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Kenya: Lawyers And Employers Lock Horns With Attorney-General On Labour Laws
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The Nation (Nairobi)
21 May 2008
Posted to the web 21 May 2008
Sam Kiplagat
Nairobi
The Work Injury Benefits Act is among the labour laws which came into force on December 20, 2007.
Lawyer Anthony Ombwayo who represents the AG in a case in which the Law Society of Kenya is challenging new labour laws. Photos/PHOEBE OKALL
But instead of being celebrated, the Act has been challenged by lawyers and employers.
The Law Society of Kenya (LSK) was the first to raise the red flag saying it was mandated by law to protect and assist the public in all matters related to law.
The LSK went to court seeking to annul some sections of the Act if not the whole of it.
The new Act says: "Every employer shall obtain and maintain an insurance policy, with an insurer approved by the Minister (for Labour) in respect of any liability that the employer may incur under this Act to any of his employees.
Sub-section (2) says, the minister may exempt from the provisions an employer who provides and maintains in force a security which complies with the requirements of the new law.
Commit offence
Security consists an undertaking by a surety approved by the minister to make good any failure by the employer to discharge any liability which he may incur under the Act to any employee up to an amount approved by the minister.
Any employer who contravenes the provisions commits an offence and shall on conviction be liable to a fine not exceeding Sh100,000 or to imprisonment for a term not exceeding three months, or both.The LSK argues that some sections violate constitutional rights and freedoms. The lawyer cites section 7(1) as among those in violation of constitutional rights.
It requires that the insurer to be approved by minister and Human Resource Department.
This, LSK argues , did not consider the fact that some employers had medical and insurance policies.
Another section cited as troubling is sub-section 4 which makes it criminal for an employer to fail to obtain and maintain an insurance cover approved by the minister.
"The sub-section violates the constitutional entitlement to a fair trial set out in Section 77(1) of the Constitution and further authorises unlawful acquisition of property contrary to Section 75(1) of the Constitution," said LSK lawyer Fred Ngatia.
Initially, employers only insured workers earning Sh33,333 a month, but the new Act accommodates all employees.
Sub-section 5 says that compensation for permanent disablement shall be calculated on the basis of earnings for 96 months subject to the minimum and maximum amounts determined by the minister.
It is this eight-year compensation that Kenya Association of Manufacturers has been opposing, using the case of employees whose take-home salaries run into six-digit figures.
For instance, a worker earning Sh50,000 a month would expect compensation of Sh4.8 million while the one getting Sh1.2 million a month would expect Sh115.2 million in case of permanent disablement.
Mr Ngatia also says Section 16 of the Act prevents an employee from instituting court action for recovery of damages for injuries or diseases specified in the Act. The society also took issue with Section 23 (1) which gives the director of Occupational Safety and Health Services the power to decide any claim or liability.
Mr Ngatia says the move is akin to giving the director judicial powers which is vested in courts.
"Judicial power is vested upon the Judiciary by Section 60 of the Constitution and that power cannot be donated to the director. He is not independent and impartial as envisaged by Section 77(9) of the Constitution," he said.
These and other sections will be what Mr Justice Jacktone Boma Ojwang will be determining Thursday.
Another section challenged is section 58(2) which seeks to block cases pending in court touching on labour from proceeding.
Filed prior
The said section says that any claim filed prior to the commencement of the Act shall be deemed to have been lodged under the provisions of the Act.
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The attorney-general, through lawyer Anthony Ombwayo, disagreed with the argument, saying LSK had misinterpreted the Act.
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