Justice Jackton Boma Ojwang nullified several sections of the Work Injury Benefits Act (WIBA), an indication of poor drafting by the AG’s office. This effectively takes labour legislation back to the state before WIBA’s enactment, much to the commercial benefit of lawyers who had made a thriving business of these compensation suits. By Albert Muriuki.
The judgment by Justice Jackton Boma Ojwang in favor of the Law Society of Kenya (LSK), repealing over four sections of the Work Injury Benefits Act 2007 (WIBA), was a precedent setting judgment. In addition, the judgment was also a move by a lawyer in the bench to protect his colleagues in practice. Since its enactment, WIBA had basically put on hold hundreds of thousands of cases brought in court by workers against their employees. For many lawyers, these cases were their main stay, and a prior ruling by Justice Ojwang (that he substantially alluded to in the current judgment) ensured that the cases were not going to lay dormant in court, but would be heard and determined.
These two decisions by the High Court have serious ramifications for the labour industry in the Kenya, and the recent media attention they have elicited is indeed warranted. In total, sections 4, 7(1) and (4), 10(4), 16, 23(1), 25(1) and (3), 52(1) and (2) where all nullified, one of the largest expunging of sections of an act by a Kenyan court.
Disgruntled Legal Profession
Through a gazette notice dated 16 May 2001, the Attorney General had appointed a committee of 17 persons to review all the labour laws and recommend appropriate legislations to modernize Kenya’s labour laws. The committee submitted a report in April 2004, which was the basis for the Work Injury Benefits Act, 2007. In January 2008, the Minister for Labour gazetted 20 December 2007 as the date on which the new act would come into force, although this was later changed to 2 June 2008.
But lawyers were livid, and the LSK received numerous complaints from its members regarding this issue: With the passing of WIBA and specifically section 16, employees had been prevented from instituting court action for the recovery of damages for injuries arising from accidents and in court, pending cases were adjourned – bad news for lawyers specialising in work related injuries and suits. Similarly, after the passing of WIBA, judgments that had been delivered could not be executed, holding millions of shillings that had been offered to the clients who had won the cases.
The Kenyan law does not allow lawyers to use their own resources to institute cases for their clients and then taking their due at the completion of the case. But in matters to do with work related injuries, especially in industrial and manufacturing companies and in flower farms, it is common knowledge in legal circles that this is what lawyers often do, and then take a percentage of the compensation given to the client. It is not uncommon to find lawyers who have specialized in such cases.
It was not a surprise then that the LSK was inundated by numerous calls from its members to institute proceedings and have the relevant sections done away with. Indeed, this was the main reason the LSK went to court and why the Central Organization of Trade Unions (COTU) and the Federation of Kenya Employees (FKE) joined forces with the government to try and defend the new law. The two have gone on record stating that they are considering appealing the decision.
Contentious and Repealed Sections of WIBA
Apart from section 16, the other sections that where nullified included sections 4, 7 (1) and (4), 10 (4):
Section 4 defined an “employer” as any person who employs an employee and includes the legal personal representative of a deceased employer; any person controlling the business of an employer; and the government. Maybe this was an error in the typing and reading of justice Ojwangs judgment, but for now, this means that Kenya now does not have any legal definition of an employer and the old laws and common practice will have to be followed.
The LSK argued that section 7 (1) of WIBA created a new obligation to “obtain and maintain an insurance policy” from an insurer approved by the Minister, in respect of such liability as an employer may incur towards employees, and since section 4 of the Act makes it a criminal offence to fail to obtain and maintain such an insurance cover, the two sections were unconstitutional and should be declared a nullity because one is deprived of the freedom, conferred by section 80(1) of the constitution, to insure its employees with any licensed insurance company. Similarly, the obligation imposed on an employer to commit additional funds for obtaining and maintaining the insurance policy required by WIBA, constitutes a taking of one’s property contrary to section 77 of the constitution.
The Attorney General responded that section 7 does not take away the employer’s right to choose an appropriate insurer, and the section was therefore not unconstitutional as the employer has the liberty to seek the minister’s approval of the already existing medical and insurance policies and that the imposition of the fine for failure to comply was meant to enforce compliance and therefore cannot be said to be an illegitimate exercise of the state’s powers.
However, in declaring section 7(1) null and void, Justice Ojwang stated that the argument that by imposing upon the employer the burden of insuring the employee against all adversaries, including adversaries occasioned by the employee’s criminal activities, is taking away the employer’s property rights and deploying the same to establish something akin to a national social insurance system. Although the demerits of this had been considered by the Attorney General’s task force, it was dropped for convenience’s sake, “and that fact by itself suggests that compulsory insurance of employees as provided for in the Work Injury Benefits Act was glibly cast as an encumbrance upon the employers rights,” said justice Ojwang. “(The) effect, it is apparent to me, is to qualify the property rights of the employer which are protected under section 75 (1) of the Constitution, and such legislation thus runs into conflict with the terms of the Constitution, which renders null the provisions of Section 7 (1) of the Work Injury Benefits Act, 2007.”
Section 10(4) rendered an employer liable to paying compensation to an injured employee even though the employee was at the time of the accident not carrying out his employer’s instructions or even when his acts contravened the law. It is now left to the court to determine on a case by case basis whether such an employee is entitled to compensation.
The court also voided Section 23(1) that empowered the Director of Occupational Safety and Health Services to make inquiries as are necessary to decide upon any claim or liability.
Also nullified were sections 25(1) and (3) that required an employee claiming compensation to be examined by a medical practitioner designated by the director or the employer with the approval of the director. This was found to be discriminatory. During the drafting of the law, representatives of employees argued that some doctors who were sought by the claimants and their lawyers were in fact in collusion with the claimants and lawyers and were out to maximize the compensation. The main reason why the section was included was to safeguard against errant doctors, but as the judge stated in his decision, to give these powers to one sole body was likely to be unproductive. Indeed, with Kenya’s history of corruption, this would have most likely been a source to enrich the vetting body.
Also found to be null and void were sections 52(1) and (2). This sections permitted the Director of Occupational Safety and Medical Services to review, vary or uphold his initial decision on a matter and make provision for the filing of appeals to the industrial courts by only the objector and not any affected party to the case.
Poor Drafting of Laws by the Attorney General’s Chambers
WIBA was taken to Parliament two months before the dissolution of parliament for the 2007 general elections. According to Justice Ojwang, this might have contributed to a lapse in scrutiny, and members of the house had no opportunity to subject the law to the requisite committee deliberations. The bill was passed into law the very same day it had been received in parliament.
In court, the arguments by the Attorney General’s lawyer were “not so much a focused analysis and disproof of the constitutional arguments,” said justice Ojwang, “but rather a plea of the meritorious intentions, and about the substantial works which the state mounted in the background to the drafting of the Work Injury Benefits Act, 2007.
However, that a Court could so daringly and succinctly declare over four sections of a law null and void means that the drafters of the law overlooked fundamental principles of legal draftsmanship. One of the basic tenets of any law is that it must pass the ‘constitutionality principle’, i.e. it should be subjected to a thorough analysis to ensure that it cannot be challenged in court as unconstitutional.
According to the LSK, there was an overwhelming influence of the Director of Occupational Safety and Health Services and also the minister, who controls the choice of insurance companies to obtain cover from, and this was therefore unconstitutional. Justice Ojwang found this argument valid and as raised in respect of section 7 (1) of WIBA. Of importance, the judge noted that “the tendency for those wielding executive power is to distort such open-ended power donations, for purposes inimical to the enjoyment of constitutional rights by the citizen.” Clearly the judge was aware of how such powers can be abused in a country like Kenya.
That the LSK could so comfortably challenge the new law and have huge chunks of it rendered unconstitutional shows that the drafters at the AG’s office have performed poorly and as justice Ojwang said in his judgment, even failed to bring forth relevant cases in court to support their position. This judgment was a big indictment of the AG’s chambers. As the judge put it: “It is clear that the impugned statute has shortcomings of drafting. If it is to function as an integral law, then the Attorney General, undoubtedly, will appreciate the need for a comprehensive drafting scrutiny and reformation.”
Conclusion
It is worth noting that the judgment does not exclude employers from liability to employees for work injuries. Sections 10(1) and (2), which have not been nullified, provide that an employer is liable to pay compensation in accordance with the provisions of WIBA to an employee injured at work. The sections state that an employee who is involved in an accident resulting in the employee’s disablement or death is subject to the provisions of the act, and entitled to the benefits provided for under this act.
However, the security that both employee and employer would have had that the employer’s liability was covered by an insurer no longer exists with the removal of Section 10(4). This effectively takes labour laws back to where they were previously, and it is now left to the court to determine on a case-by-case basis whether such an employee is entitled to compensation. Lawsuits can now be filed under common law or any other applicable law in Kenya in addition to WIBA, creating, it can be argued, the same uncertainties that WIBA set out to clear.
Companies were indeed loosing a lot of money to compensation claims, but if the spirit of the drafters was to be considered, the main aim was to curtail lawyers from enthusiastically taking up compensation cases, some of which had been fraudulent, and aggressively pursuing them to make money. The AG will now have to draft a new law that conforms to the decision of Justice Ojwang. Due to the long procedures required, and the slow nature of the legislative working of Kenya, the best option is for COTU and the FKE to aggressively pursue the appeal and hope that the decision of Ojwang is overturned. If not, the law might take up to three years to be confirmed back to standards. In the meantime, this case was, in fact, a big win for lawyers.
|
Subscribe to this comment's feed
Show/Hide comment form
