Report in which the committee requests to be kept informed of development - Report No 305, November 1996

Case No 1883 (Kenya) - Complaint date: 14-MAY-96 - Closed

Allegation: Denial of union recognition

1. 383. In a communication of 14 May 1996, the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers Associations (IUF) presented a complaint of violations of freedom of association against the Government of Kenya, on behalf of its affiliate, the Kenya Wildlife and Allied Workers' Union (KWAWU).
2. 384. The Government supplied its observations in a communication dated 17 July 1996.
3. 385. Kenya has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). It has, however, ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 386. In its communication of 14 May 1996, the IUF contends that the Kenya Wildlife and Allied Workers' Union (KWAWU) continues to be denied recognition by the Registrar of Trade Unions in Kenya.
2. 387. The IUF explains that the above union was registered on 5 August 1994. On 31 March 1995, the Registrar ordered that the union be deregistered. The IUF states that the reasons for this decision remain unclear and were obviously unclear to the High Court when the Court ordered the restoration of registration on 27 July 1995. However, the Registrar apparently chose to ignore this High Court decision.
3. 388. The IUF considers this to be a clear and blatant denial of the workers' right to freedom of association and of their union's right to bargain with the relevant employer. Thus, this action of the Kenyan Government represents an infringement of freedom of association principles and should be rectified.

B. The Government's reply

1. 389. In its communication of 17 July 1996, the Government indicates that the issue of the KWAWU is not, in essence, that of recognition but of registration. Having been initially registered on 5 August 1994, it was subsequently deregistered on 31 March 1995. This was because it came to the notice of the Registrar of Trade Unions that another union was already in existence, namely the Kenya Game Hunting and Safari Workers' Union.
2. 390. Indeed, this anomaly was pointed out to the Registrar by none other than the Central Organization of Trade Unions, the Federation of Kenya Employers and the Ministry of Labour and Manpower Development. Hence, the tripartite social partners actually did identify the duplication.
3. 391. The Government adds that, in any event, upon its deregistration and in accordance with its constitutional right, the aggrieved party took the matter to the High Court of Kenya. The Government stresses that the matter is still in the High Court and has not been determined, contrary to what the complainant claims. According to the Government, the Registrar would never disregard a High Court order to restore the union's registration. The Government concludes by stating that it is awaiting the High Court's decision.

C. The Committee's conclusions

1. 392. The Committee notes that the allegations in this case refer to the deregistration of the Kenya Wildlife and Allied Workers' Union (KWAWU) by the Registrar of Trade Unions on 31 March 1995. In addition, although according to the complainant the High Court ordered that registration be restored to the KWAWU, the Registrar continues to refuse to register it. The Government, for its part, acknowledges that the KWAWU was deregistered, but only because another union - the Kenya Game Hunting and Safari Workers' Union - was already in existence. Moreover, it categorically refutes the complainant's statement that the High Court has already handed down a decision ordering the restoration of registration to the KWAWU.
2. 393. The Committee observes that although the Government admits that there was deregistration, this was justified due to the fact that another union already existed for the same employees as those whom the KWAWU was organizing. In this respect, the Committee would remind the Government that a provision authorizing the refusal of an application for registration if another union, already registered, is sufficiently representative of the interests which the union seeking registration proposes to defend, means that, in certain cases, workers may be denied the right to join the organization of their own choosing, contrary to the principles of freedom of association (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 297).
3. 394. Hence, the subsequent finding by the Registrar of the existence of the Kenya Game Hunting and Safari Workers' Union, which represents the same class of employees as those whom the KWAWU was representing, does not, in the Committee's view, give rise to objections which would justify the deregistration of the KWAWU by the Registrar. The Committee therefore requests the Government to ensure in future that a new union will be registered even if an existing registered union already represents the interests which the union seeking registration proposes to defend.
4. 395. The Committee further observes the contradiction between the complainant's and the Government's statements with respect to the High Court issuing a decision on this matter. Although the complainant asserts that the High Court ordered that registration of the KWAWU be restored in a decision of 27 July 1995, it does not provide a copy of this decision to substantiate its claim. The Government, on the other hand, indicates that it is still awaiting a decision by the High Court on this issue. As a result, the Committee requests the Government to keep it informed of the outcome of the High Court's decision in this matter, as soon as it has been handed down. It would further request the Government to supply it with a copy of the Court's decision.

The Committee's recommendations

1. 396. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to ensure in future that a new union will be registered even if an existing registered union already represents the interests which the union seeking registration proposes to defend.
   • (b) The Committee requests the Government to keep it informed of the High Court's decision in the matter of the restoration of registration to the Kenya Wildlife and Allied Workers' Union, and to provide it with a copy thereof.