A cursory glance at the fundamental rights and freedoms set out in the bill of rights in the Constitution of Kenya 2010 (the Constitution) may lead a person to conclude that all workers have a constitutional right to engage in a lawful strike. But is this the correct position?
The Labour Relations Act, 2007 (the Act) whose primary purpose is to regulate relations between employees and employers, including any employees’ organisation, defines ‘strike’ as 'the cessation of work by employees acting in combination, or a concerted refusal or a refusal under a common understanding of employees to continue to work for the purpose of compelling their employer or an employers’ organisation of which their employer is a member to accede to any demand in respect of a trade dispute.’ This is the exact definition provided in the Employment Act, 2007.
Section 76 of the Act recognises workers’ right to engage in a lawful strike according to the parameters set out in the Act. This right is also protected under the supreme law of the land, that is the Constitution under Article 41(2) (d).
The Employment & Labour Relations Court (the Court) has long protected the right of workers to strike in its various decisions. One such instance is in the case of Kenya Ferry Services Limited v Dock Workers Union (Ferry Branch) [2015] eKLR, where the Court held that: -
The right to strike is a fundamental element in stable collective bargaining. Employees promote and protect their economic and social interest, and resolve labour disputes, through strike action.
Employees principally resort to strike action to unlock an impasse in the collective bargaining and negotiation process.....The right to strike is a bedfellow of the right to bargain collectively. The nature of the right to strike is fundamental to the whole institution of collective bargaining.
Section 81 (1) of the Act defines essential services as a service which, if interrupted, would probably endanger the life of a person or health of the population or any part of the population. The Fourth Schedule to the Act lists the hospital, water supply, fire, ferry and local government authorities service sectors, among others, as essential services.
Section 81 (3) of the Act prohibits workers in essential services from engaging in any form of strikes. The Act provides further that any disputes arising in the essential services sectors are to be adjudicated by the Court.
It would appear that there is no consensus by the different Judges of the Court on the interpretation of the prohibition set out at Section 81 (3) of the Act.
In Kenya Ferry Services Limited v Dock Workers Union (Ferry Branch) [2015] eKLR the Court, in finding that a strike by essential services workers should not be deemed illegal on the face of it due to Section 81 of the Act, held that:-
The right to strike transcends the interests of the involved Employer and Employee. Strike action, particularly in essential services sectors, have ramifications for the Public and the National Economy. The right to strike is therefore balanced against the fundamental rights of others. Similarly, the fundamental right of the Public to essential services must be protected. These are two inseparable fundamental rights involved, and which are recognised by the ILO under Convention 87 and 98, as the staple of stable labour relations. If the Court simply looks at the service as essential, and declares the strike illegal, it will have misperceived the nature of the right of strike, and freedom of association, and the right to collectively bargain, contrary to Article 24 [1].
However, in County Government of Kisii v Kenya Medical Practitioners Pharmacists & Dentists Union (KMPDU) & another (Cause E016 of 2024) [2024] KEELRC 561 (KLR) (14 March 2024) (Ruling), the Court, in declaring that a strike by essential services workers is prohibited and thus unlawful, held that:
...the prohibition of strikes in an important sector such as the health sector, is reasonable and justifiable, as to allow strikes would have the effect of prejudicing the rights and fundamental freedoms of the general public. Further, the right to strike guaranteed under Article 41(2)(d) of the Constitution is not an absolute right. I therefore return that Section 81 of the Labour Relations Act, which prohibits strikes in essential services, meets the threshold set under Article 24 of the Constitution on limitation of rights and fundamental freedoms, and amounts to a reasonable limitation to the right to strike and does not in any way conflict with Article 41.
Most recently, with the ongoing strike by medical practitioners, we have seen the Court leaning towards allowing essential services workers to engage in lawful strikes.
The Court, despite allowing the strikes, has taken the approach that before essential services workers engage in strikes, they should implement a Minimum Service Agreement with their employer which details the minimum number of employees required to continue working during the strike, the type of services which must continue during the strike; minimum service levels during the strike; and undertaking by the Employer not to engage replacement labour during the strike.
In April 2024, the Court in Kenyatta National Hospital v Kenya Medical Practitioners Phahmacists & Dentists Union (KMPDU) & Salaries & Remuneration Commissions & 2 Others (2024) the Court suspended the ongoing strike and directed that for all hospitals categorised as level 3, 4 and 5 there shall be at least 2 doctors per cadre (2 medical officers, 2 dental officers and 2 pharmacists) and at least 2 consultants on duty to handle emergencies during a strike. For national hospitals, there shall be at least 30 consultants, 50 medical officers, 10 pharmacists and 3 dentists on duty during a strike.
Even though the right to strike is a fundamental right provided in the Constitution, the Employment and Labour Relations Court has ensured that the right to strike in essential services sector is balanced against the fundamental right of access to essential services by the public. This is to ensure the rights of essential service workers and the public are not entirely compromised and are protected.
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