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"speaker_name": "Dr. Khalwale",
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"content": "Madam Temporary Deputy Speaker, allow me to speak on the intended deletion of the Industrial Court Act. I want to beg the hon. Members that if you look at the Memorandum of Objects and Reasons, the Attorney-General is telling us that the reason he wants to amend the Industrial Court Act is because he wants to harmonize the provisions relating to the court with those obtaining, with respect to other courts within the Judiciary. If this is why the Attorney General wants to amend this, then I am worried that he might not be aware of the provisions of the Constitution in respect of the Industrial Court. In Articles 162(2)(a) and 165(5)(b), the Constitution provides for the description of the Industrial Court. In that Article, if the amendments are carried, they seek to destroy the independence of the Industrial Court as currently constituted and make it a division of the High Court. Madam Temporary Deputy Speaker, Article 162(2)(a) actually establishes a special independent court to deal with employment and labour relations. In fact, the Industrial Act which gave effect to this particular provision of the Constitution was enacted to give effect to this. The Constitution goes further to stamp the Industrial Court’s independence in Article 165(5)(b), which hosts the jurisdiction of the High Court on matters falling within the purview of the Industrial Court. Madam Temporary Deputy Speaker, the Industrial Court Act of 2011 which Members will remember we debated in this House beyond midnight last year, preserved the intended autonomy by providing for a court that would be headed by the Principal Judge, assisted by the Registrar of the Industrial Court and two Deputy Registrars who report to the Chief Registrar of the Judiciary. We also provided that the Chief Justice would have the overall supervisory jurisdiction over this court. If, as proposed in the amendments, you will abolish the position of the Principal Judge and replace it with the Presiding Judge, you will remove Section 8 which provided for the funding of the court through the Consolidated Fund. You will remove the financial independence of the court after the deletion of Section 8. The moment you do this, you will have removed the Principal Judge and made it part of the High Court, and the effect would be that you have breached the Constitution. You will have made this to be an ordinary court and not a special court as provided for under Article 162(2)(a) of the Constitution of Kenya. I want to beg Members to see why I am belabouring this point. It is because the Industrial Court, in its present form as exercised under the Industrial Court Act, 2011, makes it the most, as I would say, Wanjiku friendly court in Kenya. An aggrieved individual can approach the High Court directly without the assistance of any lawyer and argue his own case successfully because of the special simple procedures governing the exercise. These are the Industrial Court procedures and rules. If we amend this Act the way the Minister is proposing, we will subject industrial matters to civil procedure rules which will be subjected to the rule of evidence. In the process, somebody will take the matter to the High Court, he will pay legal fees and when they lose, they will go to the Court of Appeal and pay. If they lose, they will go to the Supreme Court and pay. How many watchmen from Nyatike and how many cooks from Kakamega can afford the fees of lawyers from the High Court to the Court of Appeal and to the Supreme Court? We must be conscious of the fact that justice has got a cost. So, if the Committee of Experts that drafted the Constitution was alive to this and they protected all the cooks who come from Kakamega, all the watchmen who come from Busia and all sugar-cane cutters of Mumias, why do you want to punish them this afternoon? This simply means that a poor worker would never win a case. It should not be lost that whenever a worker approaches a court the person he or she is faced with before the court is the employer and the employer, under normal circumstances, is always richer than the employee. So, they would have a field day. All they would do is to ensure that the matter fails at the High Court and then this man is left stranded because he cannot go to the Court of Appeal or to the Supreme Court. The other issue I want to raise about the Industrial Act is how it relates to the Labour Convention. The Labour Convention, in fact, No.144 of 1976 provides--- By the way, it has been ratified by Kenya. It provides that each Member of the International Labour Organization (ILO) which ratifies this Convention undertakes to operate procedures which ensure effective consultations with respect to matters concerning the activities of the ILO set out in Article 5, paragraph 1 below between representatives of Government, the employers and the employees. If this is the case, and since our Constitution provides that once a Convention is ratified by the country, it is part of our law, what this means is that by this Parliament attempting to pass this amendment without proceeding to allow for consultations between the Government, the employer and the employees represented by trade unions, we are in breach of the Constitution. I appeal to the House that we deny this Minister this amendment not because we do not like his proposals but so that he can move in line with the provisions of the Constitution as derived from the International Labour Organization Convention by way of moving to call for a tripartite consultative session between the Government, the Federation of Kenya Employees (FKE) and the Central Organization of Trade Unions (COTU). Once they do that, they will look at this Act collectively and reach a settlement. It is that settlement that we would move to give effect to the intended amendments. Otherwise, to take it upon ourselves because we believe that we know these things, we will be carrying out our mandate but in so doing, somebody might move to court and say that we moved unproceduraly. The last thing I want to talk about on the Industrial Court is that of the name. It is called “The Industrial Court” because that is how it is provided for internationally. We debated this matter here led by the Chair of the Departmental Committee on Labour and Social Welfare, Madam Sophie, and the House passed, unanimously, that this name should be retained and that it offends no one. My final point is on the intended amendment by the Minister on the Elections Act. The Minister wants to amend the Elections Act and I want to applaud him for this. He has seen the weakness in Section 22(1) of the current Elections Act. I want to support this because after going on the ground, we set a very high standard for councillors where we provided that councillors must have a minimum of Form Four education plus some form of post secondary education. That is all very well. We want to move towards that in future but at the back of my mind, I am thinking about this woman and there are very many such women in this country. They are not just limited to Kakamega. For example, a woman leader of Maendeleo ya Wanawake who has built a lot of experience, she has been a councillor for five years and does not have that post Form Four education, but this institutional memory; that experience she has picked from serving as a councillor actually makes her a notch higher than even somebody who is a diploma holder. I will be supporting my colleague who wants to propose that, yes, we retain the Minister’s amendment but further provide that people who have served as councillors should be given an opportunity to use that service as the equivalent of post secondary education and that they enjoy this window not indefinitely but they use this window for only one term, though an hon. Member is suggesting two terms. That way, we will have embraced the desire of a high standard and we will not have knocked out very good leaders who obtain both in the women world and in the male world."
}