A strong pillar in the fight for freedom and workers’ rights, and a political force to be reckoned with have over the years been the hallmarks of trade unions in the country.
Wielding enormous power with their sizeable constituency, country-wide structures and the potential for mobilising members on social or political matters, trade unions have been a thorn in the flesh for successive governments.
Due to their central place in the agitation of workers’ rights and dreaded power of influence, trade unions became a breeding ground for national leaders — Pio Gama Pinto, Tom Mboya, Dennis Akumu and Fred Kubai — to name but a few.
Led by firebrand leaders, the trade unions have always made industrial action a tool to keep the government of the day and employers in check.
The five weeks to October 2, 2015 are perhaps the most memorable within Kenya’s education sphere. This was the period when the entire education sector was paralysed, as an army of close to 300,000 teachers went on a strike to demand a pay rise.
The five-week strike, which saw the government order official closure of schools for at least two weeks, came at a critical moment, just when schools were re-opening for the third term – the education sector’s busiest as class eight and form four candidates sit for national exams.
Yet while the strike remains the biggest ever witnessed in the country, it was just yet another in a series of work boycotts that had dominated Kenya’s labour force for decades, with another teacher’s strike in 2002 towards the General Election just when former President Daniel arap Moi was exiting power, having soared to see civil servants from other sectors and retired teachers called to supervise national examinations.
Within the health sector, any announcement of a doctors’ or nurses’ strike would come with pain and anguish for Kenyans, as the sick are left unattended, and the government would always be left with little option, but to heed their calls.
And for many years, strikes became the trademark of trade unions in the country with unions in different sectors holding the country hostage by downing their tools when dialogue failed.
“There is no day the government will put money there as what has been kept aside to pay wages. As much as you push them, they make sure that wages and salaries are included in the budget,” says Francis Atwoli, the long-serving Central Organisation of Trade Unions (Cotu).
Those were the days when May 1 of every year would be an action-packed day as thousands of Kenyans from across the country converged in Nairobi for Labour Day celebrations, the hallmark of it being the announcement of a raise in Minimum Wage, which was almost always a guarantee.
But fast forward to 2023 and the scene is completely different. Trade unions have lost their spark and are a pale shadow of their pioneers.
The 2023 Labour Day celebrations recorded the lowest turnout in history with many workers remaining indoors, a sign of a vote of no confidence in the current unions.
While Collective Bargaining Agreements (CBAs) would take two to three years for full implementation by employers lest trade unions called their members to strike, today, teachers have gone for eight years without the full implementation of a CBA signed in 2016 and it is just another day at the classroom.
It was a critical document that would see the tutors get an additional Sh54 billion.
“So the CBA of 2016 was supposed to end in 2021 but unfortunately in 2021 we were forced and cajoled by the government to sign a moneyless CBA. It has no money component and this is supposed to run from 2021 to 2025,” says Kenya Post Primary Education Teachers Union (Kuppet) Secretary-General Omboko Milemba.
By 2025, teachers, who constitute about 43 percent of Kenya’s public service workforce, will have gone for a decade without the full implementation of the CBA.
Mr Milemba terms the fact that the teaching service got Sh9.6 billion out of the Sh21.7 billion salary increment announced across the public service “good luck” and notes that several job groups in the teaching service were not well taken care of, which has caused the union to petition the Salaries and Remuneration Commission (SRC) and the Teachers Service Commission (TSC) for their consideration, as they wait to sign a new CBA in 2025.
The four-year CBA period was introduced by SRC, the new bulldog that has disrupted the status quo in Kenya’s labourforce- which was marked with negotiations for new deals every two or three years—much to the chagrin of trade unions that are now being rendered powerless.
While unions argue that four-year CBAs disadvantage workers with economic realities evolving pretty fast, backed by constitutional mandate and with veto powers on CBA decisions made without consulting it, the SRC hasn’t shown an interest to take prisoners, handling the unions as they come.
Kenya has about 500,000 different CBAs and contracts that unions have signed with employers, and Mr Atwoli, who has been the Cotu Secretary-General since 2001, recognises that when it comes to CBA negotiations it’s a ‘give-and-take’.
“The life of a CBA is two years, once the period lapses, you will either be in court or renegotiating to renew it. Once clauses in the CBA have been reviewed through free and independent negotiations, then they must be implemented.
“Where we have some problems is with SRC. SRC is an amorphous organisation because globally, issues of negotiations are between employer and a worker, a third party should only be the employment and labour relations court, but no other person can come in between,” Mr Atwoli says.
The SG accuses SRC of overstepping its mandate and presenting a key challenge to unions in public service.
Just last month when the commission together with Treasury announced a Sh21.7 billion allocation to salaries and allowances for workers across the Public Service, SRC chairperson Lyn Mengich admitted that over the past three years, the Commission has approved just 13 per cent of the Sh98.8 billion additional salary and allowances requests from the public service.
“On an ongoing basis we receive requests from public institutions for review of many areas of remuneration, could be salaries through collective bargaining negotiations or allowances. For the (last) three years, the commission received requests worth Sh98.8 billion and only approved Sh12.9 billion. That goes to demonstrate how the commission is continuously ensuring that the wage bill is not outpacing the revenue or GDP growth,” Ms Mengich said.
But an analysis of SRC data shows that between 2020/21 and 2022/23, the Commission gave advice to the tune of Sh2.44 billion out of a total Sh84.87 billion requests touching on CBAs, a mere 2.9 per cent.
The Commission faults Kenya’s labour productivity as low, ranked at position 151 out of 185 countries by the International Labour Organisation (ILO) in 2021, and notes that one of its principles in advising on matters remuneration is “equal remuneration to persons for work of equal value.”
In May, at least five trade unions within the health sector protested, giving the Ministry of Health a two-month ultimatum to resume talks and registration of CBAs with counties, as they threatened to go on strike, with the Kenya National Union of Nurses (KNUN) accusing the government of failing to recognise a CBA since 2019.
KNUN complained that its members had not enjoyed a pay rise in seven years.
While previously the medical profession had a strong voice, the devolution of health, which came with the current Constitution, has largely split unions in the sector, since their welfare issues are handled at county level.
Many employers in the public and private sectors are also increasingly employing workers on short contract periods which has stifled trade unions, since workers hired on short terms do not see the value of joining a union.
While the employment of casual workers in the economy has more than doubled (134 per cent) over the past decade, the employment of regular workers has grown by just 29 per cent.
Although unions say they are devising strategies to counter the new course taken by employers, many companies have cut down contract terms to as low as three months.
Mr Milemba also notes that the government first started hiring teachers on contract in 2011 and the current pact with TSC is that they should be absorbed on permanent and pensionable terms after working for one year.
“According to the law, teachers are not supposed to be employed on contract, they are supposed to be employed on permanent and pensionable terms, but in 2011 the government employed teachers on internship, which is similar to contracting,” he avers.
Within the teaching service, the government has for long introduced strategies to weaken the unions, including orchestrating the registration of regime-friendly unions to split existing ones.
Kuppet, for instance, which was registered in 1998 was largely a strategy by former President Daniel Moi to weaken the influence of the Kenya National Union of Teachers (Knut) that was getting beyond control.
In March 2021, the TSC again recognised the Kenya Union of Special Needs Education Teachers (Kusnet) as a third teachers’ trade union which gave the union powers to participate in the 2021-2025 negotiations and recruit members, further splitting the bodies representing teachers.
The negotiations would end up seeing the unions forced to sign the “moneyless CBA”.
Registration of new unions causes a split since the unions are left competing for the same teachers and the State has always favoured unions that go to bed with it while defiant ones get punished.
For instance, between June 2019 and June 2020, Knut lost about 78 per cent of its members as the TSC employed a strategy to increase salaries of teachers who were not unionised while denying the benefits to union members. This saw its membership drop to a meagre 20,000.
The split within the teaching service, has been detrimental to teachers and has affected even the kind of bargains they present on the table.
Long gone are the days such as in 1997 when they were demanding a 300 per cent pay rise, or 2015 when they were demanding at least 50 per cent rise, since they have been reduced to signing “moneyless” CBAs.
“It would be very risky for me to comment otherwise because we are a product of expanded space in the sector,” Mr Milemba says.
Employers admit that unions have been slow on them in the push for better payment terms to their members with the Federation of Kenya Employers (FKE) indicating that they are now “reasonable in their demands.”
“The current business environment has not substantially stabilised. The lessons learnt during the pandemic have taught the unions to be reasonable in their demands for increased financial benefits and the employers to appreciate the role of human resource as a factor of production,” says the FKE.
Blaming ever-changing government policies, including high taxes that have made it expensive to run businesses, and a general rise in cost of living for the lethargy to raise workers’ remunerations at the pace the cost of living, the FKE also notes that unions in recent times have dropped “the traditional step of reporting trade disputes or filing cases in court” when employers don’t implement CBAs, in favour of engaging employers “in working out a staggered implementation plan.”
“Still, at the table of negotiations of CBAs, the unions are increasingly becoming aware that they cannot push for unsustainable terms of employment without the risk of resultant redundancies,” FKE adds.
The FKE admits that more employers are hiring on short contract terms, but attributes the trend to a need by the current crop of employees and macroeconomic uncertainties.
“Where there are disputes between workers and employers that end up in court, the possibilities of the employer being ordered to pay hefty compensation is invariably high. The courts have gone beyond the traditional compensatory reliefs and are currently punishing employers for breaching even constitutional rights,” the FKE says.
Another key challenge that has weakened trade movements in the country is political affiliations, with trade union leaders now turning into politicians by seeking elective positions and being nominated to parliament by political parties.
This has given room for the government to either go in bed with unions whose leaders are affiliated with the regime while punishing those in the opposite camp.
Former Knut Secretary-General Wilson Sossion was nominated to Parliament in the 2017 by the Orange Democratic Party (ODM), while Mr Milemba was elected on an Amani National Congress to represent Emuhaya residents, effectively having representatives of teachers’ unions as politicians. The KNUN Secretary-General, Seth Panyako, also lost the Malava elections last year, which he vied on a United Democratic Alliance (UDA) party.
Mr Atwoli, on the other hand, has always stroked controversy by aligning with different political affiliations, mainly siding with the regime of the day, and is currently affiliated with President William Ruto.
But technology has also presented another disruption across the economy, as more companies adopt easier ways of doing things, whose result has been the massive laying off of staff, a stab in the back of trade unions that ride in numbers.
The tea sector has been the biggest casualty yet with the introduction of tea plucking machines, where the Kenya Plantation and Agricultural Workers Union (KPAWU) has been unable to contain the wave, with thousands of workers fired over the past decade.