HAKI ZA MFANYIKAZI WA KENYA NI WAJIBU WETU

complaint colour for cover Kiswahili

Kwa kipindi cha miaka mingi, Kituo cha Sheria wamepokea malalamishi mengi kutoka kwa wafanyakazi kuhusiana na kanuni na masharti ya uajiri.
Tumeona kuwa mfanyakazi Mwanakenya wa kawaida anakosa ufahamu kuhusiana na haki zake kama mfanyakazi. Tumeona vilevile kuwa waajiri wengi vilevile hawafahamu majukumu yao kwa wafanyakazi wao.
Kijitabu hiki kimeundwa kwa ajili ya wafanyakazi, waajiri na pia yeyote yule ambaye anataka kufahamu na kuelewa sheria jinsi ilivyo humu Kenya kuhusiana na mahusiano ya utenda kazi.
Ni matumaini yetu kuwa kijitabu hiki kitawasaidia wafanyakazi na waajiri pia kufahamu vyema zaidi na kuzilinda haki za wafanyakazi.
Habari iliyoko kwenye kijitabu hiki imekusanywa kutoka kwa sheria za utenda kazi za 2007, ambazo zilibatili na kuchukua nafasi ya zile sheria za 2003.
Baadhi ya sheria za 2007 tangu wakati huo zimetangazwa kuwa haziandamani na Katiba, jambo ambalo linaonyeshwa kwenye ufupisho wetu.
kutambua haki yako ya uajiri ni wajibu wako. Ili kuweza kujisomea nakala yako popote ulipo bonyeza hapa . http://kituochasheria.or.ke/gallery/publications/kiswahili-publications/

KITUO TEAM

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KNOW YOUR LABOUR RIGHTS

complaint pic cartoon

Labour rights is one of the core thematic areas that Kituo Cha Sheria (Kituo) operates in pursuit of their vision of a just and equitable society. This has been through legal advice and litigation as well as through policy advocacy and education. Kituo continues to receive numerous complaints from workers regarding their terms and conditions of employment. It is Kituo’s experience that the ordinary Kenyan worker lacks basic knowledge about his or her rights as a worker. Similarly employers are equally unaware of their obligations to their workers. This booklet is designed for workers, employers as well as anyone else who wants to know and understand the law in Kenya as it relates to labour and labour relations.

In the year 2007 there was a review of the national labour laws which had been a concern to both the Kenyan public and the Government for a long time. This arose out of tremendous changes experienced in the local labour market such as; structural adjustments, liberalization of the economy and technological innovations. The review was aimed at ensuring the laws were responsive to contemporary economic and social changes as well as achieve a new set of reformed updated labour legislation through a coordinated consultative process.

The following six (6) core labour statutes were comprehensively reviewed and repealed in that process.

1) The Employment Act, Cap 226;

2) The Regulation of Wages and Conditions of Employment Act, Cap 229;

3) The Trade Unions Act, Cap 233;

4) The Trade Disputes Act, Cap 234;

5) The Factories and Other Places of Work Act, Cap 514; and

6) The Workmen’s Compensation Act, Cap 236.

After that review exercise, 5 new pieces of legislation were enacted. These were:

1) The Employment Act, 2007

2) The Labour Relations Act, 2007 The Kenyan Worker and the Law 3

3) The Occupational Safety and Health Act, 2007

4) The Work Injury Benefits Act, 2007

5) The Labour Institutions Act, 2007

Each Act incorporated the principles of the 1998 ILO Declaration on Fundamental Principles and Rights at Work; thus ensuring the basic human values that are vital to our social and economic development. The Right to Work is catered for in Kenyan laws.

Article 41 in the Constitution of Kenya 2010 on Labour relations and the establishment of the Industrial Court through the Industrial Court Act No. 20 of 2011 with the same status as the high Court, further enforces and guarantees labour rights providing a better environment for pursuing labour Cases. Kituo urges for vigilance and implementation of labour laws.

It is Kituo’s hope that this booklet will help workers and employers alike to better know, understand and protect workers’ rights and labour law. Click this link http://kituochasheria.or.ke/gallery/publications/english-publications/ to download the booklet.

KITUO TEAM

Securing the rights of Internally Displaced Persons through the IDP Act

IDP-ACT-BOOKLET-COVER

The resultant skirmishes of the 2007 disputed presidential elections in Kenya, popularly the 2007/2008 Post Election Violence (PEV) – had a devastating effect to the citizens of Kenya. The period went down to the Kenyan history as having the largest internal displacement of its population. This was majorly fuelled by the tribal and ethnic polarization which has over time determined the political direction of Kenya. It was coupled with the struggle and fight for resources, especially land. The Habitat for Humanity- Kenya puts the number of displaced persons to be 630,000. Whereas after displacement some remained in camps, others chose to integrate with communities.

The Internally Displaced Persons (IDPs) continue to face a lot of challenges. These include; deplorable living conditions, health problems, and lack of compensation for lost property and livelihoods. Despite the government’s efforts to look into these issues, IDPs, human rights organizations and the international community have raised concerns on lack of transparency and corruption in the IDP profiling and resettlement process. Further, peace and reconciliation efforts across the country have been inadequate. In addition, integrated IDPs and persons displaced by flooding, evictions, resource-based conflicts and ethnic clashes in 1992 and 1997 have largely been ignored by the State.

Despite a cry from the IDPs and recommendations from various sectors to the Government to undertake an inclusive and public IDP re-vetting exercise, to provide and support all integrated IDPs, to extend IDP resettlement programme to include historical IDPs and squatters, to accelerate payment of monies to remaining IDPs and fast track the adoption of the National IDP policy and legal framework, less has been done. Often, an inadequate financial resource has been forwarded as the reason for inaction.

It is on this note that Kituo Cha Sheria embarked on empowering the IDPs to realize their rights through the provided legal provisions and mechanisms. One such law is the Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act, 2012 (IDP Act 2012). This legislation provides for the definition of IDPs and the guiding principles of prevention, protection and assistance. It also stipulates duties and responsibilities of both levels of governments owed to the IDPs among others.

The simplified and translated booklet of the IDP Act, 2012 will be insightful to both the IDPs, both levels of Government and stakeholders to the realization of justice for IDPs. For more information on the IDP Act ( Swahili and English Versions) click on this link: http://kituochasheria.or.ke/gallery/publications/english-publications/

Kituo Cha Sheria.

PROTECTING CONSUMER RIGHTS: KITUO CHA SHERIA SUES EQUITY BANK

 

Courtesy
Courtesy

Thin Sim Technology
Thin SIM technology entails overlaying the Equity Bank Sim card on a pre-existing one belonging to another firm and using it for phone services.

Equity Bank introduced the paper- thin SIM card to help its customers access the bank’s mobile money service without needing to use dual – SIM phones. The SIM cards consist of 0.1 millimeter thick film that can be layered on an active side of customers’ original SIM cards, without affecting the customers’ original service providers’ network reception. If called on an Equity line you can pick it and if they call your other network, you do the same. Basically, your phone becomes a dual sim card, even it has only one slot.

Why is Kituo suing Equity Bank?
There have been concerns that the Thin SIM card will compromise the security of other mobile subscribers.
Kituo is before court seeking an order to quash the decision of the Communication Authority of Kenya allowing for the rolling out the Thin SIM technology.

Kituo argues the Thin SIM Technology is vulnerable to interception or interruption of communication or data relating to the primary SIM (that of a mobile services provider) of the members of the public. The said Thin SIM technology entails overlaying a SIM card on an existing SIM card. There lies the risk of contamination of data or transmission of private information or account details in the existing SIM card by a third party who could not be party to a relationship between an existing SIM card user and a mobile banking services provider.

Without certainty of the security of customers’ private information and verification of mitigation measures, members of the public subject to Thin SIM Technology are vulnerable to risks resulting from third parties’ to among others: observing, recording and divulging PIN details; initiating, intercepting, manipulating and/or blocking communications including voice calls, SMS, USSD, SIP calls and web sessions and/or destroying SIM toolkit instructions; executing actions without the permission or knowledge of a mobile user; recording and disclosing mobile user’s location information; accessing a SIM card and changing configuration settings without a customer’s authority.

However all necessary security precautions that may be made, there is a danger of a malicious third party assessing a customer’s data using malware. The third party can potentially download a “Trojan” application to the overlay SIM and access a customer’s sensitive data.

Why does this matter interest Kituo?
Article 31 of the constitution of Kenya protects the right to the privacy of every person including the right not to have information relating to their family or private affairs unnecessarily required or revealed, or the privacy of their communications infringed. The decision to roll out the Thin Sim technology is in blatant disregard of the Kenya Information and Communication Act and Consumer Protection Regulations 2010.

Kituo has a constitutional right to institute court proceedings to claim a contravention or threatened contravention of the Constitution, including Article 31. Article 258 (2) (c) further allows Kituo to act in the interest of the public.

Whereas the providers of the SIM Technology cannot deny chances of vulnerability of the data of members of the public – through the intention to test the vulnerability of the technology in a one year trial period, it is prudent that the private information of the members of the public is safeguarded (including in the said trial period) against any malicious third party who may be interested in observing, collecting, altering and revealing such sensitive information.

Users of mobile phones and SIM cards constitute a class of the public whose welfare – regarding the security of their data and when compared to that of private individuals or institutions – must be protected and defended by the society. The society, through individuals or institutions acting on its behalf, has an enormous stake in the protection of the right to privacy. The society must protect information relating to its families or private affairs unnecessarily required or revealed, and the privacy of its communications from infringement or threatened infringement.

Progress of the Case: Thin Sim Blocked
On the 18th of December, 2014 the High Court temporarily blocked the roll out of the Thin Sim technology after Kituo claimed that primary SIMs of millions of mobile phone customers’ risks being compromised in an irreparable manner. The case continues to be heard.

Written by Jodom Mwebi.

THE MUTHURWA RIGHT TO HOUSING CASE: PROGRESSIVE REALIZATION OF ECONOMIC AND SOCIAL RIGHTS?

 

Evictions enlarged

Violent and inhuman evictions

The Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme attempted to violently and illegally evict the residents of Muthurwa estate on 12th July 2010 because it wanted to develop the land on which they lived.

The Registered Trustees of The Kenya Railways Staff Retirement Benefits Scheme had called upon Muthurwa residents to vacate the premises without any regard to their lack of alternative housing.  The Trustees continued to threaten to evict the residents from the premises. They had partially demolished and further threatened to demolish all the houses occupied by the residents for purposes of subdivision and sale of the premises, construction of a commercial business park and other commercial developments without regard to the housing interests of the residents. The Trustees further disconnected water supply and demolished toilets and sanitary facilities as a way of compelling the residents to vacate the premises. The Trustees permitted the construction of dusty roads through the premises to inconvenience the petitioners, cause health risks to them and compel them to vacate.

A large portion of the premises were allocated to the City Council of Nairobi by the Trustees and The Kenya Railways Corporation to construct an open air market unilaterally and in total disregard of its adverse effects on the residents. These actions were done without consulting the residents. The Kenya Railways Corporation and the Attorney General refused to intervene in spite of the residents’ pleas and requests.

Going to Court

On the 28th October, 2010, Kituo, on behalf of Muthurwa residents filed a petition of the enforcement of the right to housing under Article 43(1) (b) of the Constitution and Article 28 – Right to Dignity. The petition was filed against The Registered Trustees of The Kenya Railways Staff Retirement Benefits Scheme, The Kenya Railways Corporation and The Attorney General.

Muthurwa is a huge estate with over 1,000 residents. They could not all go to court at once. It would be too much as they all would be saying more or less the same things to the judge. So 10 persons were chosen to represent the residents. The 10 were chosen by the residents themselves in an open and transparent way. The 10 came to be known as the 10 petitioners.

The other two petitioners are Prof. Yash Pal Ghai and former Kituo Executive Director Ms. Priscilla Nyokabi. They were added as petitioners to strengthen the case as well as to bring life to Article 22 of the Constitution. Also, in case any of the other 10 petitioners came out of the case, the two additional petitioners were to ensure the case would proceed to its conclusion.

In 2011, Kituo Cha Sheria managed to get an injunction restraining the Registered Trustees of The Kenya Railways Staff Retirement Benefits Scheme from demolishing houses, terminating leases or tenancies, transferring or alienating the suit premises or in any other manner evicting the residents from Muthurwa.

Kituo cha Sheria’s requests to the Court:

  • A declaration that the 1st to 10th Petitioners, the persons they represent and their families are entitled to the right to adequate housing as provided for in Article 43 of the Constitution.
  • A declaration that the actions and omissions of the Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme violated the fundamental rights and freedoms of the 1st to 10th petitioners, the persons they represent and their families.
  • An injunction restraining the Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme, their servants, agents or others acting on their behalf or instructions from i) demolishing houses ii) terminating leases or tenancies ii) transferring the suit premises and iii) evicting the petitioners and the persons they represent from the estate
  • An order that the Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme reconnect sewage systems, water supply and toilet facilities to the estate.
  • An order that the Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme avail all information relating to the suit premises including decisions (resolutions) of all the organs that authorised the demolition and sale of the suit premises and eviction of the petitioners.
  • In the alternative, a declaration that in the event of an eviction and prior to such eviction the Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme shall ensure and provide:

  1. One (1) year notice in writing to the petitioners and all affected persons

 2. An opportunity to challenge the eviction decision and to present alternatives proposals and issues, priority rights   and interests, which shall be incorporated in the final decision.

 3. All relevant information including land records and a comprehensive proposal on the resettlement plan specifically addressing the residents’ rights and all rights of vulnerable persons in advance.

 4. The residents be accorded reasonable opportunity to obtain legal, technical or other professional advice on their rights and interest and other options.

5. Compensation for violation of fundamental freedoms

The Decision

On the 30th of August, 2012, the Courts declared that:

  1. Kenya Railways Staff Retirement Benefits Scheme violated the Petitioners’ rights to accessible and adequate housing contrary to Article 43 of the Constitution but limited to the manner in which the forced evictions from Muthurwa Estate were conducted on or about 12th July 2010.
  2. The AG to consider amendments to the Water Services Act of 2002 to bring it in line with the expectations of Article 43(1) (d) of the Constitution 2010
  3. The AG shall within 90 days of this Judgment file an Affidavit in this Court detailing out existing or planned State Policies and Legal Framework on Forced Evictions and Demolitions in Kenya generally and whether they are in line with acceptable International standards.
  4. The AG shall within 90 days of this Judgment file an Affidavit in this Court detailing out the measures the Government has put in place towards the realisation of the right to accessible and adequate housing and to reasonable sanitation in Kenya as is the expectation of Article 43(1)(b) of the Constitution.
  5. Within 21 days of this Judgment, a meeting shall be convened by the Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme together with the Petitioners, where a programme of eviction of the Petitioners shall be designed. The agreed programme shall be filed in this court, in any event within 60 days of this judgment.

 

Further, the judge ordered that at the time of evictions:

  1. Neutral observers should be allowed access to the suit premises to ensure compliance with international human rights principles.
  2. There must be a mandatory presence of Governmental officials   or representatives including Nairobi County officials and security officers
  3. There must be compliance with the right to human dignity, life and security of the evictees
  4. That the evictions must not take at night, in bad weather, during festivals or holidays, prior to any election, during or just prior to school exams and in fact preferably at the end of the school term or during school holidays
  5. That no one is subjected to indiscriminate attacks.

Kenya currently does not have any domestic law that guides the conduct of evictions. Kenya is however party to the International Guidelines and International Human Rights Law which guide evictions. Kenya is therefore obligated to follow these guidelines. The judge in his decision made reference to UN guidelines on evictions (basic principles and guidelines on development based evictions and displacement).

Right to adequate Housing and Forced evictions

The Judge found clear violation of the petitioners’ rights to adequate housing by the Respondents as the forced evictions were carried out in a reckless manner and without following the UN Guidelines on forced evictions at the very minimum.

Children

Acknowledging that “women, children, youth, older persons, indigenous people, ethnic and other minorities, and other vulnerable individuals and groups all suffer disproportionately from the practice of forced eviction”, he concludes that as the eviction took place in the middle of the school term, that the rights of the children have been violated.

What does the judgement mean?

The judgement reminds the AG of his responsibility to ensure that proper guidelines on eviction are enacted.

The judgement is focused deliberately on forced evictions specifically because Muthurwa Estate and income derived therefrom is the lifeline of hundreds of Kenya Railways Corporation pensioners some of whom still have families residing in the estate. Secondly, that the 1st to 10th Petitioners are tenants and one of the petitioners in her evidence had no strong objection to the change of user of the suit premises but desired a more humane progamme of eviction. The decision is balancing the interests of the Muthurwa residents against the vast number of railway pensioners whose pensions must be paid by the Board.

The judgement agreed to the Petitioners request for negotiations with the Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme but according to the ruling, the negotiations will be on the specific procedures for the actual evictions, in accordance with the UN Guidelines. They do not, on the face of it, include discussion of the development of the estate with a component of commercial assets and residential facilities for the tenants and pensioners.

Residents will eventually have to leave, but there are steps that have to be followed to ensure the respect of human rights such as adequate notice which will be agreed upon between the petitioners and the respondents.

The Judgement clearly outlines certain timelines within which certain tasks need to have taken place. This needs the watchful eyes and active engagement of both Kituo and the communities.

Possible alternative housing which will again have to be negotiated between the petitioners and the Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme.

The judgement requires that the Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme and the petitioners agree on an eviction programme to be brought before the judge. This therefore gives the Court a supervisory role in enforcement of the judgement.

Roles and responsibilities of petitioners with regards to the judgement

  • The residents must continue to pay rent to the account given.
  • Continue to cooperate with all parties to the suit. This means that joint meetings will be held between residents and Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme to come up with a way forward to implement the judgement.

Lessons for Kituo

There is need to expand the legal framework for the negotiations. There is much in the judgment which can be drawn upon to show that the framework is and was intended to be broader than focus on evictions. Kituo could also raise the question of alternative housing and the question of commercial cum residential development which will generate funds for the pensioners.

Last , but not least , there needs to be continuous and sustained engagement with the residents of Muthurwa keeping them informed of any progress made and educating them on their rights as negations proceed.

 

Compiled by Aimee Ongeso. Contributions by Jodom Mwebi, Carol Kinya and Maurice Ogosso.

KITUO CHA SHERIA STRONGLY CONDEMNS THE POLICE BRUTALITY ON THE LANG’ATA ROAD PRIMARY SCHOOL CHILDREN.

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“There is no trust more sacred than the one the world holds with children. There is no duty more important than ensuring that their rights are respected, that their welfare is protected, that their lives are free from fear and want and that they can grow up in peace.” – Koffi Annan

It is extremely unfortunate that men and women who are entrusted to protect not only children but the public in general, betray this trust, violate children’s rights, fail to protect young minds and instead instill wanton fear among
The whole country watched in utter shock and disbelief as the Kenyan Police, with impunity, hurled teargas canisters at innocent young children on Monday, January 19th, Lang’ata Road Primary School as they demonstrated against the grabbing of their play ground by an alleged private developer. The action was not only cruel and barbaric but archaic to say the least.
Article 53(1) (a) of the constitution states clearly that every child has the right to be protected from abuse, all forms of violence, inhuman treatment and punishment, among others. It is very sad that those in the society tasked with the responsibility of protecting these rights, turned against the very people who they are supposed to protect.
We stand by the children in ensuring that justice is granted to them. All the police officers who were involved in this heinous acts must be made accountable for their acts and disciplined accordingly. It is not only legally wrong that the police used excessive force during this protest but it is also immoral that they did so to innocent harmless children. We want to remind the police service that it is their duty to uphold order and respect for the rule of law so as to maintain the fabric of our society.
The children, noble citizens of this great country, were exercising their Constitutional right to assemble, demonstrate, and picket as provided for under Article 37 of the Constitution. Furthermore they were safeguarding and protecting their property and by extension their environment, both rights which are deeply enshrined in our constitution.
Kituo reminds the Police and by extension the citizens of this country- ‘private developers’ included, that the right to education as provided for in Article 43 of the Constitution does not only stop at children attending class but also when they participate in co-curricular activities in order for them to develop socially, emotionally and physically. Play is crucial to optimal child development and has been recognized by the United Nations High Commission for Human Rights as a right of every child. Denying them this is an infringement to their right which is unacceptable.
To the purported developers who have a high affinity for public land, especially that belonging to public institution, Kituo is putting them on notice. We are telling them that it is wrong to grab land belonging to institutions and they should desist from this vice. Play is integral to the academic environment. It ensures that the school setting attends to the social and emotional development of children as well as their cognitive development. We shall endeavor to protect this at all times.
We appreciate the fact that government has strongly come out to condemn the act and to apologize. But we are saying this verbal apology alone is not enough if disciplinary measures shall not be taken against all those who are culpable.
Kituo Cha Sheria will ensure that the truth is revealed and justice granted to these innocent pupils, who were physically injured during the demonstration. We will seek legal redress should the government fail to act and grant justice to the victims of the mayhem. We fully support the Law Society of Kenya and truly wish them all the best as they endeavor to unravel the truth. We guarantee them our support.

 

Gertrude Angote- Executive Director, Kituo Cha Sheria.


Kituo Strategic Planning Retreat

It was time to retreat and plan again. For Kituo cha Sheria staff, this was the moment to plan and strategize for the next five years. The previous strategic plan had elapsed on 2013 and there was need to develop another plan. This journey started earlier this year with the evaluation of the previous strategic plan. The evaluation enabled the staff with the help of the facilitators to highlight and address some of the pitfalls, success and strengths that could be carried on to the next strategic plan. For the past five years, Kituo cha Sheria has gone through notable achievements; winning awards such as CSOYA award in 2010, Distinguished service award with several other recognitions both locally and internationally. Kituo has had major transformation in its bid for legal empowerment of the poor and the marginalized especially in paralegal work that has captured international headlines such as on BBC and Australia Broadcasting Corporation.

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{Kituo staff & All Stakeholders present during the strategic planning at Elementaita Country Lounge}

The Strategic planning started on 14 to 18thOct. 2014 at Elementaita Country Lounge, located next to Lake Elementaita on the Nairobi – Nakuru highway. As it is the norm, Kituo involved most of its stakeholders; the staff, Board of Directors, AGM members, Volunteer advocates and paralegals in the planning. This was a way to ensure that the views of every player in Kituo’s day to day work is put into consideration. The planning took two day’s rigorous strategizing led by able facilitators; Dr. Abuom and Fred Wakhungu. The second day also saw Kituo staff bid farewell to its long serving Chairman of the Board of Directors, Ken Nyaundi. The evening party was filled with ecstatic mood from all present. The outgoing chairman, Ken Nyaundi could not mince his words as he expressed his praise for Kituo and the period he has served. He could remember the low and the high moments he has had while serving as the Chair of the Board at Kituo.

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Anthony Mulekyo (left-Incoming BOD chair) present a gift to Ken Nyaundi (outgoing chair}

Then, while all thought the party had come to a close, the unexpected happened; the lights went off, some commotions while some voices could be heard from the dark singing “Happy birthday dear ED!”. Yes, the admin, under Lydia Awiti, the PA had planned a surprise happy birthday wish to the Kituo ED, Gertrude Angote. It was indeed a exciting moment for everyone as we were all caught unaware.

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{Wishing kituo ED, Gertrude Angote (center) a happy birthday}

The culmination of the strategic planning was marked by a team building exercise at the same venue. The exercises were both mind boggling and physical. All of us appreciated the facilitators as we learnt lessons on how to work as a team!

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{During the team building}

Congratulations LYDIAH for planning such an eventful activity.