The Kenya Union of Post Primary Education Teachers (Kuppet) is reeling from a litany of cases revolving around amendments to its Constitution, a bid to scrap the retirement age and compel branch officials seeking national office to resign their current positions.
Petitions and counter petitions have been filed before the Employment and Labour Relations Court by members and officials in what has put on the spotlight national officials led by national chairman Omboko Milemba and Secretary General Akello Misori.
It has pitted the old guard in the union seen as attempting to cling to office and an impatient youthful lot who feels it is their time to lead.
Consequently, an attempt by four teachers who are KUPPET members to have the retirement age limit for union officials scrapped has encountered legal hurdles.
The litigants – Regina Kinoti, Willy Kipkoech Kemboi, Hillary Kibet Chepkwony and Joseph Nzulai – had in proposals contained in court filings sought to compel branch officials seeking to contest for national positions to resign from the offices they hold before offering their candidature for the top seats.
In the new twist, they also sought to have three out of the 10 elected officials per branch be recognised in the union statutes as a sufficient quorum for a Special Delegates Conference.
It came just as top Kuppet officials geared to sign consent with the petitioners and Registrar of Trade Unions before Justice Mathews Nderi Muma of the Employment and Labour Relations Court that would have kicked in far-reaching constitutional amendments.
The teachers moved to court in what they stated in the affidavits filed by Obel and Company Advocates, was to align the KUPPET constitution with the Constitution of Kenya, 2010 and the Labour Relations Act of Kenya.
“In keeping with Article 27 of the Constitution of Kenya, there shall be no retirement age for elective positions in the union,” they averred in court filings.
In effect, if one is elected to office, he or she could serve in the position for life, according to the proposed changes.
In the document whose signing has temporarily been put off until the counter-petition is heard and determined, the litigants also sought to have Members of Parliament retain their positions in the union and serve part-time in the office.
“In alignment with the electoral laws of Kenya, the union constitution shall retain the provision making it mandatory for branch officials desirous of vying for National positions to resign prior to doing so,” the legal documents state.
They also rooted for the two-third gender rule, regional balance and inclusion of persons living with disability in the national organs of the union leadership.
Had the drafted agreement been signed, it would have, as provided in the last clause, compelled the National Governing Council to meet within seven days to convene the Special Delegates Conference to ratify the constitutional changes.
In what appears to be an avalanche of court cases (it is the third case that the union has been dragged to court within a month), that has opened the lid on the union's simmering leadership crisis, the move has been opposed by five branch officials on behalf of members of the union from 47 counties.
William Lengoyiap, Mathew Pkorir Merimuk, Peter Omondi Oluoch, Faith Jebichi Kebut and Charles Kiprotich Ngeno have filed a petition before Justice Nderi, which lists Kuppet, Registrar of Trade Unions and the four union members - (Kinoti, Kemboi, Chepkwony and Nzulai) as respondents, seeking constitutional changes.
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 Baringo branch.
They are challenging the alleged illegal change of the union’s constitution that shifted the retirement age for officials from 60 to 65 years and demands that branch officials desiring to run for national office in the union resign from their positions, at least 31 days before the election.
It has also allowed officials holding parliamentary seats and other public offices to be full-time union officials.
Secretary General Akello Misori, Treasurer Mwethi Njenga and Organizing 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.
In the court documents filed by Otao and Associate Advocate, the officials are challenging the legality of MPs working full time as union officials while drawing salaries as public officers in violation of 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 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.
They stated that 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).
“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 can not vote” The petitioners stated.
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 full-time basis.
Changes introduced in the disputed constitutional amendments include that - members of the National Executive Board (NEB) 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, that the mandatory retirement age of the union officials shall be 65 years.
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 November 20, 2017, some officials at the KUPPET secretariat unilaterally amended the 2012 constitution by introducing Articles that 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.
According to the petitioners, Article 25 of the union's 2012 constitution sets out unambiguous conditions for how it could be amended, including a public participation process in which proposals would be circulated in all branches for consideration and discussion by members at 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," the documents said.
“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.
“The impugned 2017 Constitution is a document that resulted from an illegality as the said amendments were never proposed by the members, neither was 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 Kenyan Constitution).” The petitioners said in the court filings.
The petitioners said they, along with other union members and officials, had questioned the imposition of illegal constitutional amendments, but the union secretariat had failed to respond.
“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 said.
