The Kenya Union of Post-Primary Education Teachers (Kuppet) is staring at a leadership crisis after five of its branch officials moved to court to challenge an alleged illegal change of the union’s constitution that varied the retirement age for top officials from 60 to 65 years.
The contested amendments also demand branch officials desiring to run for national office in the union resign from the positions they hold, at least 31 days before the national poll is held.
It has also allowed officials holding parliamentary seats and other public offices to be full-time union officials.
The teachers' union has also come under the spotlight for its failure to enact the two-third gender rule and integrate teachers with disabilities into their leadership positions.
William Lengoyiap, Mathew Pkorir Merimuk, Peter Omondi Oluoch, Faith Jebichi Kebut and Charles Kiprotich Ngeno have filed a petition in the case before Justice Mathews Nderi Nduma of the Employment and Labour Relations Court against Kuppet and the Registrar of Trade Unions.
Messrs – Lengoyiap, Oluoch and Ngeno are branch executive secretaries for Samburu, Tana River and Narok respectively, Mr Merimuk is the assistant executive secretary for West Pokot while Ms Kebut is the assistant treasurer for the Baringo branch.
It sets the top union leadership on a collision course with the officials and members in the 47 branches across the country.
Secretary General Akello Misori, Treasurer Mwethi Njenga and Organising Secretary Paul Maingi who have attained retirement age, and National Chairman Omboko Milemba and Woman Representative Catherine Wambilyanga – the Emuhaya MP and Busia Woman Representative respectively – are some of the beneficiaries of the constitutional changes.
Noncompliance with the two-third gender rule in its leadership has also featured in the court documents filed by Otao and Associates Advocates.
“The continued non-enactment/ non-implementation of the two-third rule and other provisions against discrimination by virtue of gender, disability, or marginalization continues to deny members of the respondents an opportunity to fully enjoy their rights as espoused under the Constitution of Kenya, 2010” The petitioners state.
The officials are challenging the legality of Members of Parliament working full time as union officials while drawing salaries as public officers in what violates Article 10(2)(c) as read with Article 75 of the Constitution 2010 and Section 26 of the Leadership and Integrity Act.
They cited the case of Mr Omboko Milemba which they said the impugned constitutional amendment had allowed him to serve as full-time union chairman and Emuhaya MP. The union’s Woman Representative Ms Catherine Wambilianga is also the Bungoma Woman Representative at the National Assembly.
“This calls into question his (Milemba’s) objectivity as he is affiliated to one political side and yet he is a chair of a union with members of divergent political opinions. It also limits the effectiveness of such an official in handling the union’s affairs as they might tend to spend more time in their other positions as compared to the union” They aver in court documents.
Kuppet was registered in 1998 and its constitution has been used to legally govern its affairs and business, which was not altered until 2010 ahead of the 2011 general election and was duly registered in 2012 with the office of the Registrar of Trade Unions.
The petitioners aver in court filings that on or about 20th November 2017, some officials at the Kuppet secretariat unilaterally amended the 2012 constitution by introducing Articles that h have infringed on the fundamental rights and freedoms of members thus denying them the right to vie for elective positions or participate in running of the union affairs.
It is the position of the petitioners that the retirement age of the union officials should be 60 years in tandem with that set by the Teachers Service Commission (TSC), the employer and the Public Service Commission (PSC) as government agencies.
“Section 33 of the Labour Relations Act states that no person shall be a voting member of a trade union unless that person is employed in the sector for which the trade union is registered….In this case, all persons who vote in the respondents (KUPPET) have to be employed teachers…someone who is beyond 60 years and is thus retired cannot vote” The petitioners stated.
They said it was illegal to have retirees holding office and vested with voting rights in the union on behalf of members in active TSC employment as it infringes on their (members) labour rights under the Labour Relations Act Section 31(1).
Further, the petitioners stated that members of the union are likely to suffer prejudice when it comes to negotiations being undertaken by Kuppet on their behalf by the officials who are retirees or are holding parliamentary positions on a full-time basis.
Changes introduced in the constitutional amendments include that - members of the National Executive Board shall work on a full-time basis provided that any member who gets engaged as a state officer shall serve the union on a part-time basis, and the mandatory retirement age of the union officials shall be 65 years.
It also states that any branch official contesting for any national position shall resign from his/her position not later than 31 days before the (national) union elections.
Ideally, any official seeking a national position could do so without losing the office he/she holds at the time of the election.
The petitioners state as per the union’s Constitution 2012, Article 25, provides unequivocal terms of how it could be amended including a public participation process with the proposals being circulated in all the branches for consideration and discussion by members during branch General Assemblies.
“Resolutions emanating from Branch General Assemblies (BGAs) would then be forwarded to the Secretary-General who would in turn forward to the National Governing Council for further comments and consideration” They averred in the documents.
“The National Governing Council would after considering the said resolutions from the BGAs, forward them to the Annual Delegates Conference or Special Delegates Conference where the proposals for amendment of the constitution shall be subjected to voting” It states.
They averred that no branch or member of the union proposed the impugned amendments contained in the 2017 constitution being contested.
“Having failed to follow due process in the said amendments, the whole process is illegal, a violation of both the union’s constitution and the Constitution of Kenya, 2010, and thus null and void and therefore, the resulting document which is the impugned 2017 union constitution is void of any legal effect and the same should be struck out”
“The impugned 2017 Constitution is a document that resulted from an illegality as the said amendments were never proposed by the members, neither was the due process followed in reaching the said amendments and further, the impugned union constitution violates express provisions of Article 10 of the Constitution of Kenya, 2010 as read with various other articles (of the Kenya Constitution)” The petitioners states in the court filings.
The petitioners said they, along with other union members and officials, have questioned the imposition of illegal constitutional changes, with no response from the union secretariat.
“Some members of the union have faced discrimination, stoppage of salaries and benefits, denial of entry into meetings of the respondent (union) for the simple reason that they have pointed out and continue to point out the illegalities being perpetrated by the respondent on its members” The petitioners stated.
