the rivalry within KANU was now between Mboya’s faction and that of the so-called Kiambu group led by Attorney General Charles Njonjo, Kenyatta’s brother in law and minister of state, Mbiyu Koinange and Kenyatta’s cousin and foreign minister Njoroge Mungai. This group realized that one of Mboya’s political strengths lay in his continued control of the country’s trade union movement where his allies, led by Lubembe, still held sway. They were determined to rob Mboya of that power.
Akumu Defeats Lubembe
To succeed in their scheme, they needed someone good at doing battle within the trade union movement. Akumu was released from detention in May 1967. Within weeks he was challenging Lubembe’s leadership in COTU. In February 1969, he defeated Lubembe for the post of secretary-general while his allies swept all the seats on the COTU executive committee. Akumu’s control of the workers’ organisation became even stronger after Mboya was assassinated a few months later.
Akumu would, however, soon face a new opposition, this time based on tribe. Until now, the labour movement had been dominated by people from western and Nyanza provinces—people like Akumu himself, Mboya, Ochwadda, Lubembe and Mak’Anyengo. The only exceptions were the old freedom fighters Fred Kubai and Bildad Kaggia, as well as James Karebe of the old KFL and Stephen Kioni of the Kenya National Union Teachers who were all Kikuyus.
There was resentment from Kikuyu trade unionists against this western Kenya dominance and the tension that followed Mboya’s assassination only served to heighten the tribal factor in both the political and labour spheres. And things were not made any easier by the fact that most of the western and Nyanza trade union leaders, including Akumu, also doubled up as Members of Parliament.
Juma Boy Succeeds Akumu
For the five years in which Akumu led COTU the ethnic divide within COTU pitted this group of western and Nyanza leaders against what came to be known as the Karebe faction. Even after Akumu left the COTU for Accra, Ghana, in 1974 to head the continent-wide Organisation of African Trade Union Unity, the Karebe group continued to press for more clout within COTU. They accused AKUMU’s successor, Juma Boy, secretary general of the Kenya Dockworkers Union, of letting Akumu continue to run COTU from Accra.
The wrangling between Juma Boy’s faction and the Karebe group went on until February 1975 when, as had been the case during the Lubembe-Akumu rivalry of the KFL days, President Kenyatta summoned the two COTU factions and ordered by-elections for COTU office bearers to be conducted in his presence. As it turned out, Juma Boy’s faction emerged victorious, but in a move aimed at balancing out the interests of both factions, Kenyatta, who as President, had powers under the law to appoint COTU leaders, appointed Juma Boy secretary-general and Karebe his deputy
Even with Kenyatta’s balancing act of making Karebe deputy to Juma Boy, ethnic rivalry in COTU continued. It was only after Kenyatta died in 1978 and was succeeded by his former Vice President, Daniel arap Moi, that the Juma Boy group finally assumed dominance in the labour movement. From then on rivalry within COTU’s leadership would assume a less tribalistic and more political form.
Like Akumu before him, Juma Boy was also a politician, having been elected as MP for Kwale Central in 1969. His opponents accused him of using COTU funds on his political campaigns. In March 1979 one of them Mombasa businessman, Yunis Ismail, announced he would challenge Juma Boy for the Dockworkers Union secretary general’s post, a move which if successful would have forced Juma Boy out of COTU’s leadership because the COTU constitution required COTU’s secretary-general to also be head of his own union.
Ismail did in fact defeat Juma Boy for the Dockworkers Union post by 3,217 votes to 1,825 but Juma Boy managed to hang on to his COTU job by getting himself elected secretary-general of the Kenya Petroleum Oil Workers Union when an ally stepped down for him. And when COTU held its national election in September 1981, he defeated Karebe’s faction that was then known as the Labour Front, he and his allies capturing nearly all the seats on the COTU executive board.
However, Juma Boy did not savour his victory for long. His health had been deteriorating for some time. In 1983 he was forced to go to England for treatment, but died there after undergoing heart surgery. He would leave behind a legacy of major contributions to the country’s labour movement, the greatest of them being the Tom Mboya Labour College at Kisumu.
Tom Mboya Labour College
The idea of a training college for trade unionists was part of the mandate of COTU when it was founded, but it was during Juma Boy’s tenure as secretary-general that construction of the college, which would later be named after Mboya, started. Funding was hard to come by and work on the college stalled at one stage but through Juma Boy’s fundraising efforts abroad and a levy on affiliate member’s unions which was authorized by the government in November 1976, COTU managed to raise KShs.20 million to construct the college. The College was officially opened on 14th January 1983 by President Moi..
The Tom Mboya Labour College opened its doors to its first students in 1984 and gradually developed a curriculum that eventually earned it registration by the Ministry of Higher Education Science and Technology to offer a Diploma and Certificate in Information Technology as well as in Business Administration. There are plans to upgrade the college to a level where it will offer degrees in trade union related courses.
Justus Mulei Succeeds Juma Boy
Juma Boy’s successor at COTU, Justus Mulei, started his term as the Moi government, reeling from the 1982 abortive coup attempt, was reasserting itself through tough measures aimed at limiting any kind of challenge or opposition. In 1984 the former powerful attorney general Charles Njonjo, was forced out of his Cabinet post as Minister for Constitutional and Home Affairs, after he was accused of plotting to overthrow Moi’s government.
One-Party State; COTU subservient to KANU
Joseph Mugalla Takes Over COTU
There would soon follow a spate of expulsions of Njonjo’s allies from KANU. By the time Mulei handed over COTU’s leadership to Joseph Mugalla in 1987 the country’s constitution had been amended to make Kenya a one-party state with KANU as the sole party. Thereafter KANU would have control over virtually every aspect of public life, including the trade union movement. Indeed, in 1990, COTU was officially incorporated into KANU and for a while all trade union affairs consequently became subservient to KANU interests.
Thus, when opposition to the one-party state began to manifest itself through public demonstrations, COTU was firmly behind KANU. In July 1990, it condemned the calling of the Saba Saba rally that opposition leaders had planned to hold at Kamukunji Grounds in Nairobi to push for a return to multi-party politics. COTU was silent when some of the opposition leaders – Kenneth Matiba, Charles Rubia and Raila Odinga – were detained by the Moi government for their defiance.
Split in COTU
But not all COTU members supported COTU’s alignment with KANU. In December 1991, after Mugalla was re-elected secretary general, 15 unions, led by the secretary-general of the Kenya Quarry and Mine Workers Union, Wafula wa Musamia, announced they were leaving COTU. The breakaway unions included some of the most powerful in COTU – the Union of Posts and Telecommunications Workers, the Kenya Petroleum Oil Workers Union, the Kenya Sugar and Plantation Workers Union, the Transport and Allied Workers Union, and the Kenya Union of Domestic, Hotel and Allied Workers.
The breakaway unions would later form what they called the National Congress of Trade Unions. But that did not affect COTU’s stance on politics, and in any case, the National Congress was denied registration and in due course collapsed.
COTU opposed calls by opposition politicians for a national strike to press for the release of political detainees, with Mugalla claiming that such as strike could lead to lay-offs. In this he was supported by powerful trade unions such as the Union of Posts and Telecommunications Workers and the Railway African Union. But despite COTU’s stance on the matter, many matatus went on strike on April 2nd, 1992 paralysing transport in Nairobi and Kisumu. Youths had running battles with the police and by the end of the day 83 had been arrested. That year COTU supported KANU during the general election, the first multi-party polls in Kenya since 1969. But the election would mark the end of close relations between COTU and KANU.
The election saw Moi retain the presidency against challenges from an array of opposition leaders, including Oginga Odinga, Kenneth Matiba and Moi’s former Vice President Mwai Kibaki. KANU ended up with a majority of seats in Parliament but when Moi formed his government, Mugalla was upset that COTU and its political allies were sidelined.
First Nationwide Strike
In April 1993, Mugalla called for a 100 per cent wage increase and the sacking of the Minister for Finance, George Saitoti, whom the workers blamed for the country’s economic woes. More than 20 unions attended a meeting of secretaries-general and shop stewards at COTU headquarters in Solidarity House, Nairobi, and backed Mugalla’s call for a nationwide strike if their demands were not met. COTU’s call for a nationwide strike was partly to protest the government’s implementation of the structural adjustment programme that the World Bank and the International Monetary Fund were imposing on third world countries as a condition for continued aid. COTU wanted a general wage increase to offset the impact the structural adjustment programme was having on employment and purchasing power in the country.
The government declared the intended strike unlawful and Moi skipped May Day celebrations that year, the first time since independence that a president had not joined workers on this important day. He was represented by his Minister for Labour, Phillip Masinde, who was forced to walk out of the meeting when he was booed by workers for announcing a 17% pay increase in stead of the 100% that COTU had demanded. The strike COTU had called went on and for two days and in many urban areas financial transactions were hampered and people could not go to work due to lack of public transport.
Attempted Coup in COTU
Mugalla was later arrested and charged with inciting workers against the government, but he was set free when the government realized it had no case for him to answer. Nevertheless, the government was determined to contain Mugalla. With its encouragement, a clique within COTU, led by Johnson Ogendao, called an unauthorized governing council meeting at the Kenyatta International Conference Centre in Nairobi and announced it had ousted the Mugalla leadership. Without waiting for the normal seven-day period to verify the so-called elections, the Registrar of Trade Unions, Omondi Mbago, immediately registered the new COTU officers.
Through COTU’s lawyer Lee Muthoga, Mugalla and his allies went to the high court where Justice Frank Shields ruled in their favour, directing Mbago to deregister the Ogendo faction. When Ogendo and his group appealed against the high court ruling, the appeal court which consisted of justices Evans Gicheru, Matthew Guy Muli and Akilano Akiwumi, upheld Justice Shield’s ruling. None of these developments stopped the government from implementing the World Bank/IMF structural adjustment programmes despite its dire consequences. By the late 1990s Kenya was facing its worst employment crisis since its independence. Thousands of workers were retrenched or arbitrarily sacked in both the public and private sector.
Biting Economic Strife
Things would get worse from July 2000 on when the Kenya government, at the insistence of the World Bank and IMF and amidst opposition from trade unions, started implemented a four-phase retrenchment programme intended to shed off 30 per cent of its bloated workforce. By June the following year the government had retrenched a total of 42,000 employees at a cost of $99 million which was supposed to give the government a saving of $38 million a year.
The difficult business environment would force the hard-hit private sector to follow suit, retrenching or laying off thousands of workers. A total of 120 Kenyan firms in the private sector folded up citing high taxation, poor infrastructure and insecurity, while close to 100 were placed under receivership. A good number of multinationals also moved their manufacturing units to other countries of the Common Market for Eastern and Southern Africa (COMESA) trade bloc. All this left thousands of workers jobless, but it also left COTU reeling from the effect of reduced membership and diminished credibility in its role as spokesman for workers. With fewer than 30 affiliate member’s unions, COTU’s operations became severely curtailed due to cash flow problems. Its monthly remittances fell to about KShs 1.5 million from 4.5 million in previous years. At one time the Ministry of Labour hauled COTU to the Industrial Court over eight months’ unpaid salaries to employees of COTU’s Tom Mboya Labour College.
COTU’s problems mirrored others that Kenyan trade unions in general were facing. The retrenchment of workers that started in 1993 had the effect of reducing the number of union members, By the year 2000 total membership of the COTU affiliated unions had gone down to about 400,000, half of what it was before the retrenchments which started.
These problems gave rise to a tendency by some civil society groups to enter the area of labour relations on the pretext of promoting workers’ human rights and seeking to represent workers without a mandate from those very workers they claimed to represent. Such was the case in the 1990s when NGOs were at the forefront of agitation against poor working conditions in the country’s flower industry and the Export Processing Zone. Trade unions have blamed such civil society groups for the increasing division in industry unions.
The retrenchment of workers that Kenya experienced in the 1990s also had the effect of weakening the traditional strike weapon that trade unions have used in defence of their members’ rights.
The Kenya Federation of Labour and its successor, COTU, were not directly involved in many of these strikes because labour disputes were and still are generally the preserve of the relevant unions. Most of the strikes during this period arose from disputes over dismissals, abusive management practices, interpretation of agreements, recognition of unions and wage increases. For instance, the Kenya National Union of Teachers went on strike in late September 1962 to demand, among others, a KShs 400 per month minimum salary for T3-level teachers and a unified teaching service. This was actually the first effective strike by Kenyan teachers. It paralysed learning in all primary, intermediate and most African secondary schools in the country and ended only after a peace pact had been mediated by Tom Mboya more in his capacity as a former unionist than as the Minister for Labour.
The Industrial Court
The first major strike after COTU was established came in August 1967 when the Kenya Chemical and Allied Workers Union went on a two-day strike over the grading system for employees. The short-lived strike ended when the firm agreed to have the dispute arbitrated by the Industrial Court that had been established in 1964 to help reduce the number of strikes in the country. Indeed, one way COTU got involved in many strikes was through its key role in the establishment and operation of the Industrial Court
The Industrial Court has its origins in the Industrial Relations Charter of 1962, a major landmark in Kenya’s labour relations, established by the government, the Federation of Kenya Employers and the Kenya Federation of Labour, then under Clement Lubembe. The Charter spelt out the responsibilities of management and unions and their respective obligations in the field of industrial relations. Though it has since been revised three times (the last in 2001), it remains the basis for social dialogue and labor relations in the country.
In February 1964, in accordance with the Industrial Relations Charter, the government, employers and workers drew up what came to be known as The Tripartite Agreement that established ‘an Industrial Court…to which all disputes unresolved by voluntary negotiating machinery would be referred for arbitration’. The court was later given statutory recognition by the passage of the I964 Trade Disputes Act.
At the beginning, the Industrial Court consisted of a chairman (appointed by the Chief Justice), one independent member (appointed by the Minister of Labour), and one representative each from the unions and the management. The composition of the court would change later as the Trade Disputes Act was amended to cope with increasing volume of work and a changing labour and political environment. But the court remained, and still is, an arrangement for amicable arbitration of disputes between employers and workers.
The Minister of Labour had to certify that all other available settlement procedures had been exhausted before the Industrial Court could hear a dispute. In most cases the employer was represented by the F.K.E whereas the employees were represented by the general secretary of the union and not by a COTU. The practice of the Court was to have all cases heard by the chairman and two members.
Clement Lubembe is credited with not only having played a major role in the formation of the Industrial Court but also in successfully lobbying for the appointment of Saeed Cockar as the court’s first chairman. And much of the success of the Industrial Court stems from the high esteem in which Cockar, was held by both management and unions. During the more than 36 years in which he headed the court, he made many rulings that in the eyes of certain employers and the government appeared to favour labour unions, but by the time he stepped down from his post, it was acknowledged by all parties that he had succeeded in establishing a firm foundation for resolving disputes between workers and employers that is today the envy of many developing nations.
And what made Cockar’s position even more powerful was that, until the setting up of the Industrial Court of Appeal in 2007, the rulings of the Industrial Court were final. They could not be appealed against in any court of law.
The Industrial Court’s mandate went beyond arbitrating on disputes between workers and employers. In March 1982, the Industrial Court had to arbitrate between two claimants to the post of general secretary of the Kenya Engineering Workers Union. At loggerheads for several months now were Justus Mulei, the then current holder of the post and his predecessor Charles Mboya. In its ruling, the Court sided with Mulei and blamed Mboya for the union’s delayed national elections that gave rise to the dispute. Cocker went further and recommended that the Kenya Engineering Workers Union revise its constitution in order to avoid such disputes in future.
Cockar’s commitment to the welfare of workers would earn him much praise from trade union leaders. During Labour Day celebrations of May 1983 COTU secretary-general Juma Boy lauded him for giving the Kenya Industrial Court a national as well as international reputation as a credible instrument for resolving disputes between workers and employers. He assured him of COTU’s unstinting support.
In late 1988 Cockar made a ruling that may have precipitated the government’s move to establish another industrial court. He sided with the Dock Workers Union in a dispute with the Kenya Ports Authority in which the union had gone to the Industrial Court seeking better medical services, travel and leave allowance, overtime payments, better working hours and shorter probation periods. The dispute followed a decision by the government three years earlier to merge Kenya Ports Authority with the Kenya Cargo Handling Services, a merger that did not take into consideration the different working terms of the two organizations.
Cockar’s ruling averted a major stand-off between the union and Ports Authority that threatened to lead to a strike at the Port of Mombasa with the potential of crippling the country’s economy.
A few months after Cockar’s ruling President Moi announced that the government would soon establish an additional industrial court to help speed up the hearing of industrial disputes and also ease the court’s considerable backlog of pending cases. Tom Owuor, head of the FKE welcomed Moi’s announcement, but hoped that the government would establish a judicial body with appellate powers. Whereas employers had confidence in Cockar and the existing Industrial Court, he said, they wanted an appeal mechanism that would provide what he called a safety valve in the event that an award prejudicial to an employer or union or to the economy was made. His views were opposed by COTU secretary-general Joseph Mugalla who said appeals would be too expensive for workers.
The second Industrial Court of Kenya was established by Parliament later that year and Justice Charles Chemuttut was appointed the first judge of the new court in January 1989 which formally started hearing in April that year.. Like Cockar’s Court, the new court would also act as ‘final arbiter of all industrial disputes brought before it’. Its ruling would also be final and could not be appealed in any other court in Kenya. It would take another two decades before a real Industrial Court of Appeal would be set up.
The establishment of Cockar’s Industrial Court helped to reduce the number of strikes which fell from the average of about 230 a year to about 100 in the 1965-70 period. The court was able to resolve disputes relatively quickly, taking about three to nine months to do so. Consequently, the 1970s and 1980s saw little strike activity mainly because Kenyan workers became willing to go through the lengthy court process rather than resort to strikes.
But strike action and industrial strife would rise to the fore again in the late 1990s after the break of KANU’s stranglehold on the trade union movement, the agricultural sector experiencing the highest incidence through action by the Kenya Plantation and Agricultural Workers Union then headed by COTU’s director of communications Francis Atwoli.
KANU’s stranglehold on trade union activities would be broken for good when in 2000 the US government pressured the KANU government to de-link itself from COTU for Kenya to benefit from the American Financed African Growth and Opportunities Act (AGOA) that enables exports from Kenya and other African countries to penetrate the competitive US market. And in the same year the International Labour Organisation threatened to blacklist Kenya if the government did not allow the labour movement to operate freely and independently.
Francis Atwoli of KPAWU Elected COTU Secretary General
All this was happening as COTU officials prepared for their next election that were to be held in August 2001. After serving as secretary general for three terms, Mugalla had announced he would not be seeking re-election. His withdrawal left Deputy Secretary-General Boniface Munyao and chairman-general Peter Muthee, who was also secretary- general of the Kenya Railway Workers Union, as the main contenders for the top post. But also interested were the Kenya Guards and Allied Workers Union chairman Joseph Mujema and the National Chairman of the Kenya Union of Journalists, Ezekiel Mutua. In the end, though, it was Francis Atwoli of the Kenya Plantation and Agricultural Workers Union who got elected COTU secretary general having secured the backing of 26 of the organization’s 29 affiliate unions.
One of the resolutions that Atwoli as secretary general got COTU to pass was that the labour movement should join others who were agitating for an end to the KANU regime. Thus as the 2002 general election drew near, COTU worked closely with the opposition National Rainbow Coalition (NARC) whose candidate Mwai Kibaki was pitted against KANU flag bearer Uhuru Kenyatta in the presidential race. Partly because of the support NARC and Kibaki got from trade unions and workers across the country, they were able to end KANU’s 40-year old rule following that year’s general election.
Quest for a New Constitution
The change of government called for a new way of doing things and one of the areas that needed change was the country’s constitution and laws under which Kenyans had been governed since independence. COTU was part of a tripartite task-force that attorney general Amos Wako appointed in May 2001 at the behest of the International Labour Organisation (ILO) to review the country’s labour laws. It so happened that at that time Atwoli was also a member of the ILO board.
Among the main objectives of the tripartite taskforce’s review were to extend protective labour regulation into the informal sector; to merge and redraft the different labour acts in order to produce a user-friendly and comprehensive labour legislation; to eliminate the remaining colonial heritage in employment relations and contracts; and to introduce an Industrial Court of Appeal to overcome contradicting jurisdiction between the High Court and the Industrial Court. The tripartite taskforce officially handed over five new draft texts to Attorney General Wako in April 2004 most of which were enacted in 2007 and 2011
Soon after he was elected president, Mwai Kibaki outlined a programme of great interest to COTU. His government was going to create 500,000 new jobs during its first 100 days in office. Primary education would be free. New housing units would be built. And there was going to be a new constitution.
But as often is the case in politics, noble intentions do not always translate into action. True free primary education was instituted in the country a year after the general election. But weeks and months went by, and nothing seemed to be happening that would translate the pledge of 500,000 jobs into reality. If anything, by 2004 Kenya was in its worst employment crisis since independence from the British in 1963. Thousands of workers were being retrenched or arbitrarily sacked in both the public and private sectors.
And there was no better news on the constitutional front. COTU was among the first pressure groups to push for a new constitution. It was one of the organisations that constituted the Constitutional Review Committee that Kibaki appointed under the chairmanship of Professor Yash Pal Ghai to draft a new constitution. After months of meeting at the Bomas of Kenya centre in Nairobi, Ghai’s team came up with a draft that was to be put to a national referendum. But to COTU’s and many Kenyans’ dismay, Kibaki had the document altered before it went to the referendum. The consolation for COTU and other supporters of the Bomas draft was that the public ended up voting against Kibaki’s draft when it was put before a referendum in 2005.
Despite the 2005 Bomas draft debacle COTU remained steadfast in its fight for a new constitutional dispensation in Kenya. It was the first national organization in 2007 to warn the government that there would be skirmishes and violence if Kenyans went to that year’s general election under the existing laws. And COTU’s fears would turn out to be well-founded when more than 1,000 people lost their lives and half a million were rendered homeless by the violence that followed the declaration of Kibaki as the winner of the 2007 presidential election against the protests of supporters of his main opponent, Raila Odinga.
The 2007/2008 post-election violence ended in much soul searching on the part of Kenyan leaders. Through the mediation of former United Nations secretary general Kofi Anna, they were able to agree on a peace formula that led to the setting up of a grand coalition government in which Kibaki retained the presidency and Odinga became Prime Minister. The leaders also agreed on a four-point agenda aimed at eliminating the conditions that gave rise to the post-election violence. By far the most important goal of the agenda was a new constitution.
Again COTU would be among the earliest campaigners for the draft constitution once it had been drawn up by a committee of experts headed by Nzamba Kitonga that Kibaki, in consultation with Prime Minister Odinga, had appointed. The draft would not go to a national referendum until 2010 but by October the previous year Atwoli was leading a COTU campaign in different parts of the country drumming up support amongst workers for the new constitution. COTU had very good reason for supporting the new constitution for it decreed the creation of a specialised court with the status of a high court to deal with employment and labour relations not just for good order and administration, but to guarantee the rights of employers, employees and regulators. The first 12 judges of the court were sworn in by President Kibaki in 2011 barely a year after the constitution had been approved by an overwhelming majority in a national referendum.
Struggle for National Social Security Fund (NSSF) and the National Hospital Insurance Fund (NHIF)
But even as COTU fought for constitutional reforms, it had a massive battle still to fight in respect of two national institutions in which, as is the case with the Industrial Court, COTU played a major role – the National Social Security Fund (NSSF) and the National Hospital Insurance Fund (NHIF). Both Funds had been set up more or less at the same time as COTU and operated for a number of years without much controversy. But by 2000 both had run into trouble due to mismanagement and corruption and COTU would be one of their strongest critics.
Though the NSSF was set up to administer a provident fund scheme for all workers in Kenya, it initially operated as a government department under the Ministry of Labour COTU had little say in how it operated. As its membership grew and its operations became complex, the NSSF Act was amended in 1987 to transform it into an autonomous State Corporation. More active and structured COTU involvement came in 1988 when the Fund started operating under a Board of Trustees made up of representatives from the three key stakeholders: the government, COTU, and the Federation of Kenya Employers.
Like many state corporations under the Moi government during the 1990s, the NSSF would get involved in scandals and ill conceived investments. Even with COTU sitting on the NSSF board, the fund lost KShs 2.1 billion that it had invested in about 10 financial institutions that collapsed during the period in which Mugalla was COTU secretary general It would lose a further KShs 1.2 billion in 2009/2010 after purchasing shares through the investment company Discount Securities which later collapses.
COTU also had little initial input in the setting up of the National Hospital Insurance Fund as a department under the Ministry of Health with the core mandate of providing medical insurance cover to all its members and their dependents. But, as in the case of the NSSF, COTU would end up with a representative on the NHIF board when the fund was later made into a government parastatal.
And like the NSSF, the National Hospital Insurance Fund too would eventually suffer from mismanagement and corruption that ended up eating into the fund’s ability to pay the medical claims of its members. In 2010, the NHIF announced new rates for its members in order to keep up with demand. COTU opposed the new rates because their impact would be felt most severely amongst lower income workers. It went to court to try and stop the implementation of the new rates, and when it lost the case at the high court level, it moved to the Court of Appeal. Atwoli would later threaten a general strike over the matter arguing that the problem of the NHIF stems from corruption in the fund.
It was a threat that had to be taken in the context of other threats that COTU and a number of its union members had made in the previous few years. Atwoli’s Kenya Plantation and Agricultural Workers Union was in 2007 able to get 10,000 workers of Unilever Tea Kenya plantations in Kericho to go on strike for two weeks over wage increase. It was one of the biggest and most effective strikes by a COTU member union since the 1990. It ended with Unilever agreeing to pay an 8% increase in wages, half the 16% increase the union had demanded.
Even more effective strikes for workers’ pay increases would be staged by the Kenya National Union of Teachers. The latest of them staged in September 2012 paralyzed public schools for nearly three weeks and ended only after the government had offered to pay the teachers a total of KSh 13.5 billion to meet their claims.
But whether COTU could manage similar successes in respect of its threat to call a national strike if NHIF rate increases were implemented, remained uncertain. In December 2011, Atwoli called for a 10-day strike by matatus and buses to press for a 30% reduction in fuel costs which had escalated to the extent prices of basic commodities had risen dramatically. The strike did not take off because the transport sector was divided over COTU’s call. Any call for a national strike over the Kenya National Hospital Insurance rate increases, or indeed for any other such national action, would need adequate preparation and consultation with most stake holders.
What is not in doubt, however, is that in the over fifty years in which COTU has been in existence it has made an enormous contribution to the development of the Kenyan nation through its unstinting defense.