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.
Thank
you.
DR. WILLY MUTUNGA, D.Jur, SC,
E.G.H.,
CHIEF JUSTICE/PRESIDENT, SUPREME
COURT OF KENYA
