Govt to appeal ruling granting police rights to join unions

The State has now expressed its intention to appeal against a ruling that granted the Kenyan police a right to form and become members of a trade union.

The registrar of trade unions has challenged the ruling delivered by Industrial Court judge Onesmus Makau and filed a notice of appeal.

This is despite the fact that the registrar did not file a reply to the application and did not attend the hearing of the matter.

The notice was filed on July 4, 2013 and served upon the applicants who had filed the initial matter in court.

In his landmark ruling delivered last month, the judge declared a section of the Labour Relations Act of 2007 (LRA) as unconstitutional, saying it was inconsistent with Article 41 and 24 of the Constitution.
This is because it entirely took away the rights of the National Police Service (NPS) to form, join and participate in all activities of a trade union.

His ruling therefore meant that the National Police Service can enjoy their constitutional right of freedom of association.

However, police officers remain prohibited from calling or participating in any strike pursuant to section 47 (3) of the National Police Service Act of 2011 (NPSA) or any other law.

At the same time, the judge gave the Attorney General four months within which he should amend the statutory provisions and to lay down a legislative framework to guide and facilitate the new phenomenon of police unions.

These new legislations, the court observed should strictly comply with Article 24 of the Constitution.

The ruling was based on an application filed by four retired police officers-Messrs Nicky Njuguna, Stephen Kyalo, Stephen Karani and Paul Gichuru against the registrar of trade unions. The Central Organisation of Trade Unions (COTU) had been enjoined as an interested party in the suit.

The applicants through their lawyer Wambugu Gitonga had filed an appeal challenging the refusal by the registrar of trade unions to register the Kenya Police Union and while the appeal was pending in court, all the laws related to the appeal were repealed and new laws passed.

These repealed laws were replaced by the Labour Relations Act (2007), the Constitution and the NPSA of 2011.

In his submissions, Mr Gitonga said that the repealed Trade Unions Act Cap 233 had not barred the police officers from enjoying the right and the ground for refusal to register the union was that the officers were catered for by another union.

He said the purpose of the police union is to articulate their interests at work as it happens in the other jurisdiction where the court and parties to the suit visited on study tours.

He also further urged the court to look at the union from the point of view of benefits which may result to public security when police collectively discuss matters with their employer and not from the point of view of the dangers which the union may pose.

The court has directed that the ruling be served upon the Inspector General of police and the AG for any action.