Kenya Human Rights Commission/Kenya
The Facts
1. The university academic
staff from the four public universities in Kenya (University of Nairobi, Kenyatta
University, Moi University and Egerton University) met and resolved to form
an Umbrella Trade Union to represent their interests in negotiations with
their respective employers. They decided
to call their union, the Universities Academic Staff Union (UASU).
2. On 25 May 1992, they submitted
an application for registration to the Registrar of Trade Unions.
The Registrar acknowledged the receipt of the application documents
the same day. However, there was no further
replies from either the Registrar General, or the Attorney General.
3. In June 1993, the UASU
interim officials wrote to the Attorney General seeking audience with him
to discuss UASU’s registration. The
Attorney General did not reply to this letter.
4. Due to the lack of response, the UASU decided in November 1993 to go on
strike 29 November 1993. The notice
of the intended strike was issued to the Attorney General, the Registrar and
the Vice-Chancellors of the public universities.
A copy of notice was also delivered to Kenya’s President Daniel Moi,
who is also the Chancellor of all the public universities.
5. On 24 November 1993 the
Registrar refused to register UASU on the grounds that “the union is used
for unlawful purposes and as such peace, welfare and good order in Kenya would
otherwise be likely to suffer prejudice...”
6. The strike began on 29
November 1993 and court proceedings initiated on 23 December 1993, challenging
the Registrar’s decision to reject their application for registration as a
trade union.
7. On 27 December 1993, during
the swearing-in of two newly appointed judges of the High Court of Kenya President
Moi, who is also the Chancellor of the public universities, stated that the
government would never register UASU despite the fact that the matter was
already in court. He reiterated the
government’s position on 31 December in a public statement. He again repeated that the government would
not allow the registration of UASU on 25 February 1994 and further stated
that the government would take stern action against the leaders of the UASU.
8. Justice A.B. Shah, one
of the new judges sworn in on 27 December 1993, and who was previously the
President’s lawyer, heard an application filed by University of Nairobi UASU
chapter officials seeking to restrain eviction from their university housing
until the cases against the Registrar challenging the rejection of registration,
and their purported dismissal from the university were fully determined.
Justice A.B. Shah rejected the application.
9. All the national officials
of UASU have been arrested and harassed since the strike begun in November
1993. On 10 December 1993, the national
interim officials were arrested while proceeding to Egerton University for
a meeting. No charges were pressed
and the officials were released the following day.
Dr Korwa Adar was again arrested on 25 February 1994 from his house
after the President warned that action
will be taken
against UASU leaders. Dr. Adar was
charged with inciting students and colleagues to violence.
Procedure Before the Commission
10. The communication is dated
8 March 1994 and was received by the Commission on 2 May 1994.
11.
The Commission was seized of the communication at its 16th
Session in October 1994 and it was decided that the Government of Kenya should
be notified of the complaint against it for comments.
12.
On 10 January 1995, a letter was sent to the complainant asking
what had been the outcome of the court
case respecting the refusal of the Government to register the union
in question. On the same date a notification
was sent to the Government informing it of the seizure of the communication
during the 16th Session and that the admissibility of the communication
would be considered at the 17th Session.
13. At the 17th
Session the 3 month period given to the Government of Kenya to respond to
the communication had not yet elapsed. The
case was therefore deferred to the 18th Session.
14. On the 20 April 1995, letters
were sent to both the complainant and the Government of Kenya, stating that
the case would be considered at the 18th Session and requesting
the Government of Kenya’s response to the communication and information from
the complainant on the pending court case.
The Law
15. Article 56 of the African
Charter reads:
Communications ... shall be considered if they: ...
(5) Are sent after exhausting
local remedies, if any, unless it is obvious that this procedure is unduly
prolonged...
16. The
most recent information the Commission has, provided by the complainants themselves,
states that the communication is still pending before the courts of Kenya.
The complainant has therefore not exhausted all available local remedies.
FOR THE ABOVE
REASONS, THE COMMISSION
Declares the communication inadmissible without making any judgements
as to the merits.
18th Session, Praia, Cape
Verde, October, 1995.