Interim Report - Report No 238, March 1985

Case No 1189 (Kenya) - Complaint date: 22-MAR-83 - Closed

1. 248. The Committee examined this case at its November 1983 meeting when it presented an interim report to the Governing Body. (See 230th Report, paras. 679 to 688, adopted by the Governing Body at its 224th Session, November 1983. ) At its February 1984 meeting the Committee noted that the Government, in a communication dated 14 February 1984, had transmitted certain information on this case and requested it to send all the information previously requested. (See 233rd Report, para. 12, adopted by the Governing Body at its 225th Session, February-March 1984.) On 20 December 1984 the Government transmitted its further observations on this case.
2. 249. Kenya has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 087) or the Labour Relations (Public Service) Convention, 1978 (No. 151); it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No.098).

A. Previous examination of the case

1. 250. When it last examined the present complaints, the Committee noted that the issues involved were similar to a previous complaint concerning Kenya (Case No. 984, examined by the Committee in its 208th and 214th Reports), namely the de-registration in July 1980 of the Union of Kenya Civil Servants and the freeze and seizure of its assets. In the context of the present case, the Committee noted that although a new body to represent the interests of Kenyan civil servants had been registered under the Societies' Act (as the Kenya Civil Servants' Association), this body was de-registered on 17 February 1983, no official reason being given in the Government Gazette notification dated 8 March 1983. The Government stated that there was a favourable prospect for the re-registration of the Association, subject to minor modifications to its constitution.
2. 251. In November 1983 the Governing Body approved the following recommendations of the Committee: - The Committee considers that the cancellation by the Registrar - in this case the Registrar of Societies - of the registration of an organisation is tantamount to suspension or dissolution of an organisation by administrative action, a measure that is incompatible with the principle that the workers' and employers' organisations shall not be liable to be dissolved by administrative authority; - The Committee expresses the hope that the efforts mentioned by the Government in its reply on this case will result in the free establishment by the workers concerned as soon as possible of an organisation to represent their interests; it requests the Government to transmit precise information concerning the re-establishment of the organisation of civil servants; - As regards the question of the assets of the de-registered organisation, the Committee requests the Government to supply information on any measures taken to distribute these assets to a newly created organisation which pursues in the same spirit the aims of the dissolved organisation.

B. The Government's replies

1. 252. In a communication of 14 February 1984 the Government stated that an application had been made to the Registrar of Trade Unions for registration of the Kenya Civil Servants Association. According to the Government, the application was being examined by the Registrar and it would further inform the Committee once the Registrar had completed his examination of the proposed constitution of the Association.
2. 253. In a further letter dated 20 December 1984, the Government states that the President of Kenya has publicly announced that a welfare association for civil servants should be established in the near future and gave authority for this to proceed. The Government is currently looking into the mechanism to implement this directive and it undertakes to keep the Committee informed of progress in the matter.

C. The Committee's conclusions

1. 254. The Committee would express its regret that, since the de-registration of the Kenya Civil Servants' Association in February 1983 and the various complaints which the Committee has been called upon to examine, the Government has supplied no information to indicate any willingness on its part to permit the re-establishment of an organisation for the promotion and defence of the occupational interests of the civil servants it would represent. Despite previous indications that there were favourable prospects for the re-registration of the Association and a statement to the effect that an application for registration was being examined by the Registrar no positive action has been taken to ensure the functioning of the organisation. The Committee notes that the Government's latest communication states that the President of Kenya has now announced that a welfare association for civil servants is to be established in the near future.
2. 255. In addition, the Committee regrets that the Government has supplied no information on the question of the assets of the de-registered organisation or as regards the eventual distribution of these assets.
3. 256. The Committee has already pointed out that the cancellation by the Registrar of the registration of an organisation is tantamount to suspension or dissolution of an organisation by administrative action and constitutes a measure that is incompatible with the principle that workers' and employers' organisations shall not be liable to be suspended or dissolved by administrative authority.
4. 257. The Committee would point out that the right to form and to join organisations for the promotion and defence of workers' interests without previous authorisation is a fundamental right which should be enjoyed by public servants, like all other workers, without distinction whatsoever. The Committee considers that the type of welfare association that is envisaged would not fully afford to the civil servants concerned an adequate means to protect and defend their occupational interests.
5. 258. In the absence of more detailed information concerning this case the Committee would draw the attention of the Government to the foregoing considerations and request it to supply full and detailed information on the measures that have been taken or are envisaged to permit the establishment of an organisation through which the workers concerned may pursue their normal trade union activities.
6. 259. The Committee also requests the Government to transmit information on the question of the assets that were seized on the de-registration of the organisation and on the Government's intention as to the manner in which it is proposed to distribute these assets.

The Committee's recommendations

1. 260. The Committee recommends the Governing Body to approve the interim report and, in particular, the following conclusions:
   • a) The Committee draws the attention of the Government to the principle that public servants, like all other workers, without distinction whatsoever have the right to form and join organisations of their own choosing, without previous authorisation, for the promotion and defence of their occupational interests;
   • b) The Committee considers that a welfare association, such as that envisaged by the Government, would not fully afford to the civil servants concerned an adequate means to protect and defend their occupational interests;
   • c) The Committee requests the Government to supply full and detailed information on the measures that have been taken, or are envisaged, to permit the establishment of an organisation through which the workers concerned may pursue their normal trade union activities;
   • d) The Committee requests the Government to transmit information on the question of the assets that were seized on the de-registration of the civil servants' organisation, and on the Government's intention as to the manner in which it is proposed to distribute these assets.