Mr President, Ladies and Gentlemen
On my own behalf and on behalf of the Judicial Service Commission, which I chair, I am pleased to present to you these 11 women and men of distinction who shall serve henceforth as judges of the Employment and Labour Relations Court.
They have emerged from the usual highly competitive and meticulous selection process by which the Judicial Service Commission has distinguished itself. They enjoy the same status as judges of the High Court and have, therefore, been weighed and measured on the same scales used to assess the suitability of their colleagues.
Every time the Constitution spells out something that seems obvious, it is because we previously convoluted the simple and made nonsense of uncontestable truths. So, for the avoidance of doubt, labour relations have been included in our Bill of Rights. The framers of our Constitution decreed the creation of a specialised court for employment and labour relations not just for good order and administration, but to guarantee the rights it bestows on those in the labour sector as employers, employees or regulators.
For the first time in our country’s history, the Employment and Labour Relations Court will be located in the Judiciary and shall fall under the purview of the Chief Justice. It shall enjoy independence while arbitrating between employees, employers and the Executive, while benefiting from the financial and accountability systems within the Judiciary.
A perceived lack of independence on the part of the court has resulted in tumultuous and sometimes disruptive disagreements between various role players in the labour sector.
The Employment and Labour Relations Court will deal exclusively with industrial relations, which have continued to grow in volume and complexity over the years. While the establishment of the Employment and Labour Relations Court is a welcome relief, easing pressure on the High Court as it does, it is important to appreciate our changing circumstances and the likely increase in employment-related litigation.
Only a few years ago, the Industrial Court would receive 500 cases a year, heard by between two and five judges. In recent times, the number of cases has risen dramatically to 2,000 a year. At the full capacity allowed under the law, the 15 judges of the Employment and Labour Relations Court would be required to hear slightly over 130 cases.
The Judiciary will ensure that the judges sworn in today and in the future will receive sufficient exposure and training to enable them to address the emerging issues and create a new jurisprudence in labour law.
Kenya has stated its intention to create a globally competitive and prosperous nation with a high quality of life. People and their labour are critical to the realisation of this ambition. Our social development must also be measured by how far we go in realizing our Social Economic Rights as spelled out in Article 43 of the Constitution. Stabilising industrial relations by arbitrating fairly and expeditiously in employment disputes could contribute building social security in Kenya. I appeal to the judges who will preside over this court to exploit the alternative dispute resolution mechanisms set out in the law to the full, and only engage in adversarial processes as a last resort.
The cases that require this court’s attention are spread all over the country. This court can no longer be characterised by its central tendency towards Nairobi. The Employment and Labour Relations Court shall be located closest to where it is needed, close to hubs of industry and employment where it can adjudicate the issues before it with knowledge and sensitivity. That is why Mombasa, Kisumu, Eldoret, Nakuru and Nyeri will be natural starter stations for this court. Going forward, more courts will be established where they are needed.
Finally, I acknowledge that new things can be scary. The establishment of an Employment and Labour Relations Court is not likely to be different. Those who may feel apprehensive about these changes should take comfort in the clarity that the Constitution provides on labour relations. We are fortunate to have several members of the former court as members of the new Employment and Labour Relations Court. The blend of institutional memory and fresh blood should spur this court to seize the challenges our unique environment presents and tackle them forthwith.
I wish to end with an appeal to all stakeholders to work with the Judiciary to get this court to a flying start, and devolve to the places where it is most needed.
DR. WILLY MUTUNGA, D.Jur, SC, E.G.H.,
CHIEF JUSTICE/PRESIDENT, SUPREME COURT OF KENYA