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|Case Number:||Petition 294 of 2013|
|Parties:||Kenya Union of Domestic, Hotels, Education And Allied Workers (Kudhehia Workers) v Salaries and Renumeration Commission|
|Date Delivered:||25 Jul 2014|
|Court:||High Court at Nairobi (Milimani Law Courts)|
|Citation:||Kenya Union of Domestic, Hotels, Education And Allied Workers (Kudhehia Workers) v Salaries and Renumeration Commission  eKLR|
|Advocates:||Mr. Nyamodi for 1st Respondent Miss Muchiri holding brief for Mr. Obura for 2nd Respondent Miss Ngesa for Petitioner|
|Court Division:||Constitutional and Human Rights|
|Advocates:||Mr. Nyamodi for 1st Respondent Miss Muchiri holding brief for Mr. Obura for 2nd Respondent Miss Ngesa for Petitioner|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO.294 OF 2013
KENYA UNION OF DOMESTIC, HOTELS, EDUCATION
AND ALLIED WORKERS(KUDHEHIA WORKERS).........................PETITIONER
SALARIES AND RENUMERATION COMMISSION.................1ST RESPONDENT
ATTORNEY GENERAL.........................................................2ND RESPONDENT
The Petitioner's Case
“(a) By deciding to promulgate the Salaries and Remuneration Commission (Remuneration and Benefits of State and Public Officers) Regulations, 2013 [the] Respondents were in breach of their constitutional obligations under Articles 2(1), 2, 3, 4, and 5, Article 3(1), 10, 19, 20(1), (2) and (3), 21(10), 22, 23, 33, 36,4(1), (2), (3), (4) and (5), 156, 230, 260(1), (2) and (3) of the Constitution and thus their decision was null and void.
(b) The Salaries and Remuneration Commission (Remuneration and Benefits of State and Public Officers) Regulations, 2013, Legal Notice No.2 issued under the hand of the Chair-lady of the Salaries and Remuneration Commission and dated 16th January 2013 is illegal, unlawful, ultra-vires, mala-fides, null and void to the extent of their inconsistency with the Constitution.
(c) The descriptions of the employees in the state organisations represented by the petitioners and public Servants or State officers and that they are subject to the setting of their salaries by the Salaries and Remuneration Commission is illegal, null and void and inconsistent with the descriptions as stated in Article 260 the Constitution and Section 2 of the Salaries and Remuneration Commission Act, 2011.
(d) That Regulation 18 of the Salaries and Remuneration Commission (Remuneration and Benefits of State and Public officers) Regulations, 2013, suggesting that the employees of the State Corporations, wrongly categorised by the Respondents as being subject to the setting of the salaries by the 1st Respondent and that they are not allowed to be consulted on the formation of Collective Bargaining Agreements as allowed by Article 41, is illegal, ultra- vires,null and void to the extent of their inconsistency with the Constitution.”
The 1st Respondent's Case
The 2nd Respondent's Case
“(1) That the Petition is misconceived and is an abuse of the process of this Honourable Court because Article 230 (4) of the Constitution clearly states that the 1st Respondent herein has the mandate to advise the national and county Governments on the remuneration and benefits of all public officers.
(2) That members and employees of state corporations and or parastatals are public officers within the meaning of Article 260 of the Constitution and it therefore follows that the 1st Respondent has the mandate to advise the national Government on issues of their remuneration and benefits.
(3) That parastatals and or state corporations are creatures of the national Government, … are fully owned by the Government and responsibilities of the staff lie within the Government and therefore their workers are public officers.
(4) That the 1st Respondent was acting within its constitutional and statutory mandate in promulgating the Salaries and Remuneration Commission (Remuneration and Benefits of State and Public officers) Regulations, 2013.
(5) That the 1st Respondent has the constitutional and statutory jurisdiction to regulate the salaries and remunerations of all persons paid out of public funds as defined under the Public Funds Management Act.
(6) That the implementation of the Salaries and Remuneration Commission (Remuneration and Benefits of State and public Officers) Regulations, 2013 will not in any way interfere with the rights and freedoms of the Petitioners' members and employees of state corporations and or parastatals.”
For these reasons, he seeks dismissal of the Petition and regarding a letter dated 11th October 2012 in which the Attorney General had taken a contrary position to the above, he states that his instructions as regards the present Petition are as above and he had nothing to say about the content of that letter.
Issues for determination
(i) Whether employees of parastatals and state corporations are public officers and or state officers.
(ii) Whether the SRC acted within its constitutional mandate in setting and or reviewing the salaries of employees in parastatals and state corporations.
(iii) Whether regulation 18 of the SRC Regulations is constitutional or ultra vires the constitutional mandate donated to SRC.
(iv) Whether there was public participation in the enacting of the SRC Regulations.
(v) Whether the orders sought should be granted.
Whether employees of parastatals and state corporations are public officers.
“(a) Any state officer; or
(b) any person, other than a state officer who holds a public office”.
“State office” means any of the following offices—
(b) Deputy President;
(c) Cabinet Secretary;
(d) Member of Parliament;
(e) Judges and Magistrates;
(f) Member of a commission to which Chapter Fifteen applies;
(g) holder of an independent office to which Chapter Fifteen applies;
(h) Member of a county assembly, governor or deputy governor of a county, or other member of the executive committee of a county government;
(j) Director of Public Prosecutions;
(k) Secretary to the Cabinet;
(l) Principal Secretary;
(m) Chief of the Kenya Defence Forces;
(n) Commander of a service of the Kenya Defence Forces;
(o) Director-General of the National Intelligence Service;
(p) Inspector-General, and the Deputy Inspectors-General,of the National Police Service; or
As can be seen, none of the Petitioners hold the above mentioned offices and I will not belabour that point, and the next question is whether the Petitioner's members hold public office. My answer to that question is in the affirmative and I will say why shortly.
“an office in the national government, county government or the public service, if the renumeration and benefits of the office are payable directly from the Consolidated Fund or directly out of money provided by Parliament”.
What I gather from the above definition is that the criteria for determining whether one is a public officer is quite clear and requires no more than a literal interpretation. First, the person must hold an office either in the national government, county government or public service; secondly, the renumeration and benefits of that officer must be payable directly from the Consolidated Fund or directly out of money provided by Parliament.
“as the collectivity of all individuals, other than state officers, performing a function within a state organ”.
'State organ' in turn has the meaning of “a commission, office, agency or other body established under the Constitution”.
Following these definitions, whereas the Petitioner's Members are not employees of any body established under the Constitution, it is clear that the provisions of Article 260 must be read together with the provisions of Article 232 of the Constitution which sets out the values and principles of public service. The reason for that is not idle; it is a rule of Constitution interpretation that the constitution must be read as an integrated whole and no one particular provision destroying the other but each sustaining the other. This is what has now come to be known as the rule of harmony - See Tinyefuza v Attorney General Constitutional Appeal NO. 1 of 1997 for a discussion on the subject.
“(2) The values and principles of public service apply to public service in;
(a) All state organs in both levels of government; and
(b) All state corporations”.
“an officer, employee or member including unpaid, part time, temporary officer or employee or member of any of the following:-
(a) The Government or any department, service or undertaking of the Government;
(b) The National Assembly or Parliament;
(c) Local Authority;
(d) Any corporation, Council Board, Committee, or other body which has power to act under and for purposes of any written law relating to local Government, or public utility or otherwise to administer funds belonging to, or granted by the government, or money raised to administer funds belonging to, or granted by the Government or money raised by rates, taxes or charges in pursuance of such law; (Emphasis mine)
(e) Co-operative Society established under the Co-operative Societies Act.”
Although the said Act was enacted in 2003, its definition of public officer is largely in line with the criteria elsewhere above mentioned and as defined by Article 260 as read with Article 232(2) aforesaid save for the reference to local governments which no longer exist. That criteria for avoidance of doubt is that the officer serves in the public service and his benefits are derived from funds set aside by Parliament and in the manner operationalised by Section 2 of the Public Officer Ethics Act above.
“That as allowed by the previous and present Constitutions, the Petitioners are various Trade Unions, representing Kenyan workers working in various state owned organisations”.
At paragraph 23 he clarified that the State owned organisations include some of the institutions from where the Petitioner's members are drawn from. In that regard he stated as follows;
“That we are advised by our advocates on record, which advice we agree to as correct, that our members, the said unionisable employees of inter-alia, The Moi Teaching and Referral Hospital, Kenyatta National Hospital, public universities, Domestic workers, Allied workers, employees in public educational institutions, hotels, workers in Kenya Power and Lightning Company Ltd, KENGEN, NHIF, NSSF, KPA and so many others....”
“(i) The structure of principles and rules determining how a state or organization is regulated.
(ii) The sovereign power in a Nation or State.
(iii) An organization through which a body of people exercises political authority, the machinery by which sovereign power is expressed”.
Taking the first definition of principles and rules determining how a State is regulated and also the second definition of 'the sovereign power in a nation or State' in the context of this petition, Article 260 defines the term 'state' as follows;
“When used as a noun, means the collectivity of offices, organs and other entities comprising the government of the Republic under this Constitution.”
3) Sovereign power under this constitution is delegated to the following state organs, which shall perform their functions in accordance with this Constitution-
(a) Parliament and the legislative assemblies in the county government,
(b) the national executive and the executive structures in the county government
(c) The judiciary and the independent tribunals”.
“It seems to me that the 1st Petitioner has taken a very narrow meaning of 'government' to mean 'executive' and in fact only 'the national executive' in the traditional 'serikali' meaning. The national executive as structured in the Constitution is quite different from the National Government”.
“From these definitions, a Public Officer executes government functions, not for profit or personal interest. His position is created by the Constitution, Act of Parliament; or of Municipality or other legally constituted bodies. The functions and powers of the Public Officer are defined and executed through the law. The public officer is employed to execute government functions and therefore, remunerated directly from the consolidated fund or money authorized by Parliament”.
Whether the SRC acted within its constitutional mandate in setting and or reviewing the salaries of employees in parastatals and State Corporations.
“An Act of Parliament to make further provision as to the functions and powers of the Salaries and Renumeration Commission, the qualifications and procedures for the appointment of the Chairperson and members of the Commission and for connected purposes”.
In furtherance therefore of the powers conferred by Article 230(4) of the Constitution, Section 11 of the SRC Act provides for the functions and powers of the Commission as follows, i.e. that it shall;
“(a) Inquire into and advise on the salaries and remuneration to be paid out of public funds;
(b) Keep under review all matters relating to the salaries and remuneration to be paid out of public funds;
(c) Advice the national and county Governments on the harmonisation,equity and fairness of remuneration for the attraction and retention of requisite skills in the public sector;
(d) Conduct comparative surveys on the labour markets and trends in remuneration to determine the monetary worth of the jobs of public officers;
(e) Determine the cycle of salaries and remuneration review upon which Parliament may allocate adequate funds for implementation;
(f) Make recommendations on matters relating to the salary and remuneration of a particular State officer;
(g) Make recommendations on the review of pensions payable to holders of public offices; and
(h) Perform such other functions as may be provided for by the Constitution or any other written law.”
Whether Regulation 18 of the SRC Regulations is constitutional or ultra vires the constitutional mandate donated to the SRC
“Public Service organisation' means a State organ, a State corporation or national or county Government entity and includes any organisation in the public service established by law.”
“18(1) The Commission shall not negotiate with a trade union when determining, reviewing or advising on renumeration and benefits of state or public officers.
(2) The management of a public service organization with unionisable employees shall seek the advice of the Commission before the commencement of any collective bargaining process with the respective union on the sustainability of the proposal of the union.
(3) Where the collective bargaining process referred to in paragraph (2) is successful the management shall, before signing the agreement confirm the fiscal sustainability of the negotiated package with the Commission.”
In that context, SRC's role is limited to advising the National Government (including parastatals and State corporations) on the remuneration and benefits of their officers hence the provision in Regulation 18(2) 'that the management of a public service organisation shall seek the advise of' the SRC before any CBA negotiations are commenced. Conversely, since trade unions have a direct connection with the SRC when the mandate of the later is critically looked at, there is no lawful basis why SRC should negotiate directly with trade unions. It is not the place of SRC to negotiate with non -state and non-public service organs hence the provisions of Regulations 18(1) above.
Regarding Regulation 18(3), whereas trade unions and public service institutions with unionaisable employees have a right under Article 41(5) of the Constitution to enter into a CBA, SRC's role is limited in that case to invoking Article 230(5)(a) of the Constitution and take into account 'the need to ensure that the total public compensation bill is fiscally sustainable'. To do so, it must necessarily weigh the total public wage bill against individual CBAs and ensure that the same is fiscally sustainable. To my mind and following Tinyefuza (supra), that is the rule of harmonisation and that a right is balanced by the greater public good.
In the end, I see nothing ultra vires or unconstitutional about Regulation 18 aforesaid and on the contrary, it is beneficial to the Petitioner and its members.
Whether there was public participation in the enacting of the SRC Regulations
“(1) Parliament shall-
(a) conduct its business in an open manner, and its sittings and those of its committees shall be open to the public; and
(b) facilitate public participation and involvement in the legislative and other business of Parliament and its committees.
(2) Parliament may not exclude the public, or any media, from any sittings unless in exceptional circumstances the relevant Speaker has determined that there are justifiable reasons for the exclusion”.
While the Constitution is clear that Parliament must involve the public in its legislative business, the issue here is whether public participation also applies to the Commission while it is enacting regulations for effecting the provisions of the enabling statute.
“The Commission may make regulations generally for the better carrying into effect of any provisions of this Act. ”
“The objects and purpose of these Regulations shall be to enable the Commission manage, harmonise and rationalise renumeration and benefits of state and public officers and in particular provide for the procedure for;
(a) submission of renumeration and benefits proposals for State and public officers to the Commission.
(b) reviewing of renumeration and benefits of state and public officers by the Commission;
(c) setting and reviewing of renumeration and benefits for state officers; and
(d) advising on renumeration and benefits for all other public officers”
“The international law right to political participation encompasses a general right to participate in the conduct of public affairs and a more specific right to vote and/or be elected into public office. The general right to participate in the conduct of public affairs includes engaging in public debate and dialogue with elected representatives at public hearings. But that is not all; it includes the duty to facilitate public participation in the conduct of public affairs by ensuring that citizens have the necessary information and effective opportunity to exercise the right to political participation.”
As to what forms of public participation in the law-making process are adoptable, Sachs J In Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others2006 (2) SA 311 (CC), noted that,
“The forms of facilitating an appropriate degree of participation in the law-making process are indeed capable of infinite variation. What matters is that at the end of the day a reasonable opportunity is offered to members of the public and all interested parties to know about the issues and to have an adequate say. What amounts to a reasonable opportunity will depend on the circumstances of each case. ”
“ In order to determine whether there has been public participation, the court is required to interrogate the entire process leading to the enactment of the legislation; from the formulation of the legislation to the process of enactment of the statute. I am entitled to take judicial notice of the Parliamentary Standing Orders that require that before enactment, any legislation must be published as a bill and to go through the various stages in the National Assembly. I am entitled to take into account that these Standing Orders provide for a modicum of public participation, in the sense that a bill must be advertised and go through various Committees of the National Assembly which admit public hearings and submission of memoranda.”
“The Constitution has established a state in which the Constitution is the supreme law and is binding upon the legislature, the executive and all organs of the State. The Preamble of the Constitution sets the achievable goal of the establishment of a society that is based on democratic values,social justice, equality, fundamental rights and rule of law and has strengthened this commitment at Article 10(1) of the Constitution by making it clear that the national values and principles of governance bind all state organs, state officers, public officers and all persons whenever any of them enacts, applies or interprets any law or makes or implements policy decisions. Article 10(2) of the Constitution establishes the founding values of the State and includes as part of those values, transparency, accountability and participation of the people. It is thus clear to me that the Constitution contemplates a participatory democracy that is accountable and transparent and makes provisions for public involvement.”
Whether the Orders sought should be granted
DATED, DELIVERED AND SIGNED AT NAIROBI THIS 25TH DAY OF JULY, 2014
In the presence of:
Irene – Court clerk
Mr. Nyamodi for 1st Respondent
Miss Muchiri holding brief for Mr. Obura for 2nd Respondent
Miss Ngesa for Petitioner
Judgment duly read.