By Suba Churchill
A recent post on social media platform, X by immediate former Makueni County governor, Professor Kivutha Kibwana to Central Organization of Trade Unions (COTU) Secretary General, Francis Atwoli on the occasion of his new born son has once again brought to the fore an ongoing public debate over term limits for trade union officials in Kenya.
The March 28 post was double-edged.
The former governor and law professor posted thus: “I heartily congratulate the @AtwoliDza family for the new arrival in their family. @COTU_K should give their Secretary General a well-deserved paternity leave during which they can also discuss: Should COTU and trade union leadership be a life tenure affair?”
To be sure, the push to impose term limits for trade unions was first raised by Migori County senator, Eddy Oketch, whose Labour Relations (Amendment) Bill, 2024.
The Bill proposed to limit the terms of current and future union officials.
Oketch’s bill was understandably met with strong opposition from individual trade unions and their federations as well.
The youthful senator soon realized that the question of term limits on trade unions is a complex one, with arguments for and against laden with political overtones that neither the opposition of which he is a member, nor the government side seemed enthusiastic to deal with.
Critical actors
Trade unions played a pivotal role in the popular agitation for Kenya’s independence from British colonial occupation, and continue to be critical actors in the country’s post-independence governance and electoral processes.
It is, therefore, not uncommon to see consequential political formations reach out to trade unions for strategic alliances ahead of general elections.
COTU, being the largest umbrella organization for most trade unions in the country, wields immense political influence in the country, hence the constant jabbing and snooping into its internal governance processes and long-held electoral traditions.
Had it been enacted, the Labour Relations (Amendment) Bill, 2024 would have changed the principal law to provide for the term limits for trade union officials in Kenya.
In its memorandum of objects and reasons, the sponsor left no doubt as to who would have been the first casualties of the changes, designed as it was to affect two main clauses of the principal law.
After the short title, the bill went straight for the jugular of its intended targets, stating that the Labour Relations Act is “hereby amended by inserting a new section 34A immediately after section 34 to provide that “an official of a trade union, employers’ organization or federation shall hold office for a term beginning on the date on which the official was elected, and ending when a person is next elected as an official in accordance with section 34”.
Ordinarily statutes are supposed to be retrospective.
A retrospective statute operates for the future.
That is to say, they take effect from the date they are enacted onwards, and not from the date in the past before they were enacted.
For instance, the clause that introduced the two-term limit in Kenya’s electoral procedure in 1992 was retrospective.
Term limits
It is on this premise that then serving president Daniel Arap Moi still contested for the presidency and not only went on to clinch the coveted seat in the year’s elections, but also for another term against a divided opposition in 1997.
But as a result of the retrospective nature of the two-term clause, therefore, Moi’s two-term limit came to a screeching halt in 2002, despite taking over from Jomo Kenyatta upon the latter’s demise way back in 1978.
But the effect of senator Oketch’s bill would have been different.
It had been framed to be retroactive, that is, to operate backwards as of a time prior to its enactment.
It would, therefore, have changed the law from what it was.
In clause 2 of the proposed amendments, the sponsor went further to propose that “a person shall not hold office as an official of a trade union, employers’ organization or federation for more than two terms”.
In clause 3 of the amendment bill, the sponsor proposed, perhaps for the avoidance of doubt that: “existing officials of a trade union, employers’ organization or federation shall be deemed to be duly elected under this Act for the remainder of their term”.
This would have sent a number of trade union officials home, depending on how long they may have been in office, explaining the immediate war cry to rally trade unions for battle against what they rightly perceived as an undue interference in the internal affairs of their unions.
Proponents of term limits for trade union officials argue that it would promote fresh ideas and perspectives in the leadership, and prevent what is largely perceived as inertia.
They also argue that such a move would ensure that new leadership styles are introduced, preventing the same individuals from holding power for extended periods and potentially leading to stagnation.
There would also be increased accountability and transparency, the argument being that new officials are more likely to embrace greater accountability and transparency, fearing that they might be replaced if they fail to represent their members’ interests effectively.
Term limits, they also say, would allow more union members to have the opportunity to lead and represent their colleagues, fostering a more inclusive and democratic union structure.
Extensive experience
But there are also persuasive arguments against term limits for trade unionists.
The most obvious is the disruption of continuity and loss of expertise that the organizations need at this time of global uncertainties in labour relations.
There is no denying that such disruptions can potentially lead to loss of valuable experience and expertise that long-serving officials have accumulated over the years.
Those against term limits have made a powerful argument that it’s largely on account of Atwoli’s extensive experience and expertise in trade union matters that the veteran trade unionist serves not only as the Secretary General of the Kenya Plantation and Agricultural Workers Union, and the umbrella COTU in Kenya but has also risen through the ranks of the trade union movement regionally and internationally, to serve as Chairman of the East African Trade Union Confederation and President of the Trade Union Federation of Eastern Africa.
He also serves as President of the Organization of African Trade Union Unity; member of the governing body of the International Labour Organization; Vice president of the International Labour Conference; as well as Vice-president of the International Trade Union Confederation.
Imposition of term limits from outside trade union structures, therefore, would be an infringement on the autonomy of trade unions and their ability to govern themselves.
The danger with the current focus on term limits is that it has the potential to shift the focus from the core purpose of trade unions of representing the interests of union members to campaigning for elections.
To this extent, the Kenya National Civil Society Centre throws its lot with the leadership of COTU, that as an autonomous organization, the giant umbrella organization of trade unions in the country should be left to manage its internal affairs without undue external interference.
Autonomy of trade unions is an integral part of the enabling self-regulatory environment that voluntary organizations need to thrive, and to deliver effectively on their mandate.
• The writer is the Executive Director, Kenya National Civil Society Centre, and Chairperson, Horn of Africa Civil Society Forum; suba_churchill@yahoo.com