Legal Management is a social science an or a discipline that is multi-disciplinary; It studies the society at large, the law, law practice, governance, business organisations and management, and human resource development.[1]
Legal practice management consists of the day to day operations and long range planning and management of a law practice. It includes the management of staff, clients and vendors, workplace facilities and equipment, and financial management.
The main purpose of legal practice management is to guide lawyers in assessing, maintaining and enhancing their quality of service. It also provides a general outline and framework for conducting legal work.
1.1 Historical Background of Legal Practice Management
Law firms as institutions date back to the 19th century. It includes the proceeding development of the modern management theory developed in the United States before the civil war. The leading organisation in the United States that is focused on law practice management is the American Bar Association which assists lawyers in the business phase of the law practice.
The Association of Legal Administrators is another professional organisation that is concerned with legal practice management. In the United Kingdom, most law firms were organized as sole proprietorships, partnerships and limited liability partnerships. The Law Society in the United Kingdom founded in 1825 has set the standard and quality mark of excellence in legal practice management and client care. This is especially in the areas of, structure and strategy, financial management, information management, people management, risk management, client care, file and case management.
In most countries, the legal profession is patterned on Western models. The legal profession in Kenya evolved as a consequence of the introduction of the English legal system through the British colonial government.[2] The imported legal structures greatly displaced indigenous and traditional institutions and processes of dispute settlement.
During the colonial era, Africans did not have the opportunity to access legal education. The lawyers practising in the country were mainly Europeans and Asians, all of whom had received their legal education abroad. There were no facilities for training lawyers within the country at that time.
The most popular form of private practice among Africans was the two man partnership. However, this type of partnership had its own share of problems particularly those that are financial in nature. Unlike other business, lawyers contemplating a partnership did not have the privilege of securing loans from lending institutions. Sole practice was the second choice for most African lawyers though it was a difficult route to take. Many African lawyers could not afford to rent an office at a decent part of the city. The temptation to abuse client’s account was also high. Further, the range of cases one could handle was also limited.
In 1899 Kenya’s first law firm opened shop in Mombasa before relocating to Nairobi. O.B Daly and E.K. Figgis started the practice but registered 38 years later as Daly & Figgis at the Registrar of Business Names.[3] It was followed by firms like Hamilton, Harrison and Matthews (1902) and Kaplan and Stratton (1927) which established domination over the Kenyan legal sector for many years. Later, CMG Argwings Kodhek, first African lawyer in Kenya, opened his practice.
2.0 Legal Framework in Legal Practice Management
In assessing the scope of legal practice management, it is important to look at both local and international statutory[4] provisions governing it. This chapter will focus on; human resource management, finance management and practice regulations that govern lawyers and law firms in Kenya.
In order to start a law firm in Kenya, one has to be an advocate of the High Court of Kenya. An advocate is defined as ‘any person whose name has been duly entered upon the roll of advocates’.[5]
No person shall be qualified to act as an advocate unless he has been admitted as an advocate, his name is on the role of advocates and he has in force a valid practicing certificate.[6]
To be admitted as an advocate, a person should have satisfied certain requirements which include; attained a Bachelor of Laws degree from an approved institution, passed examinations as the Kenya School of Law, attended pupillage under an advocate as prescribed for a period of not less than six months.[7]
The candidate must also be a citizen of good moral standing. Once admitted as an advocate, a person’s name is entered in the Roll of Advocates where one signs against his name in the presence of the Registrar or Deputy Registrar of Court who shall add his signature as a witness.[8]
2.1 Starting Up a Law Firm
There are various statutory provisions that govern the starting up of a law firm.
2.1.1 Registration
2.1.2 Sole Proprietorship
Law firms with just one advocate are a sole proprietorship and are registered under the Registration of Business Names Act Cap 499. This Act requires that all firms having a place of business in Kenya should be registered.
A law firm is an entity that involves itself in the business of law. A business includes every trade, occupation or profession[9] while a business name means the style under which any business is carried on, whether in partnership or otherwise. A firm means an unincorporated body of individuals or corporations, who or which have entered into partnership with one another with a view to carrying on business for profit. This means that being an advocate is a type of business itself while the name of the law firm becomes its business name.
In order to successfully register a law firm as a sole proprietorship, an advocate should deliver to the Registrar a signed statement of particulars containing; business name and address of the firm, the nature of its business, the date of commencement of that business and the full address of every other place of business (branches elsewhere)[10]
A law firm’s name should be registered with the registrar of business names within twenty eight days after the firm commences to use the business name.[11] Upon registration, the Registrar of Business Names issues the law firm with a certificate showing proof of registration.
2.1.3 Partnership
The Partnerships Act No. 16 of 2012 provides for the creation of a partnership in a law firm.
A partnership is a relationship that exists between persons who carry on business in common with a view to making a profit.[12] Two or more advocates can decide to start a law firm through a partnership agreement.
To register a law firm as a partnership, one should deliver to the Registrar of Companies an application for registration together with a statement signed by all the proposed general partners specifying; the name and address of the partnership, the names and addresses of the proposed general partners along with their capital contribution and the date of the formation of this partnership.[13]
Once this is done, the Registrar of Companies issues the law firm with a signed registration certificate that shows the name of the partnership and date of registration.[14]
2.1.4 A Limited Liability Partnership
Limited Liability Partnership Act 2011 governs the nature, registration, conversion, management and winding up of a limited liability partnership.
Two or more persons associated in carrying on a lawful business with a view to making profit may register (the persons) as a limited liability partnership under the Limited Liability Partnership Act 2011.[15] A law firm can be a limited liability partnership depending on how or what the partners agree to create it.
A partner in relation to a limited liability partnership, means a person who has been admitted as a partner in the partnership in accordance with the Limited Liability Partnership Act.[16]
To have a law firm registered as a limited liability partnership partners should submit a signed statement that contains the following information: the name, the nature of business, the registered office and the name, identity documents and nationality of each partner.[17]
This statement should be accompanied by the prescribed fee (if any)[18]. Upon successful registration, the Registrar of Limited Liability Partnerships issues a certificate of registration to the persons who lodged the statement.[19]
Once registered, a limited liability partnership becomes a body corporate with perpetual succession and with a legal personality separate from that of its partners. A limited liability partnership is required to acquire and maintain a common seal that bears its name and to use the seal for the execution of all documents that by law are required to be sealed.[20]
2.2 Nature of a Law firm
2.2.1 Human Resource in the Firm
Human resource basically refers to the people working in the firm and who individually and collectively contribute to the achievement of its objectives.[21] These individuals are said to be the most important and therefore, the most critical asset for any firm. They have to be managed strategically as a result. Their management involves among other functions: recruitment, deployment, compensation, staff development and motivation which can be either intrinsic or extrinsic and for purposes of this study, a study of extrinsic motivation will be relevant.
Armstrong defines extrinsic motivation as what is done to or for people to motivate them. This includes rewards and punishment such as disciplinary action. As regards rewards, advocates are promoted to the rank of Senior Counsel which is not automatic currently and requires the advocate to make an application in the event of an advertisement drafted by the Law Society of Kenya[22]. In addition, in a law firm, associates are motivated by being promoted to partners for their exemplary work. Other forms of motivation will include allowances, paid-up vacations, training and development seminars, recognition, benefits and more.
As regards disciplinary action, the Advocates Act establishes two bodies that are charged with overseeing the discipline in the legal profession; these are the Advocates Complaints Commission and the Disciplinary Tribunal[23].
In the event that an advocate is found guilty of professional misconduct the penalties applicable include[24]: being admonished, or being suspended from practice for a specified period not exceeding five years, or that the name of such advocate be struck off the Roll, or that such advocate do pay a fine not exceeding fifty thousand shillings, or such combination of the above orders as the Tribunal thinks fit or that such advocate pays to the aggrieved person compensation or reimbursement not exceeding five million shillings. Illustrative Case: Daniel Ndung’u v. Director of Public Prosecutions and Another[25], the petitioner was instructed to act in a conveyancing transaction in 2004. He was paid Kshs. 1.1 million which he failed to refund upon the collapse of the transaction. The Disciplinary Committee found the defendant guilty and he was convicted of professional misconduct.[26]
Both reward and punishment are crucial in ensuring the success of the firm as the former encourages hard work and the latter ensures that advocates do what is right by the profession and in effect the firm’s goals are met.huug89p7
2.2.2 The Employer-Employee Relationship
In order to ensure a good employer-employee relationship, there must be regard to the rights of the employee. This is because every human being is born free and equal in dignity and rights.[27] Every person shall enjoy the rights and fundamental freedom of the Bill of Rights to the greatest extent consistent with the nature of the right and fundamental freedom.[28] This provides the base of creation for certain crucial principles drawn from statutory provisions that should be taken into consideration in the day to day management of a firm. The general rules of international law shall form part of the laws of Kenya and any treaty or convention ratified by Kenya shall form part of the law under the Constitution of Kenya.[29] This means that some international laws are also taken into consideration in the running of a law firm to create a good employee employer relationship.
2.2.2.1 Right to Just and Favourable Conditions
Everyone has the right to work, the free choice of employment, to just and favourable conditions of work and to protection against unemployment.[30]
Every person has the right to fair labour practices.[31]
In this regard, and more specifically, a manager of or in a law firm should ensure that :
· They do not take certain actions that will be construed as unfair to the employees or that violate any legislation protecting the employees.
· An employer should provide sufficient supply of wholesome water for use by the employees at the place of employment[32]. Every person has the right to clean and safe water in adequate quantities.
· No employer shall terminate the employment of an employee unfairly. Termination of employment by an employer is unfair if the employer fails to prove that the reason for the termination is valid; that the reason for the termination is a fair reason as it is either related to the employees conduct, capacity or compatibility, or based on the operational requirements of the employer and that the employment was terminated in accordance with fair procedure[33]. All contracts of employment must contain a clause on termination of employment.
· Employers in a firm should ensure that the working environment within the office is not hazardous. It is an implied duty of the employer to take reasonable steps to provide and maintain a safe system of work so as not to expose the employee to risk or injury which the employer ought reasonably to have known. Every occupier (including employer) has a statutory obligation to ensure the safety, health and welfare at work of all employees[34]. Safety and security are key in legal management because all the other functions will only be successfully implemented once the safety and security are put in place, maintained and guaranteed.
2.2.2.2 Right to Leave
Every employee is entitled to not less than twenty one working days of leave with full pay.[35] This goes hand in hand with the right to rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays.[36]
An employee has a right to sick leave of not less than seven days with full pay and thereafter seven days with half pay.[37]
2.2.2.3 Right to Maternity and Paternity Leave
A female employee shall be entitled to three months maternity leave with full pay[38]. Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave with adequate security benefits.[39]
A male employee shall be entitled to two weeks paternity leave with full pay.[40]
2.2.2.4 Right to Medical Attention
Every employer should provide sufficient and proper medical attention for his employees where required.[41]. A person shall not be denied emergency medical treatment.[42] Employers should ensure that they have a good first aid kit in their working premises in case of any emergency situations. An employee is also entitled to health insurance cover during the course of his employment[43].
2.2.2.5 Right to Equal Opportunity
Employees have a right to be promoted in their employment to an appropriate higher level, subject to no considerations other than those of seniority and competence.[44] Every employee in a firm should be given a fair chance in terms of promotion. When giving promotions in a law firm, employers should be fair in their selection and award them to those who rightfully deserve it in terms of their competence, work rate, seniority and discipline.
2.2.2.6 Right to Fair Remuneration[45]
Without discrimination everyone has the right to equal pay for equal work.[46] An employer is liable to pay the entire amount of wages earned by or payable to an employee in respect of work done by the employee in pursuance of a contract of service directly in the currency of Kenya.[47]
2.2.2.7 Equality and Freedom from Discrimination
Discrimination is the unfair conduct of some employees by employers, senior staff members or peers.[48]A person shall not discriminate directly or indirectly against another on grounds such as race, sex, pregnancy, marital status, health status, disability and age among others[49]. No employer shall harass or discriminate directly or indirectly against an employee on any such basis[50].
2.2.2.8 Freedom from Sexual Harassment
Sexual harassment is defined as resulting when any person, who being in a position of authority, or holding a public office, persistently makes any sexual advances or requests which he or she knows, or has reasonable grounds to know, are unwelcome[51]. Such person is guilty of the offence of sexual harassment and shall be liable to imprisonment for a term of not less than three years or to a fine of not less than one hundred thousand shillings or to both. An employer who employs twenty or more employees should consult with employees or their representatives and afterwards issue a policy statement on sexual harassment which contains a statement that every employee is entitled to employment that is free from sexual harassment, a statement that an employer shall take steps to ensure that no employee is subjected to sexual harassment and a statement explaining how complaints of sexual harassment may be brought to the attention of the employer among others[52]In most law firms, such provisions are made for in the Human Resource manual.
2.2.2.9 Right to Form, Join or Participate In the Activities and Programmes of a Trade Union[53]
In law firms, employers should not prohibit their employees from joining a trade union or participating in its activities and programmes as long as it does not interfere with the terms of contract of employment. The Law Society of Kenya represents, protects and assists advocates in respect to conditions of practice thus employers in a law firm should not prohibit associates from joining this society.
2.3 Financial Management
The Council of the Law Society of Kenya is empowered[54]with the approval of the Chief Justice to make rules with regard to among other things, the keeping of accounts by advocates. There is also a requirement SECTION to annually submit to the Council a certificate by an accountant[55]which should illustrate compliance with the rules regulating keeping of accounts. The society can also make rules regarding the retention or otherwise by advocates of interest earned on moneys received from clients. The same applies to the establishment of a compensation fund for the benefit of client and indemnity for clients against loss or damage arising from claims in respect of any civil liability incurred, or from breach of trust by the advocate or his employee.
2.3.1 The Advocates (Accounts) Rules, 1966
These rules were made to ensure financial management in the legal sector and to be precise, to protect client accounts as is necessary.[56]
Rule 7 categorically prohibits payment of money other than client’s money into the client account. Rule 6 and 7 to a large extent prevent issues of money laundering as much as protect client’s money.
Rule 9 allows an advocate to withdraw money from the client’s account that will be used for carrying out any clients transactions concerning that specific legal matter
Rule 10 provides that in no circumstances may an advocate withdraw from a client account any sum in excess of the amount held for the time being in such account for the credit of the client, in respect of whom the drawing is proposed to be made.
2.3.2 Books of Accounts
Pursuant to Rule 13, every advocate is strictly required to keep at all times, properly written books of accounts as may be necessary. The book shows every receipt, payment, amount held, and expenditure in regards to clients’ money. Such books may either be cash books or ledgers and must be supplemented by records showing the particulars of all Bill of Costs delivered by the advocate to his clients, distinguishing between profits, costs and disbursement.
Under the 1998 Advocates (Practice) Rules, Rule 5 thereof, any money payable by an advocate to a client who is sui juris[57] shall be paid to the client not later than 21 working days from the date on which the proceeds are actually paid/credited into the advocate’s client account.
2.3.3 The Advocates (Remuneration) (Amendment) Order, 2014
The order serves to protect the public from exploitation by advocates by controlling the fees the advocates charge. It prevents advocates from engaging in professional malpractices such as undercutting and unfair competition and also makes legal services affordable to the public and ensures remuneration of advocates so that their lifestyle can reflect the dignity of the profession.[58]
The rationale for undercutting was provided in the case of Ahmednasir Abdikadir & Co. Advocates National Bank of Kenya Ltd[59] that if advocates adhered to the provisions of the Advocates Act against undercutting, the dignity of the profession would be upheld. Further, clients would demand competence upon being charged the prescribed amount and in effect the standards of practice would become the only determiner of fees to be charged by any advocate over and above the prescribed minimum rates.
An advocate shall not set his remuneration at less than is provided by Paragraph 4 of the Advocates (Remuneration) (Amendment) Order. This is a reiteration of the prohibition against undercutting provided under Section 36 of the Advocates Act. It provides for the regulation of the remuneration of an advocate with respect to conveyancing and general business.[60] Schedule 3 provides for the fees to be charged in the formation, incorporation and registration of companies.
It also contains guidelines on how a bill of costs is to be drafted by advocates, how assessment of the fees should be done by the magistrate courts and how taxation of the bills should be prepared by the taxing officer.
A limited liability partnership shall keep accounting and other records that will sufficiently explain the transactions and financial position of the partnership and enable a profit and loss account and a balance sheet to be prepared from time to time that gives a true and fair view of the state of affairs of the partnership[61]. Where the firm fails to keep proper accounting records, the partnership and each of the partners will have committed an offence and is liable on conviction to a fine not exceeding one hundred thousand shillings or imprisonment for a term not exceeding two years or both.
2.4 Advertising and Competition
The Competition Act[62] provides guidelines on restrictive trade practices and serves to protect consumers who in a law firm’s case are the clients. The main objective of this Act is to enhance the welfare of the people of Kenya by promoting and protecting effective competition in markets and prevent unfair and misleading market conduct throughout Kenya.
A consumer or customer is defined as any person who purchases or offers to purchase services. The clients are thus the consumers in a law firm business. A service is any right, benefits, privileges granted or conferred under any contract for or in relation to a private professional practice as is the case with a law firm.
The Act provides that agreements between undertakings or decisions by associations of undertakings which will lead to the prevention, distortion or decrease of competition in trade, in any service within Kenya are prohibited[63].
The Advocates (Marketing and Advertising) Rules, 2014 serve to regulate how law firms advertise or market themselves to clients. Any advertisement made by an advocate shall be; objective, true and dignified, respectful of the professional ethics of the profession and shall not attempt to denigrate another advocate of the profession.[64]
This Act also provides for the specifications that should be provided for in an advertisement and provides prohibition on information that should not be put in an advertisement.[65] Rule 7 provides for the various forms of advertisements that are allowed under this Act. Where an advocate or a law firm does not adhere to these rules of advertising and marketing, he commits an act of professional misconduct and is liable to punishment.[66]
2.5 Client Management
2.5.1 Client Base
A firm can built its client base in the following ways:
2.5.1.1 Walk-In Clients
These are clients who just walk into the firm to seek legal assistance from the advocates. They are first time clients who may have no referrals from either clients or other advocates.
2.5.1.2 Referrals
They may get clients who have been referred to them from other advocates and/or their clients. Other advocates network with the firm such that they send clients their way in matters where their advocates have expertise.
Clients too, after receiving satisfactory legal services from the firm, refer others to their firm.
2.5.1.3 Legal Networks
A law firm may subscribed to an international network of law firms that refer clients to each other e.g. Meritas. For instance, a firm in South Africa would refer to them their clients who have issues while in Kenya.
2.5.1.4 Through Tendering
This is in regards to assignments that are advertised for tenders. For example, government assignments are normally issued through tender notices which the firm bids to.
2.5.2 Client Care
In ensuring that they provide the best care for their clients, a firm trains their advocates on customer relations and sets standards on how to handle them.
They also apply the Advocates Remuneration Order in billing their clients, but it is apt to note that the order only provides for minimums as to the issue of billing.
However, discrete application in billing and appreciation that all cases are unique and may subjectively guide on the billing policy.
LESSON TWO
Front Office Services
2.6 Introduction
Front office is the first customer facing department/room/space of an organization[67]. It is the first port of call for the majority of clients and prospective clients with enquiries. Baker and Riley (1994) observe that front office is where customers gain the first impression of an organization. Front office services on the other hand, refers to the business related activities done at the front desk. These include: customer services, sales and marketing, finance and technical services, among others[68]. Front office should therefore look tidy, welcoming, properly designed and the staff should be adequate and well trained.
Globalisation has brought prosperity and innovation and has also changed the economic landscape. Today, the legal sector is one of the strengths of an economic powerhouse in Kenya. The need and interests of clients, coupled with trust, independence and integrity has been acknowledged as one of the excellence of the legal profession. Corporations, partnerships, companies and sole proprietors have seen the increasing competition in offering legal services and seek the services of only the best. Law firms and other related businesses have woken up to the reality of the need to be in a position to attract and retain real talent. This focus has largely been diverted on the outlook of an organization, the front office.
2.7 Distinction between front office department and communication
Front office and communication department overlap in their service delivery. The difference exists from the realization that front office deals with communication between the customer that walks in the organization’s place of business or one that makes a phone call, Skype call or mails the organization to make enquiries about a certain subject, whereas the communication department relays information to and from the organization to the general populous, including those who are not clients/customers.
The major similarity between the two departments is that they both exchange information, opinion or ideas by writing, speech or visual means or a combination of the three so that the material communicated is completely understood by the recipient[69].
2.8 Importance of front office services
The following are the importance of the front office department:
1. Increase competition with other organizations
A well-furnished, properly organized front office with a calm, charming and welcoming staff will always attract customers by creating a lasting impression on the clients thus influencing their customer experience. A satisfied customer will want to be a frequent customer of the business. This leads to customer retention and boosts an organization’s client base compared to other businesses offering similar services within the same location.
2. Customer Retention
Customer retention is what an organization does to make its customers stay[70]. Successful customer retention starts with the first contact at the front desk. At the point of interacting with the staff, a customer is able to evaluate the reliability, tangibility, responsiveness, assurance and empathy of the staff in the organization, based on the services offered. If their expectations are met and they feel satisfied, there is a high likelihood of minimum churn of clients from the business.
3. Internal link between a company and its customers.
The front office is the first point of contact that links the customer with the back office. It maintains a flow of information, which helps in creating order in the organization for smooth administrative management of activities. The receptionist therefore plays a vital role as a communication channel between customers and the management of an organization, and this includes relaying of feedback.
4. Source of revenue in an organization
A proper front office which envisages retention of customers, satisfying their needs and ensuring flow of communication, results to the growth of the business thus building its capital. Since the front office also manages petty cash, it contributes to the revenue of the business distributing cash where needed thus improving the flow of working capital.
2.9 General functions of front office department
The Canadian Bar Association (CBA) has recognized the importance of the client to a law firm. It has come up with a guide; Client Care Handbook: 30 Best Practices: Strategies for Law Firm Management[71] outlining the guidelines and articles dealing with the efficient running of a law practice, offering tips and suggestions for how to improve your firm in four key areas: marketing, client care, office management and financial management.
Customer experience management[72] is the broadest and deepest way of viewing customers and their role in the success of any organization. This is done through Customer relationship management (CRM) and customer service management (CSM).
· Customer relationship management (CRM)
CRM is a system for managing a company's interactions with current and future customers using technology to organize, automate, and synchronize sales, marketing, customer service, and technical support, that is, what you think or know about a customer.
· Customer service management (CSM)
CSM on the other hand, refers to the organization, supervision, running and administration of services offered to a client, purchaser, buyer, user, shopper or patron by the seller or provider of goods and services[73], that is, building relationship with a prospective customer through the services offered.
Other functions of the front office department include:
· Communication between clients and the organization, for example, answering and making phone calls, replying to e-mails on enquiry, receipt and sending of letter
· Processing special requests
· Offering advice to clients on products and services offered
· Receiving customer complaints
· Maintain a professional outlook of an organization
· Filing, photocopying, receiving faxes
· Guides guests around the office and facilitates communication between guests and other departments
· Supports the security department by filtering the people walking in and accessing the main office in the organization
2.10 Layout of an organization’s front office
Layout of the front office refers to the general appearance of the front office area in terms of furniture placement and design, including colour theme, space and lighting. The layout adopted by a business depends on whether the office is traditional or modern. The key strategic choice[74] is whether to opt for corporate standardisation or a customised model. External models adopted in an organization may fall in either of the following:
a) The business activity model, where centres are organised by type of business activity and dispersed geographically, allowing economies of scale to be exploited for the performance of that business activity.
b) The end-to-end model where parallel centres exist organised by product or customer, processing the same scope of work as one another.
c) The virtual model where work (telephony or scanned correspondence) is distributed to, and processed by a number of geographically dispersed locations (potentially large or small), which are managed as a single virtual operation.
d) The hub and spoke model where work flows between a central hub that is performing a number of specialised functions, and remote dispersed locations, typically processing face-to-face and telephony work.
Examples of internal front office layouts are, counter front office and the control room. In counter front office, the customers are served on a counter like desk one after the other depending on their needs. There may be a barrier such as a glass between the recipient and the staff. Control room, on the other hand, is the layout where the clients are served in a large open room with various organization officials who are identified by their uniforms or badges. Offices that handles a large number of customers require a spacious front office with ample chairs for the customers to sit as they wait to be served or directed to specific departments.
Some offices such as banks, law firms and insurance companies offer tea/coffee making machine or water dispensers at the reception for their clients. The colour branding of the front office should be appealing to the visitors and the front desk should have the business logo and branding that is eye catching. The design should enhance workers output and also give a pleasant outlook.
Businesses consider whether they should deliver in-house front office services or outsource. Outsourcing is an allocation of specific business processes to a specialist external service provider where an organization cannot handle all aspects of a business process internally. The choices in out-sourcing include full outsourcing, seasonal outsourcing and functional outsourcing e.g. during peak periods[75].
Outsourcing is an effective cost-saving strategy when used properly. It is sometimes more affordable to purchase a good from companies with comparative advantages than it is to produce the good internally[76].
Advantages of outsourcing include:
· It gives the organization more time to strengthen their core business process
· Risk-sharing: one of the most crucial factors determining the outcome of a campaign is risk-analysis. Outsourcing certain components of your business process helps the organization to shift certain responsibilities to the outsourced vendor. Since the outsourced vendor is a specialist, they plan your risk-mitigating factors better.
· Reduced Operational and Recruitment costs: Outsourcing eludes the need to hire individuals in-house staff; hence recruitment and operational costs can be minimized to a great extent. This is one of the prime advantages of offshore outsourcing
The disadvantages of outsourcing are:
- Risk of exposing confidential data: When an organization outsources human resource, Payroll and Recruitment services, it involves a risk of exposing confidential company information to a third-parties.
- Synchronizing the deliverables: In case you do not choose a right partner for outsourcing, some of the common problem areas include stretched delivery time frames, sub-standard quality output and inappropriate categorization of responsibilities. At times it is easier to regulate these factors inside an organization rather than with an outsourced partner
- Hidden costs: Although outsourcing most of the time is cost-effective sometimes, the hidden costs involved in signing a contract across international boundaries may pose a serious threat.
- Lack of customer focus: An outsourced vendor may be catering to the expertise-needs of multiple organizations at a time. In such situations vendors may lack complete focus on your organization’s tasks.
2.11
2.12 The legal framework governing front office services
2.13 Licensing
Licencing gives businesses permit to carry out their activities and also helps the government in regulation of businesses and tax collection. The licences are placed in a conspicuous place at the business premises, normally at the front desk, so that the business is identified by customers, authorities and members of the public to legally carry out their activities[77].
Operating without a licence is an offence that attracts a penalty of imprisonment or a fine. It is also a false representation under the Consumer Protection Act[78] and a false trade description under Trade Description Act[79].
The Advocates Act[80] provides that it is an offence for an unqualified person to wilfully use any name, title or description implying that he is qualified or recognized by law to act as an advocate. In order to run a law firm in Kenya the following licenses are required:
· A valid practicing certificate by each practicing advocate in the firm
· Certificate of the registration of business names
· Business permit issued by the relevant local authority according to the Licensing Laws (Repeals and Amendments) Act , 2006 that amended the Local Government Act (Cap. 265)
Safety Standards
Safety refers to the condition of being protected from danger or risk likely to cause injury. It involves control of recognized hazards to achieve an acceptable level of risk. The Constitution provides that everyone has the right to a clean and healthy environment[81]. Employers or self-employed persons are supposed to ensure that their premises are safe for employees and visitors[82]. This includes entry and exist points from the premises. Safety measures to be taken by an organization to protect its clients include: installing security surveillance systems and metal detectors at the entrance, notice of slippery floors, indicating emergency exit points, fire assembly points, installing alarm systems and first aid kits.
Right to information
The Constitution gives every consumer the right to information necessary for them to gain full benefit from goods and services[83]. The information given should be clear and correct to avoid misrepresentation[84].The Universal Declaration of Human Rights[85] as well as of the International Convention for Civil and Political Rights recognize the right to seek and receive information[86] as a fundamental human right[87]. It is the obligation of the front office staff to offer to the client full disclosure of all material facts relating to the goods and services offered whether or not it may affects the customer’s judgment in making a decision. This is especially important where the customer relies on the staff’s skill and judgment and the goods are of a description which it is in the course of the firm’s business to supply[88].
Right to Privacy
Information that is received by an advocate and his employees concerning a client should be held with confidentiality. Everyone has the right to privacy which includes their private affairs not being unnecessarily revealed[89]. Data concerning client details, including those filled in record books at the reception should not be disclosed unnecessarily. The upshot of professional privilege is absolute at common law. An advocate will not disclose communication made to them by their client and they should not disclose documents provided by clients or legal advice given to the client[90]. Communication made in furtherance of illegal acts is an exception. If an advocate observes a fact which shows that a crime has occurred, since the commencement of the advocate/client relationship they can disclose that information. The exception delimits the purview of client relationship. if the client expressly consents to disclosure then the advocate can disclose[91].
Freedom from discrimination
No person coming into an organization is supposed to be discriminated against on the basis of race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth[92]. The cab rank rule originated from common law. The principle requires that an advocate who supplies advocacy services must not withhold those services on the grounds that the nature of a case is objectionable to him or members of the public or on the ground that the conduct, opinion or beliefs of the prospective client are unacceptable to him or to any section of the public. Though not specifically stated in any written law, this principle applies in Kenya through the provision of Section 3 of the Judicature Act that recognizes common law as applicable in Kenya. It reinforces Article 50 (2) (g) of the Constitution which states that every accused person has a right to choose, and be represented by an advocate.
Advertisement
Advertising refers to presenting or praising goods and services to the public to encourage sales[93]. Some businesses advertise themselves by displaying their vision, mission and core values in the reception area. They also keep brochures and or even wall posters describing the goods they produce or supply, or the services they provide[94]. The front office is used to market the business by displaying products, posters about the firm, awards and notices of the activities that the firm has engaged in or are scheduled to participate through corporate social responsibility.
According to the Advocates (Marketing and Advertising) Rule 2014, Advocates are not supposed to use unfair means to attract professional business[95]. The advertisements done should be objective, dignified, and respectful and should not degrade another advocate or the profession[96]. Departure from these rules attracts disciplinary action.
In Okeyo Omwanza George & another v AG & 2 others[97] Justice Majanja declared Rule 2 of the Advocates (Practice) Rules that prohibited advocates from any form of advertising, unconstitutional because it was inconsistent with Article 46 and 48 of the Constitution as the provision denied consumers of legal services access to information which could help them choose their favourite advocates resulting into an impediment to access to justice.
2.14 Misrepresentation and Vicarious Liability of an Organization for the Conduct of its employees
A front office attendant has general knowledge of the organization’s department and their activities but may not have special knowledge about a product or service as to advise a client on the same.
A misrepresentation is a pre-contract statement that is false or misleading and is given to a recipient whose reliance on it causes damage. Statements may be made in form of advertisements in catalogues, brochures, price list, etc. which are meant to supply certain information. If a client relies on this information as to cause them damage, the firm may be vicariously liable for the conduct of such an employee. This depends on whether the firm is registered as a limited liability. If it is not then the managers will be held liable. Vicarious liability is legal liability that is imposed upon one person for torts (and in some circumstances crimes) committed by another[98]. It most commonly based upon the employment relationship, making the employer liable for the acts of the employee that are done in the course of employment[99].
One of the principles of professional undertaking is that an advocate is responsible for honoring an undertaking taken by a member of his staff whether admitted to the Roll or not[100].
Negligence may also be a ground to hold an employee or the firm he works for damage caused in delivery of services or sale of a good. In Donoghue v Stevenson[101] the House of Lords held that a manufacturer is liable for defective product to the ultimate consumer even if there is no contractual relationship between them. In that case a consumer has been defined as a person who is in contemplation of the supplier by directing his mind to the acts or omissions in question. A customers who steps into an organization is therefore protected by this common law principle with regard to the products received by him/her even from the front office staff.
A client can also fall to the law of tort in instances where he is dissatisfied with the quality of services he obtains from a professional person such as a doctor or a lawyer. In certain cases the law of tort can also provide remedies for negligent misstatement[102].
2.15 Emerging issues in offering front office services
Ten years ago, communication with the front office was limited to phone, email, fax and surface mail. Today, organizations can interact with customers through a myriad of channels, including social media, web self-service and increasingly mobile devices.
Research shows that consumers prefer phone and internet interactions rather than physically coming into an office to make inquiries. Interestingly, web self-service is nearly as popular as surface mail, as its being used in front office strategy. It seems to be growing in popularity as surface mail declines. Technological developments such as filing in forms online to be served by an organization’s staff and going through Frequently Asked Questions (FAQs) show how much progress made by offices in advancing their way of serving clients.
2.16 Key Challenges in offering Front Office Services
a) Difficulty in understanding, targeting and servicing clients. This is because front office staff usually have a limited ability to derive true client insight and understand client needs on the basis of existing management information.
b) There is often no clear link between revenue targets and client planning thus opportunities to customize the service proposition by client are missed.
c) Poor usability, performance and integration of CRM with desktop applications such as Outlook and Excel, with other internal systems, and external data providers.
d) Duplicity in the services offered at the front office and at the back office makes the business expensive.
LESSON THREE
Standards, Policies & Procedures
3.1 1.1 DEFINITION OF TERMS
3.1.1 1.1.1 Standards
A standard is a written limit or rule that is approved and monitored by an agency as the minimum benchmark acceptable, or Technical specifications contained in a document that lay down levels of quality, performance, safety, or dimensions of a product.[103] The Black’s Law Dictionary defines a standard as, Stability, general recognition, and conformity to established practice. A type, model, or combination of elements accepted as correct or perfect.
Neither the Constitution of Kenya 2010, nor the Interpretations and General Provisions Act Chapter 2 Laws of Kenya, provide a definition for the word Standard. Our statutes define standard in relation to the purpose of the specific statute, for instance, the Standards Act Chapter 496 Laws of Kenya define “Standardization Mark” as a mark prescribed by the National Standards council under section 10 of the said Act. The weights and Measures Act[104] define working standards of weights and measures in relation to inspection of the weights and measures equipment.
A Standard is therefore a general written limit, definition, or rule approved and monitored by the authority as a minimum benchmark acceptable.
In an organization a standard is a document approved by a recognized authority that provide, for common and repeated use, rules, guidelines or characteristics for products and services, whose compliance is mandatory.
The important aspects of a standard are its elaboration by consensus, formality and its subsequent consistent practical use.[105]
Standards are documentary, however, there are instances of unwritten standards, for instance the UK Constitution although regarded as a standard; it is derived from common law, case law, historical documents, Acts of Parliament, and European legislation. It is not set out clearly in any one document. Therefore, some Standards though not codified, exist in the hearts, minds and habits of people as much as they exist in law.
3.1.2 1.1.2 Policies
A ‘policy’ is a documented general approach taken within the practice to the issue in question. A policy defines a particular approach in practice. All Policies must have a named person who is responsible for the policy.[106] The Black’s Law dictionary defines Policies as the general principles that guide the government.
It further gives an example as Public policy: the community’s common sense and common conscience extended and applied throughout the state to matters of public morals, public health, public safety, public welfare; it is that general and well-settled public opinion. A Policy is therefore the comprehensive and contemporary programme that aims at measuring an organization’s ability to provide efficient administrative support within the organization.
3.1.3 1.1.3 Procedures
J McConnell defines procedures as methods for accomplishing or implementing a Policy[107]. It is the systematic elaboration to ensure successful implementation of a Policy. Procedure describe specific elements and actions for instance, how to implement a Policy in order to achieve a prescribed Standard. Also include identification of persons authorised to implement the elements of the procedure.
3.2 1.2 LEGAL FRAMEWORK ON STANDARDS, POLICIES AND PROCEDURES
3.2.1 1.2.1 Constitution of Kenya 2010
Article 2 of the Constitution of Kenya 2010 embodies the supremacy of the constitution. The Constitution binds everyone; any state authority or power conforms to the Constitution. Its validity or legality is unchallengeable and all Laws in Kenya must conform to it.
Therefore, it is the ultimate legal framework for Standards, Policies, and Procedures. Any Standard, Policy, or Procedure that does not conform to the constitution is void.
In the case of Paul K. Semogerere & 2 others – v- The Attorney General, Constitutional Appeal No. 1 of 2002[108] it was opined that:
“It is the Constitution, not Parliament nor the executive nor judiciary which is supreme.”[109]
The Constitution lays the background upon which all other Legislations (Standards, Policies, and Procedures) follow. Chapter eight of the Constitution establishes the Parliament, which is the legislature mandated to make Laws. Article 94(3) provides for the framework for delegated legislation, providing that any legislation conferring delegated legislative powers on any person(s) shall specify its objectives, limits of authority, nature and scope, principles and standards.
Article 43, provides the benchmark for the Standards and Policies formulation for realization of Economic and Social rights.
Article 191, harmonizes (Standardization / uniformity) the National and County legislations to avoid conflict of Laws and policies formulated by the two respective levels of government.
Similarly, article 232(1) gives a benchmark of the values and principles guiding the Public service in policy formulation processes. It also prescribes the highest standard for professional service. Likewise, article 244; prescribe the highest standards of professionalism and competence for the National Police.
The Constitution provides the general framework and guidelines for Standards, formulation of policies and procedures. However, the details and specifications of Standards, Policies, and Procedures are in specific legislations.
Article 27 provides for equality and freedom from discrimination; Article 28 addresses human dignity; Article 30 prohibits slavery and forced labour; Article 232 of the constitution provides for the participation of the people of the republic of Kenya in Policy formulation. The foregoing provisions should therefore guide the Standards, Policies, and Procedures of organisations to assure citizens of highest standards of life prescribed by the Constitution.
It is also important to note that where there is a conflict between Policies and the Law, the Law supersedes and the Constitution supersedes all Laws.
3.2.2 The Standards Act, chapter 496 Laws of Kenya
Sections 9, (2) of the Standards Act provide as follows:
Where a Kenyan Standard created under subsection (1), the Minister, on the advice of the Council shall, gazette a date after which no person shall manufacture or sell any commodity, method or procedure to which the relevant specification or code of practice relates unless it complies with that specification or code of practice.
The Verification of Conformity to Kenya Standards of Imports Order, 2005 (The 2005 Order), pronounced that a person who imports goods must ensure that the goods meet Kenya Standards of approved specifications but also allowed the Minister to exempt any imports in the National interest.
3.2.3 Legal Education Act
Under Regulation 11 of Council of Legal Education (Accreditation of Legal Education Institutions) Regulations, the Standards governing the operation of Legal education institutions accredited by the Council were set out in the Third Schedule to the Regulations under the title “Physical, Library and curriculum standards for legal education institutions.” In the case of Eunice Cecilia Mwikali Maema v Council of Legal Education & 2 others [2013] eKLR; The appellate judges were of the view that the learned judge correctly applied the principle in the decision in Susan Mungai V The Council for Legal Education. Petition No.152/2011 to the effect that the Council has the power to set Standards to ensure that the highest professional standards in the profession and it is not for the Court to be concerned with the efficaciousness of the decision made pursuant to the Regulations.
3.2.4 Employment Act 2007
An employer shall pay his employees equal remuneration for work of equal value and if he contravenes the provisions of this section, he commits an offence.
Sections 6 of the Employment Act prohibit sexual harassment. The same should therefore expressly feature in a model Standards, Policies and Procedures’ manual of an organisation.
Section 6 (2) provides that an employer who employs twenty or more employees shall, after consulting with the employees or their representatives if any, issue a Policy statement on sexual harassment. An employer shall bring to the attention of each person under the employer’s direction the Policy statement required under subsection (2).
Section 15 states that employer shall display a statement in the prescribed form of the employee’s rights under this Act in a conspicuous place, which is accessible to all the employees.
Section 25 also offers a platform where an employee can file their complaint. The aggrieved employee can file their complaint to the labour officer within three years after the alleged wrong deduction was committed. A company’s policy manual should prescribe procedures towards the realization of the same.
Section 27 provides that an employer shall regulate the working hours of each employee in accordance with the provisions of this Act and any other written law. Section 27 (2) entitles an employee to at least one rest day in every period of seven days. Section 28 entitles employees to an annual leave of 21 days with pay; Section 29 entitles a female employee to three months maternity leave with full pay while Section 30 entitles an employee to a sick leave.
Section 45 provides that no employer shall terminate the employment of an employee unfairly.
3.2.5 Work Injuries Benefit Act
Section 7 of the acts states that every employer should obtain and maintain an insurance policy, with an insurer approved by the Minister in respect of any liability that the employer might incur under this Act to any of his employees.
Section 10 states 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 the Act. Policy therefore prescribes remedies and procedures for employee's injuries on duty.
3.2.6 Labour Institutions Act 2007
Section 43 creates a general wages council. One of the functions of the wages council is to make recommendations to the Minister on minimum wage remuneration and conditions of employment.[110]
Section 47 sets the conditions for minimum wages and other conditions of work.
3.2.7 HIV/AIDS Prevention and Control Act 14 of 2006
Section 31 deals with discrimination in the workplace. In section 31(1) no discriminating and employee's employment or promotion or transfer, on the ground only of his actual, perceived, or suspected HIV status. A policy statement addressing the issue of HIV/AIDS in a company is crucial and procedures of implementation prescribed and further procedures instances where the policy is not observed or is circumvented.
3.2.8 The Water Act, 2002
The Water Act, 2002 provides for the maintenance of quality of the water and regulation of tariffs. In essence, the intent of the Water Act, 2002 is to provide quality water at reasonable cost to consumers.
3.2.9 The Basic Education Act No. 14 of 2013
Section 95(1a) of the Act gives the Cabinet Secretary the power to make regulations for enhancing quality and standards of Basic education in Kenya. All regulations are therefore pursuant to the Act and will have the force of Law as long as they do not conflict with the Constitution and the Basic Education Act. It provides free Compulsory Primary education amongst other things.
3.2.10 The Consumer Protection Act No. 46 of 2012
Section 3(4) of the Act provides for its objectives which are to promote and advance the social and economic welfare of consumers in Kenya by inter alia protecting consumers from all forms and means of unconscionable, unfair, unreasonable, unjust or otherwise improper trade practices including deceptive, misleading, unfair or fraudulent conduct. Further it creates the Advisory committee tasked with monitoring and reporting each year to the Cabinet Secretary on the availability of goods and services including price and market conditions, annual state of consumer protection report, conduct and trends affecting consumer rights and any other matter relating to the supply of goods and services.
The Energy Act Chapter 314 Laws of Kenya
Creates the Energy Regulatory Commission under section 4 of the Act mandated to carry out duties enumerated in section 6 of the Act, which include inter alia formulate, enforce and review environmental, health, safety and quality standards for the energy sector, in coordination with other statutory authorities.
3.2.11 Ethics & Anti Corruption Act Chapter 65A Laws of Kenya
The Act creates and mandates the Ethics and Anti Corruption commission to carry out duties enshrined in Article 252 of the Constitution and ensuring compliance to Chapter 6 of the Constitution relating to standards of Integrity and financial accountability among Public officers.
3.2.12
3.2.13
3.2.14
3.2.15
3.2.16 1.2.12 Human Resource Management Professionals Act 2012
The Act establishes the Human Resource institute whose functions are inter alia establish, monitor, and publish the standards of professional competence and practice amongst human resource professionals. The Act is still yet to be supported through regulations to provide more substantive regulations and standards in the Human Resource sector as compared to the accounting, legal, medical and engineering sectors which have comprehensive regulatory frameworks prescribing comprehensive standards and policies.
From the above legislative provisions, we conclude that Legal provisions guide the framing of standards, Policies, and procedures. A case in point is that before standards in the form of the Alcoholic drinks control Act stepped in, depending on cash flow, one could buy brand name alcohol or illicit brews so potent that they caused loss of sight and in extreme cases death. At this rate, standards, policy guidelines, and procedures in the methods of production were running behind schedule.
It therefore goes without saying that the Law need to be continuously revised to keep pace with new challenges posed by increased consumption of goods and services, fast-paced change, globalisation, increasingly more complex, diverse situations and fiscal considerations, to ensure continuing excellence in achieving set objectives by guiding the formulation of standards, policies and procedures.
3.3 2.1 STANDARDS
3.3.1 CLASSIFICATION OF STANDARDS
In classification, Standards may be international, National or personal. National standards are The Constitution, Statutes, and Delegated legislations. International standards are ratified Treaties and conventions.
In the private sector, standards are corporate. Top executives make the standards then the shareholders ratify. In the public sector, National Assembly, the Senate, County Assemblies and Local authorities make standards.
3.3.2 STANDARDS IN KENYA: A GENERAL OUTLOOK
In Kenya, Standards regulate virtually all spheres of life. Standards regulate Commodities, services, and human conduct.
More so, organisations and companies must comply with standards prescribed by Laws at all levels. The legislations discussed above provide for these standards. Manufacturers have to comply to Kenya Bureau of Standards prescribed standards, Nongovernmental organisations have to comply with National NGO Coordination Board’s standards regarding registration and operations. Professional firms have to conform to standards prescribed by laws and monitored by their respective professional associations. Individual conduct and behaviour has to conform to the criminal and civil laws. Ultimately, everything has to conform to the Constitution: the Supreme standard / norm.
The constitution 2010; Article 43(1) provides for the right to highest attainable standards of health; adequate housing and reasonable standards of sanitation. The Constitution 2010 has also dedicated an entire chapter to setting standards of conduct for all public servants at Chapter 6 on leadership and integrity. The constitution 2010 article 94 gives Parliament role to set standards through legislations. Other provisions entrenching standardization are articles 21(2), 34(5), 191(3), 232(1) on values, article 244 on National police and their discipline codes and commitments.
The preamble to The Standards Act reveals the objective of The Act to be-
“An act of Parliament to promote the standardization of the specification of commodities, and to provide for the standardization of commodities and codes of practice; to establish a Kenya Bureau of Standards, to define its functions and provide for its management and control; and for matters incidental to, and connected with, the foregoing.”
The government also enacted the Alcoholic Drinks Control Act 2010,[111] an Act that was set to dramatically impact how and when Kenyans drink. The Act is aimed at addressing the increase in alcohol outlets in urban residential areas and the increase of injuries and death from consumption unadulterated alcoholic drinks.
The Act prescribes harsh penalties too, for example, those who sell adulterated chang’aa could spend five years in jail or pay a fine of Kshs.5 million[112]. This would force the manufacturers to revise their standards in brewing alcohol. Standards regulate every aspect of Human conduct; however, what is lacking is the implementation. For instance, in the year 2000, KEBS formulated the Kenya Standard Code of Practice for Inspection of Road Vehicles
(KS 1515:2000) in accordance with section 9 (2) of the Standards Act, Cap 496 of the Laws of Kenya to regulate the quality and condition of road vehicles for safety, environmental and economic reasons. Today, accidents are still a cause to worry despite existence of these standards. The National police have standards of the highest professional conduct prescribed to the police; however, the latest survey by Transparency international put the police on top of the corruption rankings.
3.3.3 JUDICIAL ENFORCEMENT OF STANDARDS
The Judiciary has also been practical into upholding and breathing life into standards that would otherwise be abstract without such enforcement mechanism. The following cases serve to demonstrate the courts eagerness to uphold standards:
1. Republic v Kenya Bureau of Standards & 2 others Ex-parte Peter Mbwiri Ikamati [2014] eKLR
In this case, the applicant sought to bring his car together with other personal effects into the country after he had completed his studies abroad. The Port officials impounded the vehicle due to its age, which was beyond the statutory limit of eight years. The applicant relied on the KEBS Kenya Standard Code of Practice of Inspection of Road Vehicles (KS 1515:2000). The applicant’s was wrong on the standard and he sought to invoke constitutional rights to property. The learned judge’s interpretation of the rule resonated with the intent of the Standard: that is to prohibit importation of over-age vehicles into Kenya. Honourable Justice Majanja proceeded to state that standards limit the right to property since it is not absolute. In the circumstances it cannot be said that the applicant’s rights had been violated nor was there a necessity to invoke the Constitution in the circumstances, the applicant’s motion was thus denied.
2. John Kinyua Munyaka& 11 others v County Government of Kiambu& 3 others [2014] eKLR
This case was about people who died of chang’aa poisoning and others admitted in hospital because of chang’aa poisoning. A NACADA analysis in May 2010; indicated that 68% of alcoholic drinks presented for analysis did not meet the set alcoholic drinks standards; there was need to amend the Law.[113]
The learned judge stated in his judgment that: “I am satisfied that the purpose for the limitation, if it is to be so regarded, is noble; it is necessary to protect the rights and fundamental freedoms of others; the extent of the limitation is such that the petitioners can still enjoy their constitutional rights as long as they are conscious of where their rights end and other peoples’ rights begin; and the limitation is proportional to the overarching objective of the Kiambu County Alcoholic Drinks Act, 2013.”
3.3.4 PRESCRIPTION OF STANDARDS
Article 94 0f the Constitution of Kenya, 2010, defines the role of parliament as the legislative authority of the republic, which is derived from the people, at the national level, and is vested and exercised by parliament (National Assembly and the Senate), and drawing by inference, include the setting of standards through legislation.
In Kenya standards are developed by technical committees whose membership include representatives of various interest groups such as Producers, Consumers, Industrialist experts, Research Institutions, and testing organizations, in both the private and public sectors. There are six categories of Standards:
- Glossaries or definitions of terminology,
- Dimensional standards,
- Performance standards,
- Standard methods of test,
- Codes of practice, and
- Measurement standards
Standard organizations that develop standards in Kenya to regulate different aspects of goods and services include but are not limited to the following:
1. The Kenya Bureau of Standards (KEBS) - KEBS is the government regulatory body under Kenya's Ministry of Trade mandated to maintain standards and practices develop and ensure compliance with the International Standards Organization (ISO) product standards. It is the statutory body empowered to promulgate and publish Standards.
2. The National Environment Management Authority (NEMA) - The National Environment Management Authority, under the Ministry of Environment and Natural Resources, the Department of Public Health, and the Ministry of Health are all government organizations that develop environmental and public health standards in partnership with KEBS.
3. The Division of Environmental Health
4. As regards Civil Aviation industry in Kenya, vide the amendments to the Act[114] 2002, the Legislature mandated the KCAA (Kenya Civil Aviation Authority) to deal with safety and technical regulations including enforcement of approved technical standards of aircrafts in a manner consistent with the Chicago Convention relating to international Standards and recommended practices. KCAA (Kenya Civil Aviation Authority) enforce all aspects of aircraft safety standards.
5. Other bodies such as Council of Legal Education, Federation of Kenya Employers, Ngo Coordination Board, Central Organization of Trade Unions, Athletics Kenya, Kenya Football Federation, Media Owners Association, Editor’s Guild, LSK, ICPAK etc. these organisation engage Legal Professionals to interpret the Laws that affect their members and help to come up with standards regulating their members to avoid breaching legal provisions and maintaining good professional conducts and ethics in their respective fields.
3.4 POLICIES AND PROCEDURES
A policy outlines what an organisation, a company, or even a nation hopes to achieve and the methods and principles it will use to achieve them. A policy document is not a law but it will often lead to creation of a Law.
The legislative process in Kenya starts out as policy process. For instance, the Bills presented in Parliament are position papers which are prepared to address an issue, the sponsor of the Bill consults stakeholders in the relevant field: a problem identified is to be addressed, experts are engaged to research on the issue, the paper developed is adopted by either opposition or government side of the house thereafter, it is popularised and presented as a motion and then goes through the three readings in Parliament and if passed, it is presented for presidential assent and gazetted to become Law.
Policy therefore sets out the goals and planned activities of a ministry, department, or an organisation but it may be necessary to pass a law to enable government to put in place the necessary institutional and legal frameworks to achieve their aims. Policies guide the Laws.[115] Thereafter, procedures provide for implementation of the policy or Law.
3.4.1 Objective and role of policy
Policy’s objective is to regulate and guide operations.[116]
They provide general guidance towards the organization’s missions and provide specific guidance on implementing the strategies. They also provide a control mechanism of the organization’s behaviour, of all persons, concerning any area of activity in which the organization has jurisdiction in. They also define roles and rules; explain consequences of actions and behaviour.[117]
3.4.2 POLICY FORMULATION: GENERAL GUIDELINES
There are two dimensions in formulating policies[118]. These dimensions include the vertical and horizontal. The vertical dimension sees policy as rule[119]. It is concerned with the transmission downwards of authorized decisions. The authorized decision makers select courses of action, which will maximize the values they hold, and transmit these to subordinate officials to implement. It may be that the subordinate officials push the courses of action up for endorsement, but the decision-makers still have to give their authority. This dimension stresses instrumental action, rational choice and the force of legitimate authority.[120]
The horizontal dimension sees policy in terms of the structuring of action. It is concerned with relationships among policy participants in different organizations- that is, outside of the line of hierarchical authority. It recognizes that policy work takes place across organizational boundaries as well as within them, and consists in the structure of understandings and commitments among participants in different organizations as well as the hierarchical transmission of authorized decisions within any one organization.[121]
3.4.3 STEPS IN POLICY FORMULATION
Research and consultation is imperative when developing a policy. This will increase the knowledge on the constrains that have been put in place and also will give time to look at the problem one is trying to cure, in order to draft a comprehensive policy that will also be quick to adopt and easy to implement. There are steps that one ought to follow in order to make a good policy:
1) Identify and define the problem: many conditions create disturbance and distresses to people. An organization needs to know the problem that is there that necessitates a policy. This will lead to the understanding of the purpose of the policy.
2) Setting and building the Agenda through a priority list of the problems an organization is seeking to rectify.
3) Formulating the policy by researching on what other organizations have done. It involves a lot of consultation of stakeholders as well.
4) Presenting and adopting the policy by the Management.
5) Communicating and popularising the policy for people's understanding.
6) Implementing (action stage): many policies are carried out by administration agencies; it is therefore important that the policy is carried out and punish the non-compliance
7) Monitoring, Evaluating, Reporting, and learning from the outcomes of Implementation of the policy.
A good policy Document should include the following:
a) Policy name
b) Effective date of the policy and date of any revisions
c) Purpose of the policy that is to say what it is intended to promote or achieve.
d) Main policy statement
e) Definitions of any key concepts or terms used in the policy
f) Scope of permissible exceptions and who is responsible for making exceptions to the general application of the policy
g) Positions in the organization responsible for implementing and monitoring the policy.
3.4.4 CONSTRAINS IN POLICY IMPLEMENTATION
Implementation of policy in an organization is faced with various constrains. These include; constrains from the parent organization, the umbrella organizations, regulatory bodies, government policies, and legislation. This will ensure regular policies and consistent ones. For instance in the case of Brown[122], where there was a policy that allowed two separate schools; one for whites and the other for blacks, it was held the policy was unconstitutional. The constitution was providing for basic education for all.
There are basic critical factors that are very crucial to implementing public policy. These critical factors are communication, resources, dispositions or attitudes, and bureaucratic structure.[123] The four factors operate as discussed hereunder:
There are factors that hinder effective implementation of policies, these are:
Lack of public awareness about the policy among the people it concerns. The people may misunderstand a policy and resist it in ignorance or there may be lack of information about the policy with no clear procedure for the policy implementation.
Bureaucratic structure, lack of efficient structure especially where there is organizational fragmentation it may hinder the coordination.[124]
General perceptions and attitudes of people also affect policy implementation, this may lead to use of many resources to overcome people’s perceptions or culture.[125]
3.5 3.2 PROCEDURES
3.5.1 AN OVERVIEW
This is what determines the success of a policy. Procedures implement all aspects of the policy by detailing systematic action plan, creating awareness, and ensuring conformity.
Procedures in human resource management for example, are mainly required in the area of Handling grievances, Promotional issues, Disciplinary areas, Capability (performance) issues and Redundancy issues.
3.5.2 3.2.2 ATTRIBUTES OF GOOD PROCEDURES
They are simple, clear and accurate, consistent with the objectives and policies of the organisation. They are documents for reference. Periodical reviewing to ensure they conform to the challenges of the external environment. They must be consistent with public policy and the legal statutes, and the top management must approve them.
3.5.3 3.2.3 STEPS IN DEVELOPING PROCEDURES
1) Identify the organization's need for the procedure.
2) Seek support and approval from the top management giving reasons to justify the procedure. .
3) Define the scope- establish the precise scope to be covered by the procedure to avoid deviation from the objectives of the policy.
4) Collecting & documenting current information to form a good base for comparison.
5) Prepare a draft procedure.
6) Obtain comments on draft procedure.
7) Obtain authorization for use of procedure.
8) Publicise and circulate the procedure.
9) Periodically review the procedure to ensure it effectively implements the policy by ensuring a feedback mechanism and documenting lessons, success, and failures.
3.6 CRIMINAL PROCEDURE: POLICE IDENTIFICATION PARADES
3.6.1 The standard, policy and procedure
Two legislations provide for the Kenyan policy on identification parades. The first is the Forces Standing Orders of the National police Service Act. This outlines the fact that the police have the right to institute pre-trial investigation including conducting of an identification parade if necessary. The second piece of legislation on the same is the Evidence Act, and the constitution on fair administration of justice. Psychologists and researchers in the United States had determined that the identification parade had been leading to significant wrongful convictions, the U.S attorney General therefore constituted the National Institute of Justice. The creation of standards was therefore a measure used to ensure that the procedure applicable would work hand in hand with the policy to ensure fair administration of justice[126]. The same standards are now applicable around the world[127] with the United States identification parade standards as the model. The table annexed as Annexure 1 outlines the identification parade procedure as informed by form 156 of The Police Service Standing Orders 1974. The table highlights on whether the steps taken in conducting identification parades are standards, policy, or procedural in nature.
3.7 STANDARDS, POLICIES & PROCEDURES IN THE LEGAL PROFESSION
3.7.1 Keeping of Accounts
Practicing Advocates are guided by a set of rules (policies) created pursuant to the Advocates Act Chapter 16 Laws of Kenya and the Law Society of Kenya Act Chapter 18 Laws of Kenya. Individual Law firms have also developed their internal policies that reflect the Law firm’s commitment to the regulations made by Law Society of Kenya and the Judiciary.
Advocates (Accounts) rules[128]
Rule 3 provides that an advocate may keep one client account or several as he deems fit. He should also keep separate accounts for each client.[129] Rule 4 states that the money shall be deposited in the clients account without any delay. Where money that does not belong to a client has been deposited into a client’s account, it should be paid out as soon as possible. The rules provide that the advocate cannot withdraw any money from the account unless with the consent of the client. Where he withdraws, it will amount into theft by agent as was discussed in the case of John Kinyanjui.[130] The books of records shall be kept to show all dealings of the account and preserve the records up to at least six years.
In Re Clayter,[131] the Supreme Court of Illinois stated that the case was an opportunity to admonish the lawyers of the importance of properly safeguarding trust fund. It is impossible to commingle the money held for clients or in fiduciary with own funds.
3.7.2 Standard
The standard of accounts with respect to client’s money is that there should be two separate accounts. One is for the advocate’s personal money and the other for their client’s money.[132] Every advocate shall at all times keep, properly written up, such books of account.[133]
3.7.3 Policy
The policy is to provide transparency and accountability, which ensures that there is no embezzlement. Every end of a financial year, the accounts is tendered for auditing before an advocate can renew a license.[134]
3.7.4 Procedure
Complaints about an Advocate's conduct are lodged to the disciplinary
committee.[135] The complaint is made by affidavit by the complainant setting
out the allegations of professional misconduct. If an advocate is found to be
guilty of the offence, he may be punished in the following ways:
1.Advocate may be admonished.
2. Advocate may be suspended from practice for a specified period not exceeding
5 years.
3. Name of the advocate may be struck off the Roll of Advocates
4. A fine not exceeding one million shillings or a combination of the above
orders as the committee deems fit.
5. An advocate pays to the aggrieved person compensation or reimbursement not
exceeding Five million shillings
LESSON FOUR
INFORMATION COMMUNICATION TECHNOLOGY
INTRODUCTION
Information Communication Technology (ICT) is an umbrella term that includes all technologies for the manipulation and communication of information.[136]The world has become a global village. This has called for need to embrace ICT in the office to handle the need to deal with increased level of communication as well as making operations easier.
Information is indispensable for the effective practice of law. Though the work of legal practitioners involves a high level of documentation and information processing, storage, and retrieval, ICT is a new phenomenon in the lawyer’s life. To be able to comprehend the centrality of ICT in a lawyer’s life today, it is important to understand ICT.
4.1 ICT DEFINED:
The acronym Information and Communication Technology (ICT) includes all technical means that are used for handling information and facilitating communication, including computers, network hardware, communication lines and all the necessary software. ICT is comprised of information technology, telephony, electronic media, and all types of process and transfer of audio and video signals, and all control and managing functions based on network technologies[137]. It includes the field of Computer and Information Science and a huge and rapidly growing knowledge base that is being developed by practitioners and researchers.
1. THE LEGAL AND INSTITUTIONAL FRAMEWORK REGULATING ICT IN KENYA
Kenya has an extensive legal framework governing ICT. It has enacted statutes and policies to bring the country in sync with the ICT realities of our day. These will be discussed below:
Ø The Constitution of Kenya, 2010
Article 11, 34, 35 and 46 of the Constitution of Kenya, 2010 make provisions with a direct impact on ICT. Article 11 (c) requires the state to recognise the role of science in the development of the nation. Article 34 provides for the freedom of electronic, print and all other types of media. Under Article 35, the Constitution guarantees the rights of all citizens to access information. On the other hand, Article 46 safeguards the right of consumers to information necessary for them to gain full benefits from goods and services and to fair, honest and decent advertising.
Ø Kenya Communications Act (KCA) of 2013.
The Kenya Communications Act was enacted in 2009 but has now been repealed by the Kenya Communications Act 2013. It is an amendment to the Communications Act of 1998 which mainly addressed traditional broadcast media instead of issues that emerged in ICT. The major impact of the amendment was that it strengthened the role of the CCK within the ICT sector.[138]
Other than providing for broadcasting and media, the Kenya Communications Act deals also with Information Technology, Telecommunications and radio, postal services, academia and socio-cultural issues.[139]
Ø Science and Technology Act of 2012
This act repealed the Science and Technology Act of 1977. The mandate of the Science and Technology Act of 2012 is to facilitate the promotion, coordination and regulation of the progress of science, technology and innovation in the country.
It established the National Commission for Science, Technology and Innovation[140], Kenya National Research Fund[141], Kenya National Innovation Agency[142], National Innovation Agency and the National Research Fund. It also creates a Research, Technology and Innovation MTEF Budgetary Sector created in 2008/09F.
Ø Kenya Broadcasting Corporation (KBC) Act OF 2009
This act was an amendment to the Kenya Communications Act of 1998. It established the Kenya Broadcasting Corporation (KBC) that assumes the Government functions of producing and broadcasting programs. The Corporation has several duties which include providing independent and impartial broadcasting service of information, education and entertainment. It also advises the Government on all matters relating to the broadcasting services and to matters pertaining to the Corporation generally.[143]
Ø Revision of Laws Act[144]
This Act of Parliament to make provision for the contents of, and for revisions of, the Laws of Kenya. It is under this Act the Kenya Law Reports are maintained by National Council for Law Reporting. The Kenya Law Reports maintains a website which has a comprehensive database of the Laws of Kenya, Case Laws and the Daily Cause lists of all the courts in Kenya. The website won the digital content excellence awards in 2014.
Ø National ICT policy
After several years of effort,[145] Kenya promulgated a National ICT Policy in January 2006. It aims to “improve the livelihoods of Kenyans by ensuring the availability of accessible, efficient, reliable and affordable ICT services.”[146]However, universal implementation is challenging given the lack of resources, national ICT infrastructure, and even electrical supply – particularly in the rural areas.[147]Due to several changes that have taken place through the years since the policy was implemented, it is currently under review.[148]
4.2 INSTITUTIONS RELATED TO ICT
There are various institutions which influence the Kenyan ICT policy formulation and implementation. They include;
· The Ministry of Information and Communication (MoIC) which is an arm of the government in charge of the national ICT policy formulation;
· National Communications Secretariat (NCS), which advises the Ministry on ICT policy;
· Parliamentary Committee on Energy, Communications and Public Works, which provides Parliamentary oversight on communications matters; and
· The regulator (CCK), which licenses and regulates telecommunications, radio communications, postal services and, as per the most recent Act, broadcasting (the Kenya Communications Act of 1998 transformed the CCK into the converged regulator, meaning that the CCK’s regulatory menu now includes broadcasting services);
· Appeals Tribunal, which arbitrates cases where disputes arise between parties subject to the Information and Communications Act;
· Kenya ICT Board (KICTB), which was created by a Presidential Order in 2007 to promote the development of ICT in the country, especially BPO and IT-enabled services (in practice, its role sometimes overlaps with those of the NCS (see above), especially with respect to advising the government on ICT issues, as well with the Directorate of e-Government (see above) with respect to implementation of e-governance systems. These overlaps need to be addressed);
· Government Information Technology Services (GITS), which is under Treasury, and is a technical entity that provides computer services to government ministries and departments and some parastatalorganisations (in 2005, GITS was transferred to the Directorate of e-Government, but still reports to Treasury and has resisted efforts to be merged into the e-Government Directorate);
· Directorate of e-Government (DEG), which was founded in March 2004 in the Office of the President (OP) to oversee the implementation of e-Government strategy and to assist the Government of Kenya more effectively delivery of services to citizens;
· Monopolies and Prices Commission, the Commissioner of which, in terms of the Monopolies and Prices Commission Act, can make determinations on matters that may affect competition in the economy, including matters that involve companies in the telecommunications business. (The Commission has indeed dealt with some matters in the ICT arena, especially with respect to mergers and acquisitions.)
2. AN ANALYSIS OF THE EFFECT OF ICT IN THE LEGAL PROFESSION IN KENYA.
The move from paper to electronic forms is a vital step in the evolution of modern organizations from the analogue to digital spectrum. ICT is being used to enhance efficiency both in the judicature and in the legal profession, ensuring open access, transparency, and accountability. And though lawyers are generally bad managers, we believe they have successfully adopted the use of ICT.
In analysing what impact ICT has had on the legal profession, we subdivided the actors in the legal profession into various categories mainly for efficient and critical analysis. The major categories in our subdivisions which are discussed below include:
a. The judiciary
b. Advocates
c. Paralegals
d. Law students and Lecturers
4.3 The Judiciary
Information Communication Technology in the Judiciary involves various stake holders Judges, Magistrates, Court clerks and Court stations. This area of the research was handled by undertaking a case study of theMilimaniLaw Courts which was the centre of the ICT pilot project undertaken by the Judiciary committee on information communication technology and a review of literature. We also made observations of the High Courts and Courts of Appeal where ICT projects were implemented and what benefits it promoted.
The Judicial Information Communication Technology Committee, established on 15thOctober 2008, plays an oversight role on all Information Communication and Technology matters in the Judiciary. The committee is guided by The Judiciary Strategic Plan.[149] The Committee has initiated several activities such as: the digitization of court records and the creation of a case management system, development of the ICT policy and strategic plan, establishment of communication infrastructure, acquisition of hardware and software, and tele-presence court sessions.[150]
Achievements of the Judiciary with reference to ICT
The judiciary during the Willy Mutunga reign has made a couple of steps in bringing ICT within the confines of the courts. The most relevant ones with regards to this project are as follows;
1. Installation of the tele-conferencing court system
The first cases were relayed in October, 2010 from Mombasa during the official launch of the ICT Policy and Strategic Plan. The Court of Appeal heard three cases via video conference where the bench sat in Nairobi while the respective lawyers were in Mombasa.[151] It was envisaged that if the pilot tele-justice system in the Court of Appeal was successful, then the system may be employed in criminal cases. The tele-system may then be installed in the Prisons and the Chief Magistrates Courts, so that, where appropriate, cases may be dealt with without remanded accused persons being brought to the court.[152] This would have a positive impact on the image of the Judiciary. Howeverthe implementation of this system in the criminal courts is subject to the appropriate legal infrastructure being put in place. The steps for its firm establishment are long overdue.from the pilot phase in 2010 we are now in 2015 and no further progress has been made.
The Security Law (Amendment) Act[153] Section (30) details the process of having teleconferencing in the administration of justice in Kenyan courts. The Chief Justice will be tasked to set out rules on how the technology will work.[154]
2. Installation of networking facilities
In response to the need for data security and integrity in the court stations, a backup solution has been procured to ensure that all data is centrally saved. All stations are Wide Area Network-ready and waiting to be powered up from the head station at the Milimani High Court, where a Network Operating Centre has been set up.
Uninterruptible Power Supply Systems have been installed to ensure that all ICT equipment is protected from damage arising from power fluctuations, as well as to ensure the continuity of work. Security systems have also been set up for all server rooms with an automatic fire suppression system in case of a fire outbreak.
3. Creation of a data centre and installation of important ICT devices
A data centre is already at the Supreme Court and is awaiting configuration. It will house computer systems and associated components, such as Tele-communications and storage systems. It includes backup power supplies; redundant data Audio visual recording and transcription systems have been installed in 35 courtrooms in Milimani Law Courts, the Court of Appeal at Elgon Place, and the Supreme Court in an attempt to reduce human error in recording proceedings.
4. Leasing of ICT hardware devices and bar coding of purchased devices
The Judiciary has moved to reduce the cost of buying and maintenance of printers by leasing them. All court stations have multi-function printers on lease that will allow for scanning of court documents.
In order to safeguard and track ICT equipment, all new purchases are now being bar-coded. Information will eventually be uploaded into the Configuration Management Database System. In case of theft or loss, the items will then be discoverable online and their status determined at the click of a button.
5. Staff training on ICT
The Staff in the High Court at Mombasa and Eldoret have been trained in readiness for the deployment of the case management system.
The Judiciary Transformation Framework, 2012 –2016 these stations will in turn be interlinked in a Wide Area Networks.
How ICT has affected the Judiciary as an organ of the Government
I. ICT has enabled the Digitization of Court Records
Digitization refers to the Conversion of analogue information in any form especially hardcopy to a digital format with the help of suitable electronic devices such as a scanner to ensure that the information is processed, stored, and transmitted through digital media, equipment, and networks. It also refers to the act of transcribing data or information into a digital form that can be directly accessed and processed through a computer.[155]
The digitization of hardcopy records was the first step taken towards automating court processes.[156]With the assistance of the ICT Board, the Judiciary organized the court records for the last ten years and a total of 325,000 files were prepared for digitization. By October 2010, Digital Scape Company Ltd and DPH India which were the firms awarded the contract to digitize the records had scanned five million pages of the thirty million targeted pages of court records.[157] So far, more than 100 million pages of High Court rulings and 10,000 Court of Appeal records have been converted into electronic format for easy access.[158]
II. Efficient records management within the judiciary: Responsibility for Records Management
There is no central authority responsible for managing records and archives in the Judiciary. Each division develops its own rules and procedures, except with regard to the disposal of records.[159]
With the automation of the judicial processes and documents, ICT will ensure that voluminous electronic records are available on soft copy and virtually stored. Hence there will be no need for manual disposal by destruction or otherwise of such court records. However the process is at an early stage and the focus is on preparing records for digitization, which has been carried out in the 17 High court stations, and scanning of existing hardcopy court documents. The judiciary is currently ensuring that all reported cases are accessible to all persons through the National Council for Law reporting.
III. Efficient management of the courts.
ICT through the integrated case management system is capable of managing diaries of both judicial officers and courtrooms; keeping an online repository of documents and recordings. This benefit is evident in the fact that various Persons in the legal profession are able to access the online cause lists from the National Council for Law reporting (Kenya law) official website.
IV. Automation and diversification of the revenue and deposits
The Judiciary adopted a Case Management System in 2012. The CMS is an interaction system that highlights court events such as mention, hearing, and judgment. Further, it displays the parties to a suit (plaintiff, defendant, applicant, respondent, and petitioner).
The CMS allows direct deposit, credit/ debit cards, online and mobile phone payment methods. This feature is evident form the judiciary's Faini Chap Chap service which enables traffic offenders to pay penalties using M-Pesa,Safaricom’s mobile money transfer platform.However this service was established during pilot phase in Kibera and Milimani courts. It was initially meant to be available for the payment of traffic fines imposed by the Kibera and Milimani courts in Nairobi.[160] The project was piloted for three months but up to date it has not been rolled out to other courts.
V. Effect of ICT on Judges and Magistrates
Judges and magistrates can now write well researched judgments and give well founded and comprehensive directions basing their decisions on the vast jurisprudence of precedent available online. As the first step for equipping the Judiciary with proper ICT hardware, every judge was issued with an iPad and an iPhone, while each magistrate received a laptop to enable all judicial officers to key in their notes and save time on transcription and typing.[161]As a result judges can also access updated cases and statutes which have the overall effect of refining the quality of decisions we get from our courts.
At Milimani law courts up to ninety eight per cent of the technical and administrative staff are now able to access and use official email addresses and have also been trained on the how to harness ICT in their day to day activities.[162]
Communication with foreign courts in foreign jurisdiction
With the advent of ICT it is expected that in the near future our courts will be able to communicate through ICT with courts in other jurisdictions. The mode of service on foreign jurisdiction is enshrined under Order 5 Rule 21 of the civil procedure rules[163] where the courts through the chief justice utilize the services of the ministry of foreign affairs which liaises with consular and diplomatic channels to reach individuals in foreign states.
There exists no other form of communication other than the states foreign policy as such the Chief justice as alluded to initially has to come up with guidelines on how such communication will be conducted
Criticism
PravinBowryargues that the use of expensive, high-tech recording machines and other equipment gives a false impression that the courts are ICT enabled. There is a lot of wastage and the sad reality is that nobody has addressed these weaknesses. The ICT hardware and equipment is seldom used, useless, and now in a derelict state with television screens in some courts having been broken by litigants.[164]
4.4 How ICT has affected Advocates
1. Online application for practicing certificates.
Advocates intending to make applications for the following year of practice can do so online by accessing the Law society of Kenya website. Forms are available for download. Payments for the current practicing license can also be made either by cheque or credit cards. These are to a large extent the fruits of ICT in the legal profession.[165]
2. ICT has brought about more job opportunities for lawyers
ICT has presented an opportunity for advocates to act for various parties in cases with substantial Information Communication Technology issues. A perfect example can be seen in the case ofRoyal Media Services Ltd & 2others vAttorney General & 8 others[166]. Senior Counsel Paul Muite and Counsel Issa Mansur were some of the advocates instructed by the petitioner to appear in a matter that can be said to be properly within the confines of ICT.[167]The issue involved the migration of terrestrial television broadcasting from analogue to digital platform. The question before the court was whether the migration process infringed on the freedom of the media under Article 34 of the constitution.
3. Lawyers can now advertise
Initially under rule 2 of Advocates (Practice) Rules advocates were not allowed to advertise for their legal services. Justice David Majanja; in OkeyoOmwanza George & another vs. Attorney General & 2 others[168] declared the rule unconstitutional because it was inconsistent with article 46 and undermined article 48 of the Constitution.[169] The judge said the rule denied consumers of legal services access to information which could help them choose their favorite advocates and also impeded access to justice.
The LSK Council has now approved advertising through publication of the Advocates’ Marketing and Advertising Rules 2014.[170] Under Rule 7(1), the Advertising Media relevant to ICT is advertisement in a website or other digital platform on the internet. Advocates can as such market their services to a vast majority of the public and therefore increase their earnings.[171]
4. ICT has revolutionized Research
Most advocates in private practice have the nessecary ICT hardware and with good wireless internet connectivity online research on case law, legal opinions and enacted legislation is made easier. There are various websites that an advocate may access for legal research purposes such as; electronic Kenya law reports (eKLR), Lexis/Nexis, Halsbury’s law, Westlaw, and Bailii. ICT has as such revolutionized legal Reasearch amongst advocates in the legal professsion improving the quality of researched work while reducing the strain that an advocate has to go through to find relevant information.
5. Effective Communication between various stake holders
Advocates can efficiently convey and receive feedback from various stakeholder such as; professional colleagues, clients and the courts using various ICT services such as electronic mail. Such online communication saves time and money.
6. ICT enhanced proper Documentation and Record keeping for advocates
The legal profession involves intensive documentation and referral on various documents. ICT enables advocates to easily document their transactions and to work on documents simultaneously which saves a lot of time. Most advocates in Kenya use the Document Management Systems (DMS). It is the use of a computer system and software to store, manage and track electronic documents and electronic images of paper-based information captured with a document scanner.[172]
7. Through ICT Advocates have electronic evidence at their disposal
The Evidence Act section 106B[173] provides for the procedure and the conditions that need to be met in order for information contained in an electronic record to be admitted as evidence in court proceedings. These conditions are in the nature of statements made in evidence for the purpose of satisfying the court as to the integrity and reliability of the electronic record being produced in evidence. They include satisfying the court that: The electronic record was produced, fed into or derived from the computer in the ordinary course of business by a person having lawful control over the computer and that the computer was operating properly or if there was any way in which it was not operating properly, then such malfunction was not of such a nature as to affect the electronic record or the accuracy of its content.
The recent amendments to the Kenya Information and Communications Act[174] and the Evidence Act removed most of the uncertainties regarding the admissibility of electronic evidence. Some doubts linger about whether and how evidence captured, preserved and/or produced by electronic means is to be produced in court. The Security Law (Amendment) Act[175], Section 31 of the amendment act also outlines rules and guidelines on how electronic evidence will be presented to the court.
8. Though ICT Advocates can confirm on the status of adverse advocates and whether they are qualified to practice before court.
An advocate can through the Law Society of Kenya; Advocate Search Engine check for the status of the adverse advocate in a suit, to ensure that such advocates are qualified and competent to practice in court.[176] Indeed courts have held that failure of a client to confirm the practising status of his advocate is indolence which cannot be condoned or pitied.[177]
9. ICT has also reduced the job opportunities and prospects for some lawyers
This is evident on the fact that the members of the public can now seek and legal advice by gaining access to legal information online; similarly there are softwares that can generate legal documents such as wills and codicils once the individual responds to a series of questions asked by the software.
4.5 Effect of ICT on Paralegals
Paralegals assist lawyers in their work, such as preparing for briefs, trials, and hearings. In doing so, they may have to scheme through documents, and carry out legal research. With computers and laptops, they are able to carry out extensive online research, analyse the report then type, edit, and compile a report.
Paralegals, sitting in a client interview often take notes and later prepare memos for the advocates. With the advent of ICT note taking is effected through the use of computers and other ICT devices.
According to Mureithi, office automation enables people to perform their own work with relative ease. Tasks such as letter writing and report writing, data storage and processing are but some of the many tasks that one can accomplish by harnessing ICT tools such as spreadsheets, word processors and desktop publishing tools, presentation packages and database systems.
4.6 Effect of ICT on Law Lecturers and students
Lectures through ICT can use services like YouTube to record and teach vital lectures on certain topics. Furthermore there are enormous sources or law materials accessible online for law lecturers and students a like
Law students mainly research on the law in order to succeed in the rigorous undergraduate and postgraduate examinations. Through the ICT, law students can access law books, journals, scholarly articles, and judicial precedents online. Libraries of certain institutions have gone electronic. Moreover, some libraries have merged into one electronic library such as Jstor.
Among the useful websites, there is Google books, Law Africa, Halsbury’s law, Kenya law reports (eKLR), Lexis/Nexis,Halsbury’s law, Westlaw, and Balii. Websites like YouTube are vital in conveying recorded lectures on certain topics such as humanitarian law. A law student may find such a website useful as it hosts recorded lectures from different universities around the world.
5.0 EMERGING ISSUES
A. ADMISSIBILITY OF ELECTRONIC EVIDENCE
Tape recordings, video evidence, emails, and electronic documents are admissible as evidence pursuant to Section 106B of the Evidence Act. In Republic V. Edward Kirui[178], the prosecution adduced a news video footage portraying a stand-off between the anti-riot police and protesting civilians.In the footage, a police officer is seen covertly approaching group of civilians before breaking his cover and firing in their direction. Two of the civilians then lie on the ground, apparently injured, and the police officer is seen approaching them and then kicking at one of them before discharging another round from his gun at an unseen target.A number of prosecution witnesses stated that the police officer captured in the image was the accused person. The court admitted the video evidence and based on it and the testimony of the witnesses it was satisfied that the accused was the person in the video.
The above case set a position that presupposes that all electronic evidence especially electronic recording of conversations, video, and CCTV footages acquired by the investigator, is admissible in Court subject to its compliance with the rules provided in the Evidence Act. Profoundly, the courts find it challenging to authenticate such evidence. Electronic evidence is essentially easy to manipulate, hence could prejudice the facts in issue.
B. E-GOVERNMENT AND ITS IMPACT ON LAWYERS
E-government been defined as the delivery of public information and services through the use of ICTs.[179]It was launched in 2004 to enhance delivery of public services, improve information flow to citizens, promote productivity among public servants, and encourage citizens’ participation.[180]Ministries have websites which provide access to downloadable forms, publications and provide a platform for citizens to give feedback to the government.
E-governance has affected the daily lives of lawyers as it offers several online services. Lawyers can now carry out land searches through the land ministry e-platform instead of physically going to the land registries. They can also obtain KRA certificates for companies through an online site, www.kra,go.ke. These and other programs have made it easier for lawyers to provide legal services.
C. ICT AND LAWYER ADVERTISING
The Law Society of Kenya has allowed advocates to advertise their services. Previously, rule 2 of advocates (practice) prohibited lawyers from any form of advertising but this position was reversed in Okeyo Omwanza George &another vs Attorney General &2 others.
The decision triggered the LSK council to formulate and gazette the advocates (marketing and advertising) Rules 2014.The main purpose of these rules is to prevent unfair legal business. These rules are strict and encourage ‘objective true and dignified’ advertising.
Advocates can now advertise their legal services on radio, directories, internet, magazines, newspapers and publications (once per quarter). These rules however do not allow television ads and illuminated advertising.[181]
D. DIGITAL MIGRATION
Digital Broadcasting Migration is a process in which broadcasting services offered on the traditional analogue technology are replaced with digital based networks over specific period. The digital television migration is a Kenya Government initiative resulting from the decision of the Regional Radio Conference of 2006 in Geneva, Switzerland (RRC-06) under the auspices of the international telecommunication union (ITU).
The import of digital migration as an emerging issue relates to the Constitutional rights to media and property and the effect of digital migration will have on these twin principles. Its other impact is the fact that advertisements by lawyers in countries which allow unshackled advertisement will filter into the Kenyan TV scene. Is it tofar fetched to imagine a Kenyan Advocate seeking to advertise on Al Jazeera, for instance knowing that 80% of the pay TV providers show the channel in Kenya?
E. ONLINE DEFAMATION
Online defamation is the publication of such statements made on any internet based media including blogs, forums, websites and even social networking websites.
Libel and defamation cases can be tried under either criminal or civil law. For instance, in the High court of Kenya at Nairobi, Duncan Muriuki v Baobab Resort (Petition no 223 of 2012), and the plaintiff complained that some words published on the hotel’s Facebook page were defamatory. Aninterlocutory order was granted requiring the respondent to removing infringing content.
Due to the instantaneous nature of online defamation and the absence of a physical presence, the traditional defamation laws are at most times inadequate and require urgent review.
F. ELECTRONIC SIGNATURES
Upon enacting the Kenya Communications (Amendment) Act 2008, the country became the 6th African country after Tunisia, Egypt, Morocco, South Africa and Mauritius to enact a law addressing business in the cyber-space.
The law specifies the criteria to be met if a signature is to be valid. Criteria for reliable advanced electronic signatures are also spelled out to make use of advanced digital certification and cryptographic technologies. This allows for advanced categories of signatures to be afforded greater legal weights due to their presumption of greater reliability and trustworthiness. The Communication Commission of Kenya is empowered to facilitate and regulate electronic certification services by issuing licenses to prospective certification service providers.
G. CYBER CRIME
Cybercrime may be defined as computer mediated activities which are either illegal or are considered illicit by certain parties and which are conducted through global electronic networks[182] . In Kenya cybercrimes are governed by the Kenya Information and Communication Act and the Penal Code of Kenya. The Kenya Information and Communication Act dwells on offences committed against the IT infrastructure for instance deliberate interference with radio communication[183], improper use of telecommunication systems and misuse of electronic devices[184].
The penal code has also incorporated cybercrimes. For instance, Section 267 has included information as a thing that is capable of being stolen and therefore anyone who steals data from another’s cyber space is guilty of the offence of theft. An example of cyber theft was reported in the Business daily where Alex Mutugi and Stanley Mutua are being accused of theft of NIC Bank customer service data which they threatened the bank to release if they are not paid Kshs 6.2 million in bit coins (virtual currency) by the bank.[185]
The above legislations above have been criticised as not being conclusive as they are not conversant with emerging issues e.g cyber bulling of students in different social interactive forums.
H. IMPACT OF THE INTERNET ON THE LIFE OF AN ADVOCATE
Through internet, law firms, legal bloggers, and government organizations, dispatch legal information in their respective websites. As a result, people are able to seek legal services from advocates and be acquainted of the law. Use of Social Networking Websites
Websites such as Facebook, Twitter, Linked in and WhatsApp, enables advocates create profiles which contain information regarding their personal and professional lives. These social media platforms enable an advocate another platform to obtain new clients.
a) Advocate-Client Relationship
An advocate receiving client information through social media channels may not be in a position to monitor the information. The main reason behind this is because, advocates using these sites may not be in a position to include disclaimers and control the flow of information from prospective clients. Hence, raises ethical issues.[186]
b) Relationship between Advocates and Judges
Sites such as Facebook, Instagram, Twitter and Google plus bear an avenue in which in order for one to engage in one on one interaction, one has to either be their friend or follower. This type of interaction could lead to a serious breach of ethical obligations borne by the advocates and judges.
c) Blogging
Blogging is probably the biggest impact on the internet on the legal profession. Advocates and Law firms have taken to the internet to publish legal information and advice to the general public. What is the liability of the Advocate if on his website he gives wrong advice which is used by a person in the general public to his detriment?
I. ADVOCATES LIABILITY FOR STATEMENTS POSTED ON THE SOCIAL MEDIA
The Law Society of Kenya (LSK) is capable of taking disciplinary action on lawyers who post unpleasant comments on the social media.
Lawyers are also bound by the International Bar Association (IBA) Principles on Social Media Conduct for the Legal Profession.
According to the guidelines, lawyers are required to monitor their online and offline conduct, exercise restraint to ensure posted statements should be true and not misleading. The guidelines require law societies and regulatory bodies to encourage law firms to consider developing clear and coherent policies and guidelines on social media use.[187]
In conclusion, the legal profession involves a great deal of documentation and information processing, storage and retrieval. For this reason, there is need for tools and technologies that would speed documentation, information processing, storage, and retrieval. These tools and technologies are not only important but also professionally necessary. [188]Therefore, ICT is crucial in the administration of justice.[189] Use of ICT in the legal profession is a timely investment.[190]
LESSON FIVE
RECORDS MANAGEMENT
8.0 1.0 Introduction
Records Management refers to the creation, management, storage and destruction of records. This definition is simple and will not help us appreciate the importance of records management therefore reference to more authoritative institutions in this realm will help us understand this subject better.According to the United Nations Archives and Records management section, record management is defined as the “the efficient and systematic control of the creation, receipt, maintenance, use and disposition of records.” It also goes further to add that“records management is the process of identifying and protecting evidence, which comes in the form of records.”[191] This latter attempt to define records management maybe more suited to serve the legal perspective of this paper but a more general and in-depth analysis of Records management is prudent.
According to Brumm, record management is the application of systematic and scientific control to all the recorded information that an organization needs to conduct its business.[192] Finally from a legal practice management standpoint this would denote the creation and collection of information with regards to a legal brief, the subsequent maintenance and storage of that information; filing or electronically stored and the inevitable deletion of the record.
Taking into consideration the paradigm shift records management has taken from the traditional physical records to the electronic records that is rampant in this dawn of computers we will be remiss to omit a sphere of science that is related if not synonymous to the traditional record management that is information science. It is termed as "the study of the theory and practice relating to the creation, acquisition, processing, management, retrieval, and dissemination of information."This area deals with only electronic records.
It will then naturally follow that the application of information science to traditional records management practices has given rise to what is known as information resource management (IRM). This particular brand of records management has been characterized as the "a managerial discipline that views information as a resource analogous to financial, physical, human, and natural resources, and stresses the efficient and effective handling of information." [193]These information resources are similar to those that may have been targeted by the traditional record management systems except these are computer processed.
9.0 1.1 Importance of Record Management
To handle the importance of Record management we first have to tackle the legal basis of record management however this will be extensively covered in the subsequent chapter but as of now we will simply point out that it is imperative for organizations to manage records as a form of compliance of a statutory stipulation.
Record management ensures there is an effective retrieval system of authoritative information of previous transactions. This enables an organization to have at hand vital information that has been archived for a particular use.
Record management ensures that there is more effective use of resources in this sense: records that are obsolete and that are of no utility value to an organization are disposed with and this in turn frees up space within buildings and information systems. For organizations that outsource storage facilities this will lead to a reduction in overheads. Further to that, it also saves on time for employees or the individual retrieving the information will not waste time searching for records that no longer exist.
Deficiency of “complete information” may lead to poor decision making in an organization. Complete information refers to information that has all its constituents amalgamated and not dispersed. Information that is dispersed may not be effectively retrieved and this will hamper the arrival of a comprehensive decision. This point can’t be emphasized enough by Sue Myburgh’s take on the importance of information management when she stated that: “Essential elements of strategic information management also include the identification of internal information sources or documents that might be relevant to the organisations strategic direction. This means understanding how information containers or documents can be described and organised so that they can be retrieved effectively.”[194]
An ineffective record management system may culminate to financial loss for an organization for there won’t be a steady and efficient retrieval of reliable records. Good examples of this are scenarios of overpayment and debt book omissions will be recurrent.
Records management may help in the handling of confidential information with the required level of discretion. This will essentially insulate an organization from information leaks and also help minimize the chances of law suits against it.
The continuity of an organization may be hinged on particular records. The efficient management of records such as these may help in the continued functioning of an organization and essentially determine the life of an organization.
The risk of duplication of already existing records and the continued storage of records that have been superseded are minimized by record management.
9.1 1.1.1 Advantages of a good records management system
· Improved accessibility and retriveability of information by authorised users.
· Increased productivity with less time used accessing records to attain information requisite for objective thus better management decisions are made when information is availed.
· Improved accountability.
· Improved information integrity and preservation of organization memory.
Increased compliance with legal obligations i.e. responding to requests based on access to information for auditing.
10.0 1.2 Principles of Record Management
The Association of Records Management and Administrator's (ARMA) International developed and published principles to foster general awareness of information governance. These principles allow for flexibility taking into consideration the unique circumstances of each organization such as size of organization, sophistication, legal environment and resources.
The International Standard on Records Management, ISO 15489, was launched in October 2001 at the Association of Records Management and Administrator's (ARMA) International Conference in Montreal. ISO 15489 was designed to meet the ongoing generic needs for recordkeeping in a business environment, and is of use in governmentand non-government organizations. The standard is divisible into two parts;
ISO 15489 Part 1: General gives a high level framework for recordkeeping and explains the benefits of good records management, the legal considerations and the importance of making someone responsible for recordkeeping. This part also looks at what's needed for good records management, designing recordkeeping systems, records management processes, auditing and training.
ISO 15489 Part 2: Guidelinesis a guide to putting the advice given in Part 1 into practice. It provides specific detail on developing records management policy and responsibility statements and suggests a process for developing recordkeeping systems. It also provides advice about developing records processes and controls such as thesauri, disposal authorities, and security and access arrangements. It discusses how you might use these tools to manage (including capturing, registering, classifying and storing) your records. Further it offers advice on setting up monitoring, auditing and training programmes[195].
Regardless of whether or not an organization or its personnel are aware of the information governance programs will one day be judged through the performance of the organization.
i. Principle of accountability
Someone should be made responsible for purposes of being held accountable for the management of records in an organization. A senior executive or a person of comparable authority shall oversee the information governance program.
ii. Principle of integrity
The system for managing records ought to be onethat is authenticand that which can be relied upon by the organization in planning and budgeting, settling of disputes and in the policy and decision making of the organization.
iii. Principle of retention
Records are to be maintained for a justified period and thereafter may be destroyed to create room for newly generated records.Record management services provide the corporate memory of an organization. They preserve the evidence of an organization’s activities; enable timely access to current administrative information and to ensure that they are not inadvertently destroyed.[196]
iv. Principle of protection
The information governance program shall be in such a manner that ensures utmost secrecy and safety of information. A reasonable level of protection for records and information that is private, confidential, privileged should be exercised.
v. Principle of disposition
An organization shall provide secure and appropriate disposition for records and information that are no longer required to be maintained.The disposition phase is considered to be equally important when it comes to the legal and economical maintenance of office records. Records can be legally destroyed at the end of their active lives. Other records become semi active and are retired to records storage area for convenient storage. The records with long term value are returned to the archives for permanent storage.
vi. Principle of transparency
Records are to be documented in an open and verifiable manner and the documentation shall be made available to all personnel and the appropriate interested parties
vii. Principle of compliance
The information governance program should be construed to comply with legal, regulatory and standard requirements
viii. Principle of availability
Records should be maintained in a manner that ensures timely, efficient and accurate retrieval of information needed. The cost of maintaining records should be minimal.[197]
The source of the concept of archive and record management is derived from the point of view of records series and two primary principles which are life cycle and record appraisal.[198]
Records are created, received and used in the conduct of business activitiesto support the continuing conduct of business, comply with the regulatory environment, and provide necessary accountability. In addition organizations should create and maintain authentic, reliable and useable records, and protect the integrity of those records for as long as required.[199]
11.0 1.3 Objectives of the Study
i. Analyze records management cycle and implementation in Kenya.
ii. Evaluate legislation regulating records management.
iii. Compare development in this area between the Private and Public sector and make appropriate recommendations for future trends.
12.0
13.0
CONCEPTS AND METHODS OF RECORD MANAGEMENT
14.0 2.0 Introduction
There are two prominent concepts that have shaped record management in this era and they are namely:
· The Continuum theory
· The Record life Cycle Concept
15.0 2.1The Continuum theory
This is a record management theory that was propounded by Richard Berner and later developed by Australian academic, Frank Upward. According to this premise of record keeping, the records that are subject of management and utility are incorporated into a perpetual state of use as opposed to the record life cycle that captures the “death” or outlived usefulness of a record. The International Council on Archives defines the continuum concept as “a consistent and coherent process of records management throughout the life of records, from the development of recordkeeping systems through the creation and preservation of records, to their retention and use as archives.”It is palpable here that the records are archived as opposed to disposed.
16.0 2.2 Record Life Cycles Concepts
The life cycle is based on the idea that records become less important as time passes. It’s further postulated that the life cycle entails 90 percent of the use of a record taking place during the first 90 days after it is created. Subsequently after this high use phase, the cycle enters the phase where the usage of these records subsides to only when the records need to be looked up. It will then follow that the inevitably, that most of the records will soon have no use for the creator and prompting disposal. The remaining records will be recycled back into the creation and collection phase or archived for the purpose of future reference. Below is a diagrammatic representation of this version of the Record life cycle:
There are three critical phases under the life cycle record management concept. These are namely:
16.1 2.2.1 Phase I: Record Collection and Creation
This is where records are captured to facilitate adequate documentation of activities. This stage is key to effective records management, if done strategically it prevents non-essential records being created thus only creation of relevant records therefore enhancing value of records. At this stage it is important to address quality and quantity of the records created. Quality of records formulated or received should be accurate and reliable and should be obtained through precision to reduce errors. There should be uniformity in structure thereby avoiding un-necessary information. The records created should be serialized either with words or numbers thus improving accessibility and reducing duplicity therefore only required quantity is available.
In this regard, the record management material should be appropriate for the intended use. The records should be numbered to avoid duplication and ensure new records are created only on need basis. Durability and quality of recording materials is also important for effective records creation. Records are created through various ways; for instance a job application to an organization for a vacant position, correspondence between departments through letters or memoranda’s or emails and applications for job vacancies electronically.
16.2 2.2.2 Phase II: Maintenance and Use
This phase of the life cycle as the name suggests is where the records are used regularly and maintained in their place of origin or in an associated office. The recorded information is put into intended use after which such records are controlled and filed to safeguard it from destruction or tampering. The records created should be readily available in a cost-effective way and remain safe from destruction or un-authorized personnel. This step embodies filing and retrieval systems which accommodate operational requirements of the office as well as security of information requiring special protection. It focuses on the order in which records are filed and maintained and retrieved. Filing system used should permit ready identification of records of permanent value, periodic destruction of records of transitory value and regular transfers of non-current records to intermediate storage areas or record centers.
Some of the companies that maintain records in Kenya include inter alia: Crown Records Management Kenya and eManage Africa.
16.3 2.2.3 Phase III: Disposal of Records
Disposal is an important cycle of records management. It’s the destruction or transferral to archives of records, once they have reached the end of their retention period.[200] A record management policy should stipulate the retentions period of records and their disposal. Before disposal of records, records are appraised to determine those that should be archived and those that should be destroyed. Records that are of importance should be maintained permanently and can only be destroyed after thorough evaluation. Any document that may be required in the future should be retained. Documents that may be used in evidence in future should be maintained at least for twelve (12) years, lapse of the limitation periods. Records that are required on regular basis for reference should be retained at where they are easily accessible.
16.3.1 2.2.3.1 Factors to consider in Retention of Records
· Importance and effectiveness of a record- one should consider to what extent the company will be affected if a record is destroyed, if the effect is major then the record should be maintained.
· Need for future reference – Any document that may be required in the future should be retained.
· Need for legal reference – Any document that can be used as legal evidence should be maintained.
· Cost of storage - If the cost is high as to lead to losses then some or most will have to be done away with on the basis of importance.
· Legal requirement – the law requires that certain documents should be retained or even displayed within the business premises.
· Volume of records – if the volume is low, there is no need to destroy them and if it is high then there will be need to.
· Frequency of reference – Records required on a regular basis should be retained.
· Nature of documents e.g. receipts, certificates, pay slips etc - some such as certificates have to be maintained while receipts can be done away with remaining with only those that will be of importance in the future
· Existence of duplicate records – One copy should be destroyed.
· Company policy regarding retention of records. For instance a company may be sorting out its records every year to destroy the records that are not helpful. Some companies do it every two or even every five years. Destruction of records especially in government is regulated under the Records Disposal Act[201].
16.3.2 2.2.3.2 Methods of Records Disposal
The method of destruction of a record depends on how sensitive it is, and in what medium it is held. If sensitive material is not properly destroyed, unauthorized access to that material (whether intentionally or accidentally) remains possible, and this could cause reputational, commercial or competitive damage to the company and any individuals named in the record. Paper records could be found on rubbish tips, while specialists can retrieve data stored electronically from computers.
i. Paper records
Normal waste procedures: -This is effective where a record does not have sensitive materials.E.g. Recycle Bin
Shredding-The security provided by the shredding of records depends on how fine the paper is shredded. Cross shredding in a two axis shredder may be needed for particularly sensitive documents. Shredded paper may be pulped and recycled, or then used for other purposes such as insulation.
Pulping-Pulped paper is reduced to its constituent fibers. If carried out correctly, it is a very secure method of destruction. Pulped paper is usually recycled.
Burning/ incinerating-Burning records is not recommended and should only be used as a last resort if there is no environmentally friendly method of destruction available. Densely packed paper does not burn well, so burning should be undertaken in an industrial facility
ii. Electronic records
· Deleting- this is the simplest, easiest and most appropriate method for non-sensitive/non-confidential records because it involves hitting the delete key. However, this is not exactly the same as destroying records because it just destroys the access to the record. The records may continue to exist in the storage medium until they are overwritten and can be recovered using digital forensics.[202]
· Overwriting – this is to destroy old data by recording new data over it. This makes the possibility the records can be recovered much more remote than simply hitting the delete key.[203]
· Degaussing (magnetic media) – this involves exposing magnetic media (such as tapes and floppy disks) to a powerful magnetic field to scramble data. It may take multiple passes of the magnet over the storage media to ensure that the records are properly destroyed.[204]
· Physically destroying storage media – this is the most appropriate method for the most sensitive/confidential records. It involves shredding, pulverizing and incinerating.[205]
Some of companies in Kenya that are in the business of disposition of records include: Crown Records Management Kenya, InfoFort Secure Information Management, G4S Kenya, Armstrong Moving & Storage and The Filing Room Document Management & Archiving.
17.0 2.3 Methods of Records Management
17.1 2.3.1Electronic Records Management
Electronic records are informational or data files that are created and stored in digitized form through the use of computers and applications software. They are stored on various magnetic and optical storage devices and are products of computers and computer software.[206] Electronic records include numeric, graphic, audio, video, and textual information which is recorded or transmitted in analog or digital form such as electronic spreadsheets, word processing files, databases, electronic mail, instant messages, scanned images, digital photographs, and multimedia files.[207]
Two major trends in the world have made record
management move to the top of every corporation’s and the government’s short
list. The first is the continued explosive growth of
electronic records as originally created in an electronic record format
and as paper-based records converted to electronic form. The second
trend is the increasing number of statutory requirements, legislations, and
supporting business practices needed to maintain control of these records.[208]
Therefore, companies and governments have realized that, record management is
an activity that needs to be implemented by knowledgeable workers; an
electronic records management system is the only viable way to gain control
over the number of records in existence and those being created on a daily
basis; and an electronic records management system, by itself, is only a tool
to be successful, the system has to be user friendly and must be easily
extended to all people who create documents and records.[209]
Once records have been created, they must be managed and maintained for as long as required to ensure their authenticity, reliability, integrity and usability
17.1.1 2.3.1.1 Advantages of Electronic Records Management
Managing records digitally strengthens corporate governance by helping agencies meet legal obligations, regulatory and governance requirements in an effective and cost-effective way.[210]
From the moment the document is scanned, it becomes accessible from any computer by an authorized employee. Electronic documents can be retrieved immediately, shared and routed to any employee who needs it as compared to a traditional paper file.
The switch to electronic records can be a tremendous cost-saving opportunity for most companies and governments. The cost for filing cabinets, supplies and the real estate required to store them on site is substantial. If a company uses an off-site storage facility the cost to store and retrieve files is equally expensive. Add to this the cost for filing clerks and the downtime required to find specific files and the price of a manual filing system is substantial. With digital systems, there is a cost for the scanning and filing technologies, but once digitized, the cost for data storage is quite low.
A well-managed digital information and records management program is a risk mitigation strategy. The ability to demonstrate what and why decisions and actions were taken and how they were carried out reduces the risk of non-compliance due to incomplete or inaccurate records. Reputational risks that can result when information cannot be found are also reduced.
Authoritative records provide evidence of, justify or explain actions or decisions. They substantiate responses to audit, official inquiry or other types of investigation. Good digital management means that records are trustworthy, authoritative and able to withstand scrutiny. There are also accountability benefits that are difficult to duplicate in paper systems. Comprehensive and accurate audit trails show when a record was created, accessed or amended and by whom.
Organizations are increasingly replacing their paper files with electronic records as a space-saving strategy. Thousands of records originally in paper format are scanned and converted into computer files for storage in CD-ROMs taking only a small space previously required by filing cabinets and boxes.[211]
17.1.2 2.3.1.2 Challenges and Concerns over Electronic Records
Digital media such as floppy disks, hard disks, magnetic tape and CD-ROMs are generally not as stable as traditional media and, as a rule, deteriorate at a much faster rate than paper and microfilm. It simply means that within a short period of time, often only a decade, digital records can become unusable because the medium in which they are stored might become unreadable.[212]
Electronic records management can be outdated. Unlike paper documents, which can be read directly by the human eye, a digital record requires the intervention of machines. Without the relevant hardware, the medium on which electronic records are stored cannot be read. Even with the right hardware, records will not be readily available in a human-readable form without the software program that originally created that record.[213]
Owing to lack of authentication in electronic records, there is potential for corruption and fraud in the electronic environment.[214]
17.1.3 2.3.1.3 Use and Maintenance of Electronic Records
Records captured into an electronic records
management system must be protected
against intentional or accidental alteration of their content, structure and
context
throughout their life to retain their authenticity.[215] Records must also be
accessible and available on-demand, which means adequate indexing, must be
applied prior to committing the document to a storage system. The storage
system must be subject to media decay or become obsolete, which would endanger
the status of the record itself. Some of storage media include: hard disks, floppy disks, tape storage, CD-R, Compact Disc-Recordable
("CD-R") discs, CD-RW and DVDonline,
offline and near-line.
17.2 2.3.2 Filing
Filing refers to the process of classification and designation of records to the correct location in the file plan. It may also entail, aside from the physical aspect of filing, electronic filing that is more contemporary than the former. An electronic filing system is a computer based system that basically fulfills the same function as that of its early counterpart.
As far physical filing is concerned there are two systems of filing that an organization can implement and these arecentralized filing system and decentralized filing system. Centralized filing involves all of the records being held in one location in the organization. This type of filing ensures that there is greater control over the files which enhances uniformity and consistency.
Decentralized filing scatters the filing in all areas of the organization. It is most useful when there is only one primary user of a specific record. This type of filing reduces misplacement of files and limits the accessibility of files thus promoting confidentiality
17.2.1 2.3.2.1 Modes of filing
Physical filing can be effected in the following modes:
Alphabetical Filing-This is the arranging of records in alphabetical order. This proves to be most helpful when records are retrieved by name or topic. Alphabetic files can be arranged either in a Dictionary order whichinvolves each subject being allocated its own problem or Encyclopedic order whichentails subjects being grouped into major headings.
Subject Filing System-Subject filing method involves the record manager assigning a phrase that distinguishes the file from the rest of the other files and this will serve as the title to that record. It involves the use of a file or records descriptive features or underlying subject to act as its signature.
Miscellaneous Filing-The primary aim of this filing is to act as a temporary holding area for files that are of no utility value to the organization.
Geographical Filing-This is a filing system that arranges records in an alphabetical or numerical order based on the geographical source or destination of the record.
Chronological Filing-A chronological system is most useful for records that are created and monitored on a daily basis. Folders are arranged by sequential date order. It is use of both letters and numbers to organize records.
17.2.2 2.3.2.2 Importance of a Filing System
Continuum of Records-A filing system ensures that there is perpetuity of information and records. This is to say that a filing system ensures retention of records and information in an organization for future reference.
Organizational efficacy-Filing systems reduce the time required to retrieve records and information and this culminates to a shorter decision making time for the organization
Communication uniformity within an organization and between organizations. A filing system ensures that there is uniform communication in an organization by accurately categorizing and organizing records and information so that their retrieval and dispatch from any organizational level are constant.
Easy orientation of new personnel in handling and retrieving files. Where there is a set system of record storage such as a filing system, there is ease in familiarizing record protocol to new personnel and also personnel that have been newly transferred to that division of the organization.
Ensure compliance of legal and audit record retention standards.There are statutory requirements that will be expounded in the next chapter that oblige organizations to maintain certain records that are crucial such as employee records and tax remittances. A filing system ensures that these records are well tended to and inventoried.
LEGAL FRAMEWORK FOR RECORDS MANAGEMENT
18.0 3.0 Introduction
Compliance with legal and statutory requirements is one of the core reasons why records management has evolved to its current status as corporate and governmental management priority. This Chapter shall explore the legal framework for management of records in Kenya, looking into all sources of law as contemplated by Article 2 of the Constitution of Kenya.
19.0 3.1The Constitution of Kenya
Article 31 of the Constitution of Kenya enshrines the right to privacy which requires that an individual’s information relating to family or private affairs shall not be unnecessarily required or revealed, nor their communications infringed.Article 33 provides for the freedom of expression and attendant to it is the freedom to seek, receive or impart information or ideas.These constitutional articles as read together with the Data Protection Bill of 2013(when passed into law) impose a duty on any individual or organization handling any information to do so within these legal confines.
Article 227 of the Constitution of Kenya; on procurement of public goods and services tasks parliament to prescribe a legal framework within which policies relating to procurement and asset disposal shall be implemented. These assets for disposal include valueless records of public entities whose disposal are provided for in The Public Procurement and Disposal Act Chapter 412.C and is further extolled in The Public Procurement and Assets Disposal Bill 2014 which is yet to pass into law.
This necessitates record and informational management to guarantee these fundamental rights which may only be limited as guided by the Constitution and violation of which attracts sanctions.
20.0 3.2Acts of Parliament
Records Disposal Act Chapter 14 of the Laws of Kenya
This provides for the disposal of records which are in the custody of the High Court and other subordinate courts, or of the Registrar-General being the Attorney General of the Republic of Kenya, which are of no further use and need not be preserved permanently.[216] The Chief Justice and the Attorney General in deciding which record to dispose must liaise with the Chief Archivist subject to the provisions of the Public Archives and Documentation Services Act.[217]
Public Archives andDocumentation Services Act Chapter 19 of the Laws of Kenya
This Act provides for the proper housing, control and preservation of all public archives and public records. It also provides for national documentation and information retrieval services, public access to public records, not to forget the destruction of public archives.[218] It is the most fundamental legislation for the management of public records and guides all public entities in the management and disposal of such public records.
The Public Procurement and Disposal Act Cap 412 C of the Laws of Kenya
This provides for the disposal of stores and equipments of a public entity that are unserviceable, obsolete or surplus.[219] This may include such valueless records of a public entity. The Act establishes a Disposal Committee to decide the best method of disposal, be it, destruction, and dumping, burying, sale by public auction among others.[220]The Act is in the process of being amended by the 2014 Procurement and Assets Disposal Act which will give effect to article 227 of the Constitution of Kenya 2010.
Kenya Information Communication Act 2013 Laws of Kenya (as read together with the Revision of Laws Act)
Thisprovides the legal basis for publication of laws in electronic format essentially giving recognition to electronic records.[221] The Kenya Law Reports and the Kenya Law Reform online platform allow all and sundry to access fairly all the laws of Kenya with ease and guarantee as to the exactness of such laws. The Kenya Information Communication Act read together with the Evidence Act Cap 80 provide for admissibility of electronic records in evidence in both criminal and civil proceedings.[222]
21.0 3.3International Law and Standards
ILO Code of Practice on Protection of a Worker,1997
ILO’s code of practice on protection of a worker requires that personal data appertaining to a worker, be used lawfully and fairly, and only for reasons directly relevant to the employment of a worker. It provides for principles of data protection which regulate data collection and use, as well as protection of data subjects.[223]
International Financial Reporting Standards
The International Financial Reporting Standards (IFRS) are a core set of accounting standards that are being adopted by countries around the world.[224] The globalization of business and finance has created the need for a common set of accounting standards to be used by all countries as a way to increase the efficiency of cross-border transaction handling and accountability.[225] These standards determine the accounting methods to be adopted and the standard documents to be prepared. These therefore have a bearing in how an entity organizes and manages its records to ensure compliance and global competitiveness.
International Standard ISO 15489 & 9001
The international standard ISO 15489: Information and documentation — Records management was published in 2001, and provides a high-level framework for records management workflow.
Primarily developed for the management of business records, ISO 15489:2001 can be applied to the management of records created by any activity, and is equally applicable to digital or hard copy information.[226]
The standard is made up of 2 parts. ISO 15489-1:2001, Part 1: Generalwhich outlines a framework for best practice, and is intended as a general briefing document, on the basic principles of managing records, for all staff and management of an organisation. ISO 15489-2:2001, Part 2: Guidelineswhich builds on the best practice framework to give more detailed recommendations for managing records, including a design and implementation framework for records systems, based on the 8 step DIRS methodology (also known as DIRKS methodology).[227]
The standard provides guidance to ensure that records remain authoritative through retention of their essential characteristics;authenticity, reliability, usability and integrity. It explains how to ensure records are properly curated, easily accessible and correctly documented from creation for as long as required.[228]
ISO 15489 identifies how systematic management of records can ensure that an organisation, an individual or a project's future decisions and activities can be supported through ready access to evidence of actions, and past business activities, while facilitating compliance with any pertaining regulatory environments. It outlines the need for clearly defined and well documented records management policies and responsibilities, within an organisation or project, along with the benefits which will accrue from development and implementation.
ISO 9001:2000 on quality management has requirements for management of records to ensure that records are approved before they are distributed and their correct versions are provided at point of use. It also requires that compliance is evidenced by records and that there exists elaborate procedures for control of records all as safeguards of quality.
University of Nairobi has an elaborate records management policy which mirrors the provisions of ISO 15489 and ISO 9001.It establishes various systems of record management which include mail management for the coordination of incoming and outgoing mail from the designated offices. It also provides for a file/document management system which may be done manually or through a record management information system. It provides for the use and maintenance of records with elaborate provisions for storage and preservation of records whether current or long-term. Therein is a provision for a Disaster Management Plan for the protection of all records through digitization and microfilming.
For the university, disposal of records shall be initiated at departmental levels upon consultation with the Vice Chancellor and as guided by the provisions of the constitutive Act of the University of Nairobi and its Records Retention and Disposal Schedule.
The need for proper records management may not be over emphasized and this research has adequately justified this position. Kenya as the pacesetter in East Africa should recognize the opportunities that underlie proper records management and exploit them for growth and development. With a sufficient legal framework and a digital government in power,this undoubtedly comprises a development agenda.
22.0 LIST OF INTERNATIONAL CONVENTIONS AND STANDARDS
· INTERNATIONAL LABOUR ORGANIZATION CODE OF PRACTICE ON PROTECTION OF A WORKER 92-2-110329-1[ISBN]
· INTERNATIONAL STANDARDS ORGANIZATION 1589-1:2001 INFORMATION AND DOCUMENTATION—RECORDS MANAGEMENT, ISO/TC/46/SC11
· INTERNATIONAL STANDARDS ORGANIZATION 9001: 2008 QUALITY MANAGEMENT SYSTEMS—REQUIREMENTS, ISO/TC/176/SC/2
LESSON SIX
LESSON SEVEN
SAFETY AND SECURITY
INTRODUCTION
There is a close relationship between safety and security and any attempt to divorce these two concepts is necessarily met with resistance. The relationship is such that weaknesses in security create increased risk, which in turn creates a decrease in safety. This therefore, denotes that safety and security are directly proportional, but are both inversely proportional to risk.[229] However, despite this close relationship, the ‘exit door dilemma’ shows their antagonistic in nature:
“The number of emergency exit doors left opened in a building should be kept at its maximum in one perspective, that is the safety approach, and to its minimum in the other, that is the security approach.”[230]
This inherent conflict between safety and security makes the realization of both these aims on an individual and collective level difficult due to the adverse impact they play on human beings as their prime beneficiary as well as victims alike. Care must be exercised in defining the terms of safety and security so as not to extend the scope too broadly to include all types of problems, yet at the same time not to narrow it as to give it marginal importance.
24.1.1 1.2 Importance of Safety and Security
Safety and Security equally derive their realization and importance in the Constitution of Kenya, 2010.[231]
Chapter Four of the Constitution, which specifically deals with the Bill of Rights, numerous articles strive to give these two aspects recognition in Kenya.
(i) On an individual basis, the safety and security of a person can be interpreted as their rights and freedoms which include right to life, freedom from discrimination, right to dignity, privacy, right to a clean and healthy environment among others.[232]
(ii) Protection of organizational safety and security rights find expression in Article 41 which expressly deals with labour relations declaring every person’s right to fair labour practices
(iii) The national foundation of safety and security is found in Chapter 14 of the Constitution, which expressly deals with National Security.
Safety and security of individuals, organizations and state is of paramount importance for the following reasons: it determines the social and economic growth of a country; it secures an individual’s right to life[233] and human dignity.[234] Further,
1) The right to fair labour relations which includes fair remuneration and compensation increase the morale of workers, their effectiveness and efficiency. It also reduces the risk of illnesses and related costs like medical care, sick leave and related costs.
24.2 1.3 LIMITATIONS ON IMPLEMENTATION OF SAFETY AND SECURITY
I. The disconnect between security agencies creates a communication breakdown.
II. Corruption at the boarders, work stations, National police service
III. Poor implementation framework due to lack of political good will and ignorance of the same.
IV. Too many laws that create confusion and duplication of roles
V. Political interference or political instability of a country
24.2.1
24.3 1.4 Definitions
(a) Safety
Safety is the condition of being protected from, or unlikely to cause, danger, risk or injury.[235]According to the Black’s Law Dictionary, ‘Safety’, having been derived from the word ‘Safe’, is defined as ‘the amount of exposure that will cause no harm or danger after exposure.’[236] Protection, in this case, may include protection against physical, social, spiritual, financial, political, emotional, occupational, psychological, educational danger, risk or injury which would be considered undesirable
(b) Security
Similarly, security can cover a wide area in its meaning and application. However, the most common meaning of security is ‘the state of being free from danger or threat. Security is the degree of resistance to or protection from attack, harm or damage.[237]According to Black’s Law Dictionary, security is defined as ‘protection; assurance; indemnification’.
24.4 2.1 SECURITY & SAFETY OF THE INDIVIDUAL
Human or individual security is the protection of the individual's personal safety and freedom from direct and indirect threats of violence.[238] Chen focuses the concept of security on human survival, well-being and freedom.[239] It is the promotion of human development and good governance, and, when necessary, the collective use of sanctions and force are central to managing human security. States, international organizations, non-governmental organizations, and other groups in civil society in combination are vital to the prospects of human security.
Threats to an individual’s security, are often understood as issues of safety i.e. freedom from harm, whether physical or psychological. On a global scale, the United Nations Declaration of Human Rights states that all people are entitled to ‘security of person’ and reinforces the freedom from physical harm and psychological harm.[240] On a national scale the protection of individual’s security is embodied in legal structures. These include, but are not limited to, laws against murder, sex crimes, bodily harm, theft and psychological harm such as coercion or undue influence. The state assumes responsibility for constructing and implementing these legal regulations.[241]
24.5 2.2 SAFETY AND SECURITY IN ORGANISATIONS
24.5.1 2.2.1 Safety in the Workplace
In order to secure the safety and security of an organization, it is imperative that employers and employees alike are acutely aware of the hazards associated with their jobs and legal rights and obligations. While some experts argue that technological and environmental changes in the workplace have over time outpaced knowledge and the ability to identify, prevent and protect against hazards, others believe that the quality of an organizational safety environment is directly related to the culture of the organization and that of its leaders. Some of the primary causes of fatal workplace injuries are human error, procedural insufficiency, and equipment inadequacy and malfunction.
24.5.2 2.2.2. Advantage of an efficient OHS[242] policies in Organizations
Employee health and safety aid greatly in the productivity and competitiveness of an organization. An organization is able to meet all its organizational goals thus, in the long run, greatly improving national and global economies. The general employee morale is raised because employees are certain of their safety in their various workplaces. Highly motivated employees naturally perform well in their organizational duties. Occupational diseases are reduced hence reducing the amount of budget used for treatment.
24.5.3 2.2.3 Injuries Sustained at the Workplace:
The International Labour Organization, during the Sixteenth International Conference of Labour Statisticians,[243] set out to develop a comprehensive programme of statistics on Occupational safety and Health. This included Occupational diseases and occupational injuries. The conference was also held with the aim to provide comprehensive and timely information on occupational injuries for prevention purposes. [244]
24.5.4 2.2.4 Security in the Workplace
Threats to an Organization’s security may be from external sources or they emanate from within. They can be violent threat to people and assets, such as a bomb threat or robbery but may be more covert, for instance the illegal use or theft of information. Nevertheless any interference with a worker’s right and freedom to work peacefully and earn a living from their job affects their job security; job tenure, freedom from discrimination and forced labour are pertinent issues.
In order to prepare for an emergency, an organization ought to: To undertake a risk assessment; identify its assets; determine the potential impact of an accident; and how to minimize risk by providing sufficient emergency equipment and exit and recovery strategies.
24.5.5 2.2.5 The Law on Occupational Safety and Security
The main statutory provisions dealing with safety and security in the workplace are: the Employment Act, 2007, Cap. 226, the Work Injury Benefits Act, 2007 (WIBA), and the Occupational Safety and Health Act, 2007 (OSHA). These statutes find their basis in Article 41 of the Constitution which provides for the right to fair labour practices, fair remuneration, reasonable working conditions, going on strike, participation in collective bargaining. The statutory provisions are in compliance with the Conventions of the International Labour Organization (ILO) which Kenya has ratified and thus forms part of the law of Kenya.[245]
Occupational Safety and Health Act was enacted to place obligations, on an occupier employer and employee regarding proper safety measures,[246] use of protective equipment, duties to report hazards, creation of a safety policy, the establishment of safety and health committees in workplaces, as well as safety audits and risk assessments. Criminal liability in fines and jail terms attaches to non-compliance. The Act also contains provisions on general health provisions, machinery safety, and chemical safety and creates the office of Occupational Health and Safety Officer.[247]
The Work Injury Benefits Act provides that an employee involved in an accident or who contracts an occupational disease arising out of and in the course of their employment that result in either temporary or permanent total or partial disablement, or death, has a right to compensation from his or her employer.[248] Every employer is required to take out an insurance policy for this purpose and shall provide appropriate medical aid such as first aid.[249]
The Employment Act provides for the fundamental rights of employees, to include fair remuneration, reasonable working conditions, protection from slavery and forced labour. [250] Employers must protect employees from sexual harassment and discrimination by creating a policy statement and take disciplinary measures against perpetrators of the same. [251]In VMK Vs CUEA[252] an employee was discriminate on grounds of HIV/ Aids. Employers must also regulate the hours of work, leave, housing, water, food and medical attention aim to ensure the wellbeing and safety of an employee. [253]
24.5.6 2.2.6 Office Security
Offices, especially government offices and public establishments such as shopping malls are common targets for theft, unlawful entry, kidnapping, bombings, forcible occupation and sabotage. Effective physical barriers like alarm systems and security guards can reduce the likelihood and severity of these threats. The insecurity caused by recent terrorist attacks in Kenya has led to the implementation - particularly in urban areas - of screening procedures and checkpoints at entry points of public institutions, business premises (e.g. office buildings, shopping malls etc.), private institutions such as churches and schools, and even public transit vehicles. However, the recent terrorist attacks have demonstrated that these external barriers are insufficient as a stand-alone strategy since office security also depends on the integrity of individuals and groups occupying an establishment. Other strategies include issuing name tags, control badges with employees’ photographs, and key-card access systems. Also key are policies that designate a head of security and mobilize the available local resources such as the fire brigade, ambulance and police. Every employer should employ the safety strategy that favours the comfort of the employees.
2.2.7 Job Security/ Job Tenure
Job security or employment security is defined as the probability that an individual will keep his or her job. It is the protection of workers against fluctuations in earned income as a result of job loss.[254] The job security of Kenyan workers was recently raised when Tracy Barnes, the Group Finance Director of East African Breweries Ltd. was summoned for questioning by the Director of Immigration and Registration of Persons over allegations of racial discrimination from an aggrieved former employee who reported that Barnes mistreated and intimidated Kenyan workers in order to replace them with foreign workers. Job security and tenure can be statutorily provided for. For example, the Constitution offers security of tenure to the Chief Justice and other judges.[255]
24.6 3.1 NATIONAL SAFETY AND SECURITY
National safety and security can be defined as the actions and policies taken by a nation against both internal and external threats to its borders and economy stability. Internal security refers to the act of keeping peace within the borders of a sovereign state or country generally by upholding the national law and defending against internal threats to the state’s citizens, or organs and infrastructure. This may range from petty crime, serious organized crime, political or industrial unrest or even domestic terrorism.
External security refers to protection against external aggression usually by a state’s military wing.
For safety to be guaranteed then there has to be some measures both legal and social for this to be achieved. Safety and security therefore work hand in hand as one cannot exist without the other.
Reasons for national safety and security could be to ensure service delivery to the people by the state, foster and boost economic growth and private sector development, ensure contributions to development outcomes, that is, reduction of poverty and underdevelopment, among others.
24.6.1
24.6.2 3.2 STATUTORY PROVISIONS
The Constitution defines national security as the protection against internal and external threats to Kenya’s territorial integrity and sovereignty, its people, their rights, freedoms, property, peace, stability and prosperity and other national interests.[256] The national security docket is vested in the National Government.[257]. In the 2015- 2016 national budget, the total allocation for military and the police is Kshs. 215 billion. [258]The Kenya Defence Forces (KDF) and the Intelligence Department was allocated Kshs 16 Billion more than last year, while the police received an additional Kshs 10 Billion. Despite calls by County Governments to devolve the security function, it is difficult for the devolved units to handle such an important docket because of poor human resource management, insufficient resources, political interference, corruption and the status accorded to the security docket.
Article 238(2) provides for the principles that promote and guarantee national security in Kenya to include: utmost respect for the rule of law, democracy, human rights and fundamental freedoms. The national security organs shall reflect the diversity of the Kenyan people in equitable proportions.[259]
KDF is a national security organ, established in the Constitution under Article 241 and under the Kenya Defence Forces Act, constitutes the Kenya Army, Kenya Air Force and the Kenya Navy.[260] The Defence Forces are responsible for the defence and protection of the sovereignty and territorial integrity of the Republic; assist and cooperate with other authorities in situations of emergency or disaster, and report to the National Assembly whenever deployed in such circumstances; and may be deployed to restore peace in any part of Kenya affected by unrest or instability only with the approval of the National Assembly.
The National Intelligence Service (NIS), a national security organ, established under Article 242 of the Constitution, is responsible for security intelligence and counter intelligence to enhance national security and perform any other functions prescribed by national legislation.[261]
The National Police Service (NPS) a national security organ established under Article 243 and the National Police Service Act. The NPS shall be mandated to comply with the constitutional standards of human rights and fundamental freedoms; train staff in accordance with the highest possible standards of competence, integrity and professionalism, and promote relationships with the broader society.
The controversial Security Laws(Amendment)Act 2014 Act had eight unconstitutional provisions on security[262]. Section 66 of the Bill for instance amends the National Intelligence Services Act by introducing a new part V on covert operations. [263]Section 72 of the Bill introduces a new section 9A which criminalizes anyone who advocates, glorifies, advises or incites the commission of a terrorist act. The unconstitutional sections should be reviewed to align with the new constitution in Kenya.
24.7 4.1 INTERNATIONAL SAFETY, SECURITY AND HEALTH
On the international plane, the United Nations[264] is the organization tasked with the central mission of maintaining international peace and security.[265] This function is carried out primarily through the UN Security Council (UNSC)[266] (SEE ANNEXTURE E) which plays a key role in conflict resolution, through preventive diplomacy and mediation,[267] conflict prevention,[268] peace-building activities, countering terrorism[269], disarmament and non-proliferation[270] of weapons of mass destruction.[271] It has power to enforce sanctions such as collective, military action and arms embargoes..[272]
The International Labour Organization (ILO) [273]has set standards that ensure the protection of employees at their work places. Some include: Occupational Safety Health Convention[274], Occupational Health Services Convention[275], and Promotional Framework for Occupational Safety and Health Convention[276]. According to the ILO, around 160 million people suffer from occupational diseases and 2 million people die every year as a result of occupational accidents and work related diseases and injuries. Similarly, around 337 million fatal and non-fatal accidents occur each year.[277] The figures are however highly underestimated as nearly 50% of workplace injuries remain unreported, more so in developing countries. ILO has further estimated that nearly 5% of worlds Gross Domestic Product (GDP) is lost due to occupational diseases and accidents and diseases has been approximated at US$ 5billion.[278]
25.0 5.0 CHAPTER FIVE
A comparative analysis of other jurisdictions, notably Russia and the United States of America (USA) based on their best practices at the international level with regard to safety and security is an eye opener on extent of security measures that exist.
25.1.1 5.1.1 Lessons from Russia
The Russian Federation is the world’s largest nation covering an area of 17.1 million km2 with a population of142, 470,272.[279] Russia has made significantly improved the quality of life of its citizens over the last few years, despite lower than average scores in indicators like the Better Life Index. Russia spends 18.7% of its annual national budget on military and the safety of the nation.[280] On 9th May 2015, while marking the 70th anniversary of the WW2 defeat of the Nazis she held its largest military parade since the Soviet era, boasting the best state of the art fighting equipment in the world. Russia’s police force is under the Ministry of Interior Affairs.[281]
The Russian police force was in the past distrusted by the public due to endemic corruption and injustice. The police on the other hand argued that they were understaffed and poorly paid. This is similar to the situation in Kenya; a recent survey[282] shows that there is endemic corruption in the Kenyan police force, who are understaffed, under paid, and face dire working conditions and housing. Many stations lack mere first aid kit, not to mention inadequate or inexistent health facilities. The police officers in Kenya further lack the training and capacity to handle emerging crimes like cyber space crimes.
Police reforms in Russia implemented reforms that increased officers’ salaries[283] and reviewed all officers’ files discharging those found unfit due to corruption. This has greatly increased public confidence and satisfaction with the police. As a result of these reforms, Russia has been able to win various wars and maintain the safety and security of its people. Kenya can borrow from Russia from this reform experience and implement basic strategies for military operations, safety and security control mechanisms in order to fight emerging crimes like terrorism.
25.1.2 5.1.2 Lessons from the United States of America
The United States of America is the World’s super power and the highest spender in the world on military, intelligence and security. Currently, the budget stands at US $one(1) Trillion which constitutes half of the national budget. It has also recruited 66,000 special operation troops in the military. United States has invested on emerging crimes like cyber security, piracy, fraud and terrorism. It has adopted various counter terrorism laws in alignment with the International Law principles. This has for example led to the success of various operation forces in various countries like Syria, Iraq, Afghanistan and Somalia including the successful killing of Osama Bin Laden in 2011. United States has adopted the OSHA policies in all work place in line with the ILO principles. Every employer must comply to afford an employee reasonable working conditions.
25.2 6.1 EMERGING ISSUES IN SAFETY AND SECURITY
25.2.1 6.1.1 Cyber Crime
Advances in technology have revolutionized the way wars and attacks are carried out, thus adding to the traditional conceptions of security, Cyber crime refers to criminal activity or a crime that involves the Internet, a computer system, or computer technology[284] Types of cyber crimes include, hacking, identity theft, malicious software, child pornography and abuse, stalking. Kenya loses an estimated Kshs. 2 Billion annually through cybercrime. Recent hacking includes the theft of Safaricom airtime worth Ksh 20,000,[285] Kshs. 6.2 million from National Investment Bank (NIC), and the prosecution of 77 Chinese nationals arrested and charged for infiltrating bank accounts, M-PESA accounts and ATMs.[286]
The Kenya Information and Communications Act[287]deals with electronic fraud[288], unauthorized access to computer data,[289] access with intent to commit offences[290] and unauthorized access to and interception of computer service.[291]
25.2.2 6.1.2 Community Policing
Community policing is a concept introduced in Kenya as a means of promoting security in Kenya both at individual level as well as at national level. It has been effected in various towns with the aim of introducing it everywhere in the country. It is an organizational strategy, that allows the police and the community to work together in new ways to solve problems of crime, disorder and safety issues to improve the quality of life for everyone in that community. Article 244(e) of the Constitution of Kenya, requires that the Service fosters and promotes relations with the broader society.[292]
25.2.3 6.1.3 Vulnerable Persons
(a) Women and Security
Gender equality is critical to stability and sustaining peace and reconciliation. In conflicts, women and children are the most vulnerable group and suffer the most. The UN Security Council Resolution, ratified by Kenya, recognizes the important role of women’s in the prevention and resolution of conflicts, peace-building, and the need to increase their role in decision-making in this regard.[293] UN Resolution 1325 [294]calls for increased womens’ participation at all levels of decision-making. While Kenya has implemented various anti-discriminatory laws, policies have not been fully implemented to protect women and children from gang raids, rape, child tourism, child labour, women employment rights especially those working at the EPZ schemes and the general security of women.
(b) Protection of Persons with Disabilities and Persons living with HIV/AIDS
The Persons with Disability Act [295]and the Constitution[296], provides that persons with disabilities are entitled to be treated with dignity and respect, to access educational institutions and facilities and to reasonable access to all places, public transport and information. Nevertheless, the National Disability Council has reported that most public buildings are still inaccessible to persons with disability. Affirmative action is also required to include persons with disability. On 29th February 2015, the High Court of Kenya ruled in favour of the persons living with disability, overruling nominations for disabled persons and the persons living with HIV/AIDS (PLWAS) in Nyandarua County which had been taken up by able bodied persons.
Persons living with HIV/AIDS face greater risk of occupational diseases and require special attention in any organization. The HIV/AIDS Prevention and Control Act No. 14 of 2006[297] provides for non-discrimination PLWAS by virtue of their health status.
25.2.4 6.1.4 Piracy
Piracy has recently been a serious threat to security in Kenya although Kenya has taken a lead in overhauling its legislative framework with a view to effectively dealing with the challenges that have been posed by the phenomenon of piracy.[298] The prosecution of piracy in Kenya is currently undertaken under the Merchant Shipping Act, (Act No. 4 of 2009)[299] initially the offence was provided for under Section 69 of the Penal Code. [300] The jurisdiction of the Kenyan courts has been extended to try piracy committed by non-nationals in the high seas, it also defines more extensively and comprehensively the offence of piracy than was previously defined under the repealed section. Kenya has ratified the United Nations Convention on the Law of the Sea (UNCLOS)[301] which calls for member states to co- operate in fight against piracy.
25.2.5 6.1.5 Extradition
Extradition is an official process regulated by treaty, whereby one nation, surrenders a criminal suspect or convicted person to another (requesting state) over whom the latter requests to exercise jurisdiction in the case or suit.[302] This prevents enforcement actions such as abduction in order to uphold the international law principles of state sovereignty and territorial integrity. The Extradition (Contiguous and Foreign Countries) Act,[303] provides for the enforcement of agreements for extradition between a non-Commonwealth and Commonwealth country[304] subject to such conditions, exceptions and qualifications as may be specified in a Minister’s order.
An arrest warrant for a criminal fugitive may be issued by a magistrate.
National courts have allowed or held that a person abducted in violation of international law may be tried in the courts of the abducting state. For example, some terrorist attack suspects of the US Embassy in Nairobi were extradited to the US in 1998.
25.2.6 6.1.6 Terrorism
The League of Nations Convention [305]defines terrorist acts as ‘all criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons or a group of persons or the general public.’ Terrorism has posed great sabotage in political, social and economic spheres of Kenyan society. Recent attacks in various parts of the country have immobilized activities and economic growth of the country. Kenya has also enacted the Prevention of Terrorism Act No. 30 of 2012[306] to read together with the Terrorism Regulations 2013.[307] The Security Amendment Bill 2014 has failed to be implemented due to its controversy and lack of a good political will. So far, since the travel advisory by United Kingdom and United States of America was issued in 2014, 28 hotels have closed between September, 2014- May 2015. The number of tourists to Kenya has fallen to 40%. This has lowered the foreign exchange that Kenya gets from tourism. This has further led to the fall of the Kenyan Shilling.
In conclusion, safety and security is a critical aspect of the proper governance of any institution or nation as it undergirds the constitutional commitment to protect human life and respect for dignity. It must be emphasized that safety and security is not an isolated function and must be informed by economic, social, legal and environmental considerations. As much as safety and security requires different measures in the various spheres (i.e. individual, occupational, national and international) there is need for a greater collaboration in order to reflect these mutually supportive roles in protecting human life. Further, it is necessary to foster engagement on the county level, having regard to the diverse cultures and communities of the Kenyan people. Enforcing safety and security requires common action in the East African community and on the international front. As His Excellency the President of Kenya, Uhuru Kenyatta said[308], “Usalama unaanza na mimi, usalama unaanza na wewe” (translated as, ‘safety begins with me, safety begins with you’).
LESSON EIGHT
Communication
Introduction
Communication is the art of transmitting information, ideas and attitudes from one person to another.It is one of the most dominant and important activities in organisations.[309] Fundamentally, relationships grow out of communication, and the functioning and survival of organisations is based on effective relationships among individuals and groups. In addition, organisational capabilities are developed and enacted through “intensely social and communicative processes”[310]. Communication in organisations encompasses both formal and informal means, by which information is passed up, down, and across the network of managers and employees in a business[311].
1.1 History of Communication
The first means of communication was the human voice[312] but in 3,300 BC in Iraq, about 3,100 BC in Egypt and about 1,500 BC in China writing was invented. However the only American civilization that invented a proper system of writing was the Mayans. The alphabet was invented in what is now Israel and Lebanon about 1,600 BC.[313]In the Ancient World many civilizations including Egypt, Assyria, Persia, Rome and China had efficient postal systems to deliver messages to parts of their empires using relays of horses.[314]Papyrus and Parchments were the main form of paper that was used until the Chinese invented paper in about 200 BC. The Chinese invented printing with blocks in the 16th century AD but the first known printed book was the Diamond Sutra of 686.[315] In Europe in the mid-15th century Johannes Gutenberg invented the printing press,[316] which made books much cheaper and allowed newspapers to be invented. The first newspapers were printed in the 17th century[317] and during the same time the European monarchs set up postal services to carry their messages.[318] In France Louis XI founded one in 1477 and in England Henry VIII created the Royal Mail in 1512.[319]
In the early 19th century, postage evolved such that the recipient of a letter had to pay the postage, not the sender and in 1806, Ralph Wedgwood invented carbon paper. The telegraph was invented in 1837 and the first fax machine in 1843. A Scot, Graham Alexander Bell invented the telephone in 1876[320] however the first transatlantic telephone line opened in 1927.[321] In 1829 Louis Braille invented an embossed typeface for the blind[322] and in 1837 Isaac Pitman invented shorthand.[323]Radio broadcasting began in 1922 in Britain and the television was invented in 1925 by John Logie and high definition broadcasting in 1936. Commercial TV began in the USA in 1941. In 1960 the first communications satellite, Echo was launched. Dr. Martin Cooper made the first cell phone call in the USA in 1973 and smartphones were introduced in 1996.
Communication in the 21st Century - The original internet was invented in 1967 for military purposes. It evolved to include electronic mail (email) and the use of sites containing vital information (websites).[324] It is used for a variety of reasons including socializing, conducting research, and advertising. Internet has evolved to include social media and blogging.[325]
LEGAL FRAMEWORK
Communication in Kenya is governed by various Constitutional and Statutory provisions and various International Treaties and Conventions. At the National level the laws that govern communication include: The Constitution of Kenya 2010[326]; The Kenya Information and Communications Act, Chapter 411A; The Media Act, Chapter 411B; The Kenya Media Council Act, 2013; Books and Newspapers Act, Chapter 111;and Kenya Broadcasting Corporation Act, Chapter 221.These statutes function together with different regulations and guidelines such as Kenya Communications(Broadcasting) Regulations 2009, Kenya Communications (Electronic-Transactions) Regulations 2009, Kenya Communications Regulations 2001,Kenya Information and Communication (Tariff) Regulations 2010, Kenya Information and Communications (Fair Competition and Equality of Treatment) Regulations, 2010, among others.[327]
2.0 The Constitution of Kenya, 2010
The Constitution of Kenya, 2010 recognises the national language, official and other languages to be used in the country.[328] It further provides that the state should promote the development and use of indigenous languages, Kenyan sign language, Braille and communication formats and technologies accessible to persons with disabilities. The constitution further provides for freedom of the media,[329]access to information,[330] and freedom of expression[331] which greatly influence the communication systems in the country.
2.1 The Kenya Information and Communications (Amendment) Act, 2013
The Kenya Information and Communication (Amendment) Act, 2013 was enacted to give effect to Article 34 of the Constitution of Kenya (on freedom of the media). One of the most salient features of the Act is that it created the Communications Authority of Kenya to replace the Communications Commission of Kenya.[332]The Authority facilitates the development of the Information and Communications sectors including; broadcasting, multimedia, telecommunications, electronic commerce, postal and courier services.[333]
Its responsibility entails: Licensing all systems and services in the communications industry, including; telecommunications, postal, courier and broadcasting, Managing the country’s frequency spectrum and numbering resources, Facilitating the development of e-commerce, Managing competition within the sector to ensure a level playing ground for all players, and Regulating retail and wholesale tariffs for communications services among others.[334]
The Authority, where necessary, issues guidelines and regulations for the ICT sector on implementation of specific regulatory issues. The guidelines are issued after extensive deliberations with all stake holders in the sector. The Authority is also empowered to handle all complaints that are made against licensed communication service providers.[335] The communications authority is an affiliate of the International Telecommunication Unit (ITU)[336] which is the United Nations specialized agency for information and communication technologies whose role is to allocate global radio spectrum and satellite orbits, develop the technical standards that ensure networks and technologies seamlessly interconnect, and strive to improve access to ICTs to underserved communities worldwide.
2.2 Freedom of the Media
The Act recognizes Freedom of the Media as enshrined in Article 34 of the Constitution. It provides that the Authority shall be guided by the Constitution which guarantees the freedom and independence of the media and bars the state from exercising any control or interference with media as well as from penalizing any person for any opinion or for the content of any broadcast or publication.[337] The Act further provides that the Authority shall recognize the Freedom of Expression as set out in Article 33 of the Constitution.[338]
2.3 The Broadcasting Standards Committee (BSC)
The Act establishes the Broadcasting Standards Committee of the Authority whose responsibility is to set Broadcasting Standards. The Committee replaces the Broadcasting Content Advisory Council (BCAC). The BCAC’s responsibilities included the administration of broadcasting standards, enforcement of those standards and handling related complaints.
2.4 The Communication and Multimedia Appeals Tribunal (CMAT)
The enactment of this Act disbanded the Communications Appeals Tribunal and replaced it with the Communication and Multimedia Appeals Tribunal.[339] A person aggrieved by; any publication by or conduct of a journalist or media enterprise, anything done against a journalist or media enterprise that limits or interferes with the constitutional freedom of expression of such journalist or media enterprise, may make a written complaint to the Tribunal after which the Tribunal will notify the person complained against to respond to the Complaint in writing, upon which it may set a date for hearing the Complaint.
2.5 The Media Council Act, 2013
The Media Council Act 2013 gives effect to Article 34(5) of the Constitution. It establishes the Media Council of Kenya as the body that sets media standards and regulates and monitors compliance with those standards.[340]Article 34(5) of the Constitution which provides for Freedom of the Media states that: Parliament shall enact legislation that provides for the establishment of a body, which shall; be independent of control by government, political interests or commercial interests; reflect the interests of all sections of the society; and set media standards and regulate and monitor compliance with those standards. Under this Act journalists or the media should ensure that the freedom and independence of media is exercised in a manner that respects the rights and reputations of others. [341]
2.6 The Media Council of Kenya
The Media Council Act, 2013 established the Media Council of Kenya as the lead agency in the setting of media standards and ensuring compliance with those standards.[342] Its functions include among others to: Promote and protect the freedom and independence of the media, Prescribe standards of journalists, media practitioners and media enterprises, Promote and enhance ethical and professional standards amongst journalists and media enterprises, Develop and regulate ethical and disciplinary standards for journalists, media practitioners and media enterprises. Besides promoting and protecting freedom and independence of the media, the Council also works to promote ethical standards among journalists and in the media.[343]
ELEMENTS, CHANNELS AND TYPES OF COMMUNICATION
The basic elements of communication include; Sender, Receiver, Message, Medium and Feedback. The sender initiates the communication process. Once the message is sent out then the receiver must decode it. Decoding a message depends on the work environment as well as the value attached to it as far as the work situation is concerned. When the goal of the sender is the same as that of the receiver, then it makes it much easier for the message to be received.[344] The message is the encoded idea transmitted by the sender. The receiver is bound to be more attentive once they identify their goals codified within the message. The medium or channel used to convey a message is equally important. It can be oral, written or non-verbal.[345]Each medium has its own set of rules and regulations. Feedback is the most important component of communication as it signifies that effective communication has taken place. Errors and flaws that arise in business situations are largely owed to lack of feedback.
3.1 Communication Channels
Organisations, whether large, small or medium size always have systems and modes of how the reach to their employees, or how the employees get in touch with the management.[346]Some of the commonly used channels and modes include;
Print communication channels include inter alia; Memos, brochures, newsletters, reports, policy manuals, annual reports and posters. Print communication is much used in law firm and courts inform legal opinions, advocate to client letters, and internal memos among, court pleadings among other legal documents.[347]Electronic communication channels include among others; email and voice mail, intranets, blogs, podcasts, chat rooms, business television, video conferencing, instant messaging systems, and electronic. This mode is very relevant in the legal profession especially where advocates use emails to communicate to their clients and colleagues. Face- to- face channels of communication on the other hand include inter alia; speeches, focus groups, team meetings, social events, social events and gatherings[348]. Face-to-face communication is used by advocates especially inter alia; when interviewing clients and making oral submissions in court. Listening as a channel of communication is one of the most important communication channels used and consumes most of the time. The effectiveness of listening as a channel of communication relies heavily on effective listening skills. It is instrumental in ensuring learning, understanding, and conflict resolution.
3.2 Types of Communication
There are there major types of communications that will be discussed in this section. These are: Oral/Verbal Communication, Non Verbal Communication and Written Communication
3.2.1 Oral/verbal communication-This is where information is relayed to the receiver by word of mouth.[349]This covers among others, telephone calls, interviews, group meetings, staff meetings and formal presentations. The advantage of oral communication is that the information is speedily conveyed and feedback is automatically achieved. The message however can be distorted more easily.[350]
3.2.1 Written communication-This is where information is conveyed through writing. It relies heavily on clarity, conciseness and organisation of the author. Written communication is preferred to because it gives tangible information that can be verified. The disadvantage is that it is time consuming and lacks feedback.[351]
3.2.3 Non-verbal communication-this largely relates to behaviour rather than spoken or written communication.[352]The information sent via physical cues such as facial expression, eye movements, body language and posture, appearance, voice tone and gestures. Its advantages include, supporting other communications and providing observable expressions of emotions and feelings however, misperception of body language or gestures can influence receiver’s interpretation of message.
THE INFORMATION FLOW PROCESS
This basically involves how information flows at interpersonal, organisational and national levels.
4.0 Interpersonal Level
At this level information flows from individual to individual, face to face. The two communicators orient to each other as both subject and object. Different factors enable communication at this level. These include: Interpersonal trust-Interpersonal relationship is strengthened the moment accurate information is conveyed, adequately and timely feedback on decision is given, openness is experienced for example; where managers and supervisors freely exchange thoughts and ideas with their employees,[353]Technology- The rapid increase of this computer-mediated communication has resulted in more research that creates high awareness which helps in more efficiency and effectiveness.[354]Advantages of interpersonal communication include: the ability of managers to engage with their subordinates and this not only shows care for the organisation, but also care for their employees thus making employees motivated and satisfied at their jobs lessening communication barriers.
4.1 Organisational Level
There are two dynamic systems of communication in the organisational level. These include internal communication and external communication. In internal communication emphasis is laid in presenting and interpreting facts while in external communication emphasis is on promoting goodwill and future business.[355] Internal communication takes place within the company so it is between co-workers and here communication flows in several directions i.e. upward, downward and horizontal. External communication is communication flow outside the company. An example is when sales manager writes to customers and clients, to government agencies, to suppliers and distributer they are communicating externally.[356] External communication channels include letters, ads, brochures, websites, catalogues and reports. [357]
a) Downward communication-This is communication by top hierarchy with their subordinates. It is communication that includes orders, rules, information, policies and instructions. Its advantages include: Subordinates get useful timely information which helps them in their work performance, it offers efficiency as instructions and information come from the sources in power that are able to coordinate activities from the top of the organisation. Some disadvantages of this mode include: Information can become distorted as it proceeds through multiple levels of organisation hence feedback tends to be slow and interpretation issues may arise.[358]
b) Upward communication-This is communication from front-line employees to managers, supervisors and directors. It keeps employers aware of how employees feel about their jobs, policies and procedures. Some of the advantages of this process include: Managers can get feedback from employees and this helps improve organisational development. It brings mutual trust which draws employees and managers closer. However some disadvantages are: Filtering happens for example when there is a risk of punishment the bad parts will be removed and thus distorting information.
c) Horizontal communication-It is the transmission of information between people, divisions and departments with the same level of organisational hierarchy. Some of the advantages of horizontal communication include: It decreases misunderstanding between departments working on the same project, Increases motivation and job satisfaction and with this process implementation of top level decisions is improved because employees liaise with each other directly in implementation of the decisions made at the top. The disadvantages of this process include: Control is hard to maintain and it is time consuming if vertical communication is required to ratify decisions made during horizontal communication, in addition, lack of discipline may be experienced if strict procedural rules were not followed.
d) Grapevine communication-It is also known as informal communication because there is no definite route of communication for sharing information. Here communication passes a long way from one person leaving no indication from where it started and this may result into spread of rumours.
4.2 Communication at National Level
The official communication that connects the public and the government on legislative, judicial and executive matters is the Kenya Gazette. The Kenya Gazette - is an official publication of the government of the Republic of Kenya usually published every Friday, with occasional releases of special or supplementary editions within the week.[359] The role of the Kenya Gazette is to:[360]publish notices of new legislation, publish notices required to be published by law or police, and announce information for general public.
Office of the Government Spokesperson- the Office of Government Spokesperson seeks to effectively facilitate communication between the Government of Kenya, its citizens and global audiences. The main objective of this institution is to establish an efficient and proactive government communication system through research, training and information dissemination for good governance and positive image of Kenya.The office co-ordinates, plans and executes Government communication while improving the existing network in the Ministries.[361]In the event of any crisis or matter of urgency, the office of the President directs the Government spokesperson to make a press statement for the public, officially. This is to ensure that communication at the national level is seamless and without error as the information is disseminated to the public. The government also communicates with other states through its diplomatic and consular offices globally. In this regard there is reciprocity to ensure that they establish peaceful and harmonious relations with other states.
COMMUNICATION AND THE LEGAL PROFESSION
In the legal profession, communication is a vital tool. Advocates communicate with clients, negotiate and transact with other lawyers, litigate, mediate and arbitrate. It may be oral or written.
5.0 Relevance of Good Communication Skills for Lawyers
To communicate effectively it is necessary to understand your audience. Good communication skills are relevant to the advocate in the following ways:[362]
Ø An advocate ought to listen to their client and advise them in clear and realistic terms of the potential outcomes and potential costs associated with legal services. They also help the advocate understand both the facts and ideas their audience is advancing and are thus able to give better advice.
Ø They enable the advocate to effectively submit their case in court, coherently make their prayers and where written submissions are necessary prepare submissions that clearly outline their case and prayers.
Ø They make it easy for an advocate to establish an understanding with the client regarding future communication between them in addition to keeping the client informed on the progress of their case.
5.1 Challenges Faced By Advocates in Communication Process
a) Use of Legalese and the legal profession
Lawyers have very distinctive language which inculcates words from common everyday language which may have a different meaning in the law (e.g. consideration) and languages from different jurisdictions. This is referred to as legalese.[363]This may be a challenge to other parties who lack knowledge of the legal language[364] with respect to interpretation of what is being communicated.
b) Difficulties in identifying and resolving communication problems in practice
Many lawyers tend to assume that they communicate effectively to each other and even to their clients; hence they don’t keenly scrutinize their communication skills. Due to this assumption, they may not be aware of miscommunication between themselves and clients and this only manifests when the client leaves without any explanation.[365]
c) Lack of training on good communication skills
Training on good communication skills is not sufficiently embedded the legal education curriculum in some institutions and this leads to challenges in communication. It is therefore essential that advocates access such training later in life through vocational training and continuing educational courses.[366]
5.2 Advocate-Client Communication
Communication is fundamental in any advocate-client relationship. Regular communication with the client is advised as it enhances client’s overall confidence in the advocates advice and work and helps manage the client’s expectations.[367] The concept of advocate-client communication is often derived from the duties of an advocate to the client and some of these include: Duty to protect client’s interests and carry out his/her instructions by all proper means; This infers a responsibility on the advocate to consult with his client on all matters of doubt in relation to his instructions and to always keep the client informed on the progress of their matter.[368]Duty of care to the client; This duty is of a fiduciary nature[369]and envisages that can advocate should conduct themselves in a manner that any reasonable advocate would.[370]Duty to maintain confidentiality;[371]The Evidence Act, Laws of Kenya provides that communication between an advocate and his client is privileged. An advocate is prohibited by law from disclosing any communication between him and his client. There are some exceptions[372]but this must be within the scope of the lawyer’s professional work, made for the purpose or giving or receiving legal advice.[373]
EFFECTIVE COMMUNICATION
Effective communication involves sending accurate information and receiving feedback that the message conveyed has been received without distortion. It can be enhanced by: clarity of the message, use of appropriate language, observing the appropriate timing, active listening, asking questions, observing non-verbal actions or reactions and considering the type of audience one’s information is going to be conveyed to.[374] Effective communicate occurs when someone’s intended meaning successfully and accurately reaches the target person.[375]The test of determining that effective communication has taken place requires that the following characteristics be present: Clarity – the message must be clear to the recipient[376] using exact, appropriate and concrete words.[377]Conciseness– an effective message goes straight to the point, using the least possible words. Concise message are short and essential.[378] Most organisations use memos to communicate urgent and important messages to the staff[379]. Concrete – the words used should not be abstract or vague, but specific in meaning. This increases the probability of accurate understanding of the message by the recipient.[380]Correct – this translates to having no spelling or grammatical errors as well as correct punctuation and formatting[381].Coherent – the ideas reflected in a message need to flow. There must be a clear transition from one point to the next one making it easier for the recipient to understand what the sender intended to communicate and not to lose their train of thought.[382]Complete – the sender must ensure that they have included all the information they intended in the message, before they send it to the recipient.[383] This is important as it persuades the audience[384] and determines their ability to action on the message conveyed. Consideration – effective communication must take into account the back-ground, view-points, education levels of the audience among others. This implies “stepping into their shoes” to ensure their self-respect is maintained.
6.0 Barriers of Effective Communication
Communication barriers can be described as the cause of the loss and distortion of the information during the communication process[385] and may result in total failure of the communication or an undesirable effect. These include filtering, selective perception, information overload, emotions, language, silence, communication apprehension, gender differences and political correctness[386]
6.1 Barriers to Interpersonal Communication
These barriers involve the components of an individual’s communication competence and interpersonal dynamics between people who are involved in communication process.[387] These include:
Ø Language, Culture and Ethnicity whereby various people from diverse cultures possess their own languages and mannerisms. These may limit proper communication when they interact with other different cultures whose words and mannerisms would have different meanings from their own culture.
Ø Listening and Attitude - the effectiveness of communication will depend on the willingness of the receiver to listen keenly with this one’s attitude is essential as it establishes mutual feelings of trust and respect make communication effective.
Ø Medium and Noise - the means of communication used must be appropriate for the communication to be conveyed. Any disturbing sounds that may interfere with the communication process act as a barrier to effective communication.
Ø Pre-judgment – people’s own prejudices act as a barrier in accepting the facts put forth to them. The receiver of the message has a bias against the message or the conveyer before it is conveyed.
Ø Non-verbal signs such as hand gestures, nodding and facial expressions may interfere with the process of communication if they are not properly used. If over-used, they may distract the audience from what the speaker is saying.
6.2 Barriers at Organisational Level
In an organisation, barriers impede the carrying out of daily duties.[388] These are such as: The formal channels/systems of communication when there are many formalities and channels regarding the flow of information within the various departments in an organisation conveying of messages may be hindered if not properly used. Another barrier that may arise is unclarified assumptions; where the person putting forth the information fails to put in relevant details while communicating assuming that the receivers of the communication are already aware of it. In addition too much interpersonal communication between the listeners prevents the speaker from conveying his message as he is unable to establish a personal bond with the listeners. Difference in status may also be a barrier as it may for example affect the willingness of a junior official to communicate to a senior official and similarly senior officials may come off as too authoritative rather than polite and formal while communicating to the juniors, inspiring rebellion. Job Specialization where members specializing in particular departments may find it hard to communicate effectively with other members in the organisation from different departments and job descriptions.
6.2 Communication Barriers at National Level
Ø Language barrier - Although Kenya is bilingual with Swahili being the national language and English and Swahili being the official languages, many Kenyans lack a basic understanding of the two languages and are only familiar with their indigenous language therefore creating a communication barrier when interacting with people from different indigenous backgrounds.
Ø Limited transparency in communication - media freedom is sometimes undermined by the government while trying to convey certain stories to the public, therefore barring communication of key information to the people. This is less than ideal seeing as the third estate keeps a check on the state for abuse of power and other government excesses.
Ø Lack of link between the government and the grassroots - there is a lack of coherence between the government and the administrators at the grassroots level. The government may communicate essential policies or programmes that ought to be implemented however the administrators such as Chiefs, assistant chiefs who ought to act as the link between the government and locals often misconstrue the information, and even at times barely pass on the same to the locals. This may create a huge barrier and gap in communication at these levels.[389]
CONCLUSION
Communication has significant implications for individuals, organistaions, and the nation at large. Unfortunately, most of people and organisations do not maximize effective communication leading to significant organisational cost.Effective communication allows everyone to understand information and provides a more collaborative work environment.It is therefore very essential for companies, organisations and law firms to carry out a communication audit where they can assess : Which communication approaches are less impactful and could injure work relations and functionality and why, Which communication approaches have been discovered to be more efficient thus creating the anticipated outcomes and feedback and by understanding this, individuals and organisations have a better chance of improving communication mechanisms and strategies with the organisations and firms.
LESSON NINE
DISASTER MANAGEMENT
Introduction
Disasters have a direct bearing on the political, economic and social systems that govern humanity. The world over, disasters have disrupted many of the political, economic and social structures that have existed at different temporal and geographic spheres.
Disaster
Bolin defined it as “a crisis events in which the demands being placed on a human system by the event exceed the system’s capacity to respond.”[390] Closer home, disaste has been defined as a serious disruption of the functioning of a community or society causing widespread human, material, economic or environmental loses which exceed the ability of the affected community/society to cope using its own resources,[391]a definition echoed by Kimari and Mureithi.[392]
Key features of a disaster are: 1) disruption of the normalcy of a people’s way of life; and, 2) intense negative impact on their way of life.
1.1.2 Classification of Disasters
· Natural disasters which are caused by natural forces beyond human control/intervention for example tsunamis, floods, landslides etc.
· Manmade disasters which are caused by man’s activities or interferences for example bomb-blasts, wars, fires etc.
1.1.3 Disaster Management
Disaster management is the systematic process of using administrative directives, organisations, and operational skills and capabilities to implement strategies, policiesand improved coping capacities in order to lessen the adverse impacts of hazards and the possibility of disaster.[393]
1.1.4 Disaster Management Plan
This is a plan detailing disaster management mechanisms available to deal with or avoid disasters. With this plan the institution will have premeditated means of effecting an already established way of dealing with a disaster and preventing a future one.
1.2 Disaster Management
In dealing with disasters effectively, a three-prong approach may be necessary:
1.2.1 Pre-event Planning
This is where elaborate measures are rolled out to ensure that there are proper guidelines to deal with disasters as and when they occur. It encompasses preventive measures which are the steps necesary to ensure that disasters that can be avoided do not occur, for example, fencing off dangerous machinery, regular maintenace of all machinery and electronic devices, installing non-slippery floors, having proper drainage and proper disposal of hazardous material.
1.2.2 Mitigating Measures
Despite having an extensive plan set out to counter disasters, they may still occur. Where this happens, mitigating measures must be taken which include evacuation, fire-fighting and giving first aid. An institution, when hit by a disaster,in order of priorityshould: first, protect human life; second, minimize risk of injury; third, protect physical assets; fourth, minimize losses; and fifth, resume normal business operations. This ensures that the response chosen is reasonable and human life is valued over everything else.
1.2.3 Post-event Planning
Effective disaster management plan should cover the period beyond the occurrence of the disaster. In certain occassions, the aftermath of a disaster can be traumatic on the employees. Some of the employees or all of them may actually suffer physical harm or lose valuables in the incident.The institution should have in place general support services as well as specific services. If a disaster occurs and employees are affected, the institution should take steps to help employees with recovery.
26.0 1.3 The Law on Disaster Management in Kenya
In Kenya, the law on disaster management is fragmented and uncoordinated. The corpus of law dealing with occupational safety and health and by extension disaster management in Kenya is contained in several specialist statutes, secondary statutory instruments and administrative regulations depending on the particular aspect of disaster management. Case law has further adapted these rules and principles to the special requirements of disaster management practice.
With the advent of devolution, the Constitution of Kenya 2010 provides that disaster management is a function of the County Governments.[394] Consequently, through the County Governments Act, county governments have been mandated to, among other functions, provide for disaster management.[395] Further, the Natural Disaster Relief Act, 1982has provisions that gave local authorities the mandate to provide disaster mitigation even though it did not directly mention disaster management.
Indirectly providing for disaster management are specialist statutes. The Environmental Management and Co-ordination Act of 1999 is one such. In establishing an appropriate legal and institutional framework for the management of the environment, it is inferred that in case of an environmental disaster like a forest fire, relevant provisions on the same come to play. Likewise, the Occupational Safety and Health Act requires employers to have emergency action plans in a wide variety of situations and communicate the plans to employees. It also provides for the formation of Safety Committees by the Occupier of every factory or work place mandatory and such Committees are responsible for all health and safety issues of enterprises including undertaking safety audits. Further, the Factory Act makes provision for the health, safety and welfare of persons employed in factories and other places of work. It focuses on the shop floor conditions of the factory, safety devices, machine maintenance, and safety precautions in case of fire, gas explosions, electrical faults, and provisions of protective equipments.[396]An employee who suffers injury in the course of employment has recourse under the Work Injury Benefits Act in terms of compensation to employees for work related injuries and diseases contracted in the course of their employment and for other connected purposes.[397]
We also have statutory bodies playing a vital role in disaster management. Of importance to note is the Kenya Red Cross Society, a disaster response and management institution under the Kenya Red Cross society Act. The National Environment Management Authority (NEMA) is also established to regulate and ensure environmental best practices are adhered to.
Perhaps the most comprehensive provisions of law are found in the National Policy on Disaster Management and the National Disaster Response Plan.
International Legal instrument such as the Universal Declaration of Human Rights emphasize that everyone is entitled to the right to safe and healthy working conditions.
In summary, disasters may happen and consequently disaster management is critical, therefore there’s need to integrate it in the policy and guidelines of the modern day workplace. This would ensure safety, health and security of employees which would inevitably translate into a productive and thriving workforce. Whereas the government has moved towards establishing an institutional, policy and legal framework to effectively manage disaster risk and preparedness, is this enough? Perhaps time is nigh, as Bushell and Wekesa quoted, to“…start questioning why a country like Ethiopia has had a DDR(Disaster Risk Reduction) policy since 1974 and is now about to pass a second one, whereas Kenya has been waiting for one since 2002.[398]
LESSON TEN
DISCRIMINATION & SEXUAL HARASSMENT
1. INTRODUCTION
The Black’s Law Dictionary[399] defines discrimination as the unfair treatment or denial of normal privileges to persons because of their race, age, sex, religion, opinion or nationality. It further defines it as a failure to treat all persons equally where no reasonable distinction can be found between those favoured and those not favoured.
26.1 DIRECT AND INDIRECT DISCRIMINATION
There are two forms of discrimination that are recognized by various statues that is; direct and indirect discrimination. Direct discrimination is the treatment of a person less favorably than others in similar circumstances[400]. In R v Birmingham CC ex p EOC,[401] Lord Goff stated that direct discrimination occurs where an individual is denied an opportunity or a choice that is available to another individual in similar circumstances. In that case the House of Lords held that denying girls admission to grammar schools but admitting boys amounted to direct discrimination against girls. This was irrespective of whether or not grammar schools are better than other schools.
Unlike direct discrimination, indirect discrimination is not overt and can be sometimes unintentional. Indirect discrimination occurs when a particular criterion, practice or norm which disadvantages particular class of persons unless it can be objectively justified.
An objective justification allows employers to set requirements that are directly or directly discriminatory. One however needs to remember that different treatment will only be possible exceptionally good reason and one will need to show that it is a proportionate means of achieving a legitimate aim.[402]
By proportionate we mean that an employer must show that whatever he or she is doing, must actually contribute to a legitimate aim, for example if your aim is to facilitate the recruitment and retention of employees then one ought to have evidence that the provision or criterion introduced is actually doing so. The discriminatory effect should be significantly outweighed by the importance and benefits of the legitimate aim and one should have no reasonable alternative to the action they are taking. Where the legitimate aim can be achieved by less or non-discriminatory means, then these must take precedence.
A legitimate aim might include economic factors such as economic factors such as business needs and efficiency. For instance the procurement process[403] in public institutions can be indirectly discriminatory against the youth. The tendering process usually requires a supplier to have previously supplied public institutions with goods or services at least three times. This requirement excludes young entrepreneurs particularly those who are setting up their businesses for the first time.
The English Employment Appeal Tribunal in Watches of Switzerland v Savell[404] held that recruitment and promotion processes that were systematically unfavorable to women, persons whose ethnic origin was outside the UK and other classes of individuals were illegal for being indirectly discriminatory. In David Wanjau Muhoro v OlPejeta Ranching Limited[405] Justice Rika characterized indirect discrimination as discrimination that is unrecognized and un-combated.
A legitimate aim must correspond with a real need of the employer and the test of objective justification is not an easy one and it will be necessary to provide evidence if challenged
26.2 POSITIVE AND NEGATIVE DISCRIMINATION
There are however positive and negative facets to discrimination in general. On the one hand negative discrimination is unfavorable to a certain class of persons on various grounds. For instance an advertisement for a job that reads “librarians wanted, women need not apply” can be said to be negatively discriminating against women by actively excluding them.
Positive discrimination on the other hand is the treatment of a class of individuals more favorably than others in similar circumstances for the purposes of redressing previous disadvantages[406]. It has also been referred to as affirmative action. This practice has been adopted in Kenya with regard to women under Article 27 (8) of the Constitution which sets out the two thirds gender rule. The rule seeks to ensure that women actively participate in the governance process in Kenya due to the fact that they had been under represented in the past.
In Mary Wangui Gakunju v City Council of Nairobi[407] Justice Nduma held that positive discrimination in favor of disabled persons is a universally recognized principle that is intended to facilitate affirmative action to that class of persons who are disadvantaged by their disability.
Fairness at work and good job performance go hand in hand thus tackling discrimination helps attract, motivate, retain staff and enhance your reputation as an employer. This therefore, paper interrogates the law on discrimination and particularly within the context of human resource management. The first section deals with the legal framework governing discrimination in Kenya. The second part then deals with the various grounds of discrimination and how the law protects against them with regard to human resource management. Finally, the paper makes recommendations on not only how to redress discrimination in that context but also how to prevent it.
2. THE LEGAL AND POLICY FRAMEWORK ON DISCRIMINATION IN KENYA
26.2.1 INTERNATIONAL LAW
Kenya has ratified international and regional treaties that seek to ensure protection from discrimination including those that focus on employment and labour relations. These include:
26.2.2 UNITED NATIONS TREATIES
a) Universal Declaration of Human Rights[408]. Article 1 provides that all human beings are born free and equal in dignity and rights. Article 2 on any grounds. Further, Article 23(2) provides that everyone, without any discrimination, has the right to equal pay for equal work.
b) Article 26International Covenant on Civil and Political Rights[409]
c) Article 7 Covenant on Economic, Social and Cultural Rights (1966)[410]
d) International Convention on the Elimination of All Forms of Racial Discrimination (1965)[411]. Article 5 prohibits discrimination including in the context of the employment relationship.[412]
e) Convention on the Elimination of All Forms of Discrimination against Women (1979)[413]. Article 11 provides for freedom from discrimination of women in all social spheres including employment.
f) Convention on the Rights of Persons with Disabilities (2006)[414]. Article 27 prohibits all forms of discrimination against persons with disabilities.
26.2.3 INTERNATIONAL LABOR ORGANIZATION (ILO) TREATIES ON DISCRIMINATION
Kenya has adopted a number of key ILO Conventions prohibiting discrimination in employment, including;
a) The Equal Remuneration Convention 1951 (C100)[415]. Article 1 of the Convention provides that the term equal remuneration for men and women workers for work of equal value refers to the rates of remuneration.
b) The Discrimination (Employment and Occupation) Convention, 1958[416]. Article 1 of the Convention provides that the term discrimination includes any distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.
26.2.4 REGIONAL TREATIES
Further, Kenya has adopted several conventions under the auspices of the African Union (AU) including;
a) AU African Youth Charter (2006)[417]
b) Protocol on the Rights of Women in Africa (2005)
c) Protocol on the Establishment of an African Court on Human and People’s Rights (1997)
d) African Charter on Human and Peoples’ Rights (1981)
e) AU Cultural Charter for Africa (1976)
It is important to note that until 2010, Kenya had to a dualist legal system with respect to international conventions and treaties.[418] With the current constitutional dispensation, however, any treaty or convention which is duly ratified shall form part of the law of Kenya.[419] As such, international and regional instruments which provide protection from discrimination are part of Kenyan law.
26.3 NATIONAL LAW
26.3.1 THE CONSTITUTION OF KENYA, 2010
The Constitution seeks to ensure equality and freedom from discrimination for all through various provisions as follows;
a) The preamble to the Constitution which lists equality as one of six essential values upon which governance should be based.
b) Article 10 which provides that human dignity, equity, social justice, inclusiveness, equality, non-discrimination and protection of the marginalised among the national values and principles of governance that are to be used in applying and interpreting the Constitution and other laws, and in making or implementing policy decisions.
c) Article 20(4) (a) which provides that equality and equity are values to be promoted in interpreting the Bill of Rights.
d) Article 21(3) that creates a duty on state actors to address the needs of vulnerable groups in society.
e) Article 27 provides for the right to equality and freedom from discrimination and substantially expands the scope of the freedom from discrimination compared to the previous Constitution Article 27 states that:
1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.
2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).
6) To give full effect to the realisation of the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to re- dress any disadvantage suffered by individuals or groups because of past discrimination.
7) Any measure taken under clause (6) shall adequately provide for any benefits to be on the basis of genuine need.
8) In addition to the measures contemplated in clause (6), the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.
Notably, the list does not include either sexual orientation or gender identity as grounds of discrimination, issues that are the subject of heated debate in a country where homosexual conduct remains illegal[420]. It is however clear that the grounds listed in Article 27 are inclusive rather than exhaustive.[421] Article 27 does not establish a test for the inclusion of new grounds as has been developed in South African anti-discrimination legislation[422]and established as best practice in the Declaration of Principles on Equality.[423]It remains to be seen how progressively the Courts will interpret the provision.
f) Article 33 that provides for the freedom of expression. Clause (2) and (3) sets out some limitations for the freedom of expression.
g) Articles 55 which provides for specific rights for youth. Article 260 defines youth as those between the ages of 18 and 35. This Article provides a range of specific rights for access to employment for youth
h) Article 54 focuses on the rights of persons with disability.[424]
i) Articles 22 and 23 regulate procedural aspects of instituting a claim under the Bill of Rights. Article 22(1) provides that every person has the right to institute court proceedings claiming that their rights under the Bill of Rights have been denied, violated, infringed or threatened.
26.3.2 PERSONS WITH DISABILITIES ACT[425]
Section 15(1) of the Act prohibits discrimination against all persons with disabilities at all stages of the employment process, that is; recruitment, selection, induction and socialization of employees.
26.3.3 THE NATIONAL COHESION AND INTEGRATION ACT[426]
The Act’s definition of discrimination under Section 3 is broad. In the context of human resource management however, Section 7 prohibits discrimination in employment, both during recruitment (in respect of the recruitment process, the terms of employment and the appointment process) and in the course of employment (in respect of the terms of employment, opportunities for promotion, transfer, training or other benefits, and dismissal).
The provision also prohibits harassment by an employer, or an employer’s representative, of employees and those applying for employment. In addition, the section creates a duty on all public organizations to ensure representation of Kenya’s diversity and to employ no more than one third of staff from the same ethnic community.
26.3.4 THE HIV AND AIDS PREVENTION AND CONTROL ACT (2006)
Section 31(1) of the Act prohibits denial of access to employment, transfer, denial of promotion or termination of employment based on HIV status, though this is limited by Section 31(2) which states that the prohibition shall not apply “where an employer can prove that the requirements of the employment in question are that a person be in a particular state of health or medical or clinical condition”.
26.3.5 THE SEXUAL OFFENCES ACT (2006)[427]
Section 23 of the Act creates an offence of sexual harassment which occurs when any person in a position of authority or holding a public office persistently makes sexual advances or requests which he or she knows or ought reasonably to know, are unwelcome, punishable by imprisonment of not less than three years and/or a fine of not less than one hundred thousand shillings.
This is particularly pertinent with respect to employers and managers as they are in a position of authority over employees.
26.3.6 THE EMPLOYMENT ACT (2007)[428]
Section 5(3) of the Act prohibits discrimination on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, mental status or HIV status.
The Act covers both direct and indirect discrimination and harassment, though no definitions are provided for these forms of conduct. In line with the rest of the Act which governs all forms of employment, discrimination is prohibited in both public and private sector employment. The prohibition on discrimination applies to all aspects of employment including recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of the employment.
The Act provides a number of exceptions to the protection against discrimination in employment. Section 5(4) provides an occupational requirement exception, which stipulates that it does not constitute discrimination to distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.
26.4 POLICY FRAMEWORK
There are a number of policies on non discrimination that have been developed and adopted by the government. These include:-
26.4.1 KENYA VISION 2030[429]
Vision 2030 provides a long-term development blueprint for Kenya.[430] However, it provides only limited recognition of the importance of non-discrimination and racial harmony in Kenya’s near future. Sections 5.6 and 5.7 are of particular relevance in efforts to promote protection from discrimination, dealing respectively with “Gender, Youth and Vulnerable Groups”.
26.4.2 NATIONAL POLICY ON GENDER AND DEVELOPMENT
The National Policy on Gender and Development was published in 2000.[431] It has a number of general objectives[432] including regarding non-discrimination including:-
a) To enhance measures that guarantee equity and fairness in access to employment opportunities, in both formal and informal sectors
b) To develop and improve vocational and technical skills of disadvantaged groups, notably unemployed youth, disabled women, poor urban and rural women, and street dwellers, for improved access to employment opportunities
26.4.3 PUBLIC SECTOR WORKPLACE POLICY ON HIV AND AIDS[433]
This puts in place a national policy that defines an institutional framework and intensifies intervention measures for the prevention, management, control and mitigation of impact of HIV and AIDS.[434]
3. GROUNDS FOR DISCRIMINATION
26.5 RACE
Racial discrimination is defined in International Law as any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
In the context of employment, Racial Discrimination may be defined as treating an employee unfairly based on race, color or ethnicity. This can affect any aspect of employment, including hiring, firing, promotions, benefits, compensation and the general work environment.[435]
Section 5(3) of the Employment Act prohibits discrimination with regard to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
A person who suffers racial discrimination in the context of the employment relationship is entitled to seek redress from the courts under Articles 22 and 23 of the Constitution. It matters not if the person is applying for a job, is an apprentice or a trainee on probation, works part-time or full-time, or if a casual or permanent employee. Employers have a legal responsibility to take all reasonable steps to prevent racial discrimination in the work place through establishment and implementation of policies and programs to achieve this.
In the case of David Wanjua Muhoro v OlPejeta Ranching Limited[436] one of the issues in dispute was wage inequality based on racial discrimination. During his employment with the Respondent, the Claimant was subjected to unlawful discrimination based on his colour. White Managerial Staff, holding similar responsibilities to the Claimant and other Black Managers, were paid disproportionately higher salaries. The court found that indeed the Claimant was discriminated against by the Respondent, on account of his race and paid an unequal pay for equal work, or work of equal value. He was awarded damages.
In Charles Muthama V Wananchi Group (K) Limited[437] the claimant claimed to have been subjected to cruel degrading and inhumane treatment and was constantly abused and humiliated by one of the respondents’ director Richard Bell who is a white Kenyan. The mistreatment was discriminatory and boarded on racism. Richard Bell threatened the complainant with a gun. When this incident was reported rather than dealing with the issue, the respondents chose to end the complainants’ contract of employment. The dispute in this case was mainly unfair dismissal. The court found that indeed Mr. Muthama was unfairly dismissed.
In Dr. Samson Gwer and 5 Others vs Kenya Medical Research Institute & 3 Others[438] the Petitioners alleged that while working for the programme which is run in partnership with the University of Oxford, UK, they were passed over for promotions and grants. When the doctors raised their concerns with the institution, their research was suspended. The doctors claimed that they were given changed ambiguous and inferior terms for return to the institution. KEMRI denied all the allegations logged against it.[439] The court sided with the Petitioners and ordered the Respondents to compensate each doctor with Kshs. 5,000,000.00. KEMRI was found liable for unfair labour practices.
26.6 HEALTH STATUS AND DISABILITY
26.6.1 DISABILITY
Section 2 of the Persons with Disabilities Act defines discrimination against persons with disabilities as ‘to accord different treatment to different persons solely or mainly as a result of their disabilities and includes using words, gestures or caricatures that demean, scandalize or embarrass a person with a disability.’
The Constitution of Kenya expressly prohibits discrimination either directly or indirectly against any person on the basis of their disability.[440] The rights of Persons with Disability are clearly provided for under Article 54 and they include the right to be ‘treated with dignity and respect and to be addressed and referred to in a manner that is not demeaning.’[441]
Section 12(1) of the Persons with Disabilities Act provides that, no person can deny a qualified person with a disability access to opportunities for suitable employment. Any qualified employee with a disability, like all other able-bodied employees, is subject to the terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances.[442]
Section 15(1) of the Act prohibits discrimination by both public and private employers in all areas of employment including advertisements, recruitment, placement, promotion, demotion, remuneration, benefits, training, advancement, apprentice- ships, transfer or retrenchment. The provision also requires employers to make reasonable accommodation for persons with disabilities through the provision of facilities and modifications.
In addition, Section 13 requires that the (NCPD) endeavor to reserve five percent of all casual, emergency and contractual positions in employment in the public and private sectors for persons with disabilities. These measures reflect favorably on the state’s adherence to its obligations under (CRPD) to promote the employment of persons with disabilities in the private sector and to employ persons with disabilities in the public sector. Finally, the Act provides for the right to recover damages in any court of competent jurisdiction with respect to discrimination in employment.
In Northern Nomadic Disabled Person’s Organization (Nondo) v Governor County Government of Garissa& Another[443]the Petitioner’s case was that the First Respondents appointment of the Garissa County Executive Committee was not only unfair but it was also unconstitutional. In dismissing the case, the Judge stated, amongst other things, that the Petitioner had not proved that any of its members had applied for the said posts or any of its qualified members had not been considered. This therefore means that qualified persons with disability must apply for employment for them to be considered.
Relating this statement to Human Resource Management in organizations, the same should, when recruiting, include persons with disabilities and ensure any such qualified persons are selected. This therefore means that qualified persons with disability should not be discriminated against. For example, if a blind person has all the requisite qualifications needed in a specific job specification, the same should be recruited and given the auxiliary aids required for him to work efficiently as any other person would have worked.
There should be suitable provisions for persons with disabilities in the work place environment to ensure their proper and smooth induction and socialization in to the organization or company. The suitable conditions include making reasonable alterations or adjustments to the physical features of the organization. These may include widening doorways to allow a wheelchair to pass through easily or replacing steps with ramps.
26.6.2 HEALTH STATUS
The Constitution of Kenya under Article 27 expressly prohibits discrimination either directly or indirectly against any person on the basis of their health status. There are several cases of discrimination on grounds of health status particularly with regard to persons with HIV/AIDS. There is a policy in place which deals with HIV and AIDS at the Public Sector workplace.
Public Sector Workplace Policy on HIV and AIDS[444]
This policy provides as follows:
a) All employees have the same rights and obligations as stipulated in the terms and conditions of service.
b) No employee or job applicant shall be discriminated against in access to or continued employment, training, promotion and employee benefits on the basis of their actual or perceived HIV status.
c) Employees shall not refuse to work or interact with fellow colleagues on the grounds that the latter are infected or perceived to be infected. Such refusal shall constitute misconduct.
In VMK v Catholic University of Eastern Africa[445], the Claimant who was working for the Respondent, was discriminated against, denied fair and equal employment terms and conditions and terminated from her employment due to her HIV status amongst other reasons. The Court opined that an employee or prospective employee may not be medically unfit merely by virtue of having been infected by HIV.[446] It found that the Respondent’s actions constituted gross affront on the Claimant’s human dignity contrary to Article 28 of the constitution.
From the foregoing, no employee should be discriminated against because of their health status, and in particular because of their HIV status either at the recruitment, selection, induction stages or at the socialization stages. The Human Resource Management in each organization should put in place policies that ensure no employee treats another in an undignified or discriminatory way because of their health status. A good example is the Council of Legal Education’s HIV/AIDS policy at Kenya School of Law[447], which provides for reasonable accommodation for the infected staff which includes, inter alia, flexible working hours, time off for counseling and medical appointments and extended sick leave.
All employees should be accorded fair and equal terms and conditions of employment irrespective of their health status. In addition, the employers should not disclose their employees’ health status to the other employees to avoid any form of discrimination in the organization.
26.7 MARITAL STATUS AND PREGNANCY
26.7.1 MARITAL STATUS
Marital status discrimination typically involves discrimination based on assumed characteristics of people who are married, single, or divorced-that is people who all share the same marital status.[448]
Marital status means whether a person is single, married, remarried, divorced, separated, or a surviving spouse and, in employment cases, includes protection against discrimination on the basis of identity, situation, actions, or beliefs of a spouse or former spouse.[449]
This occurs when the employer treats the employee less favorably because of their marital status compared to other employees who are not married. Marital status discrimination can affect both male and female employees. The discrimination can be indirect or direct.It could be direct discrimination if a single person, who has the same experience and qualifications as the married person, is promoted instead of the married person simply because he/she is single.
Indirect discrimination on the other hand occurs where certain working practices, provisions or criteria which apply to all employees, place some employees at a particular disadvantage compared to other workers because of their marital status.
The United Nations Convention, 1979emphasizes the steps the government should take to ‘prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work.’ These measures include: protection from dismissal on the grounds of pregnancy, maternity leave, or marital status.[450]
Organizations should be careful not to discriminate on marital status grounds when they are recruiting or promoting their employees. Recruitment should be solely based on the qualifications of the applicants and the talents they will be bring to the organization. Promotion of employees should be based on their performance levels in the organization and the training they have gone through to be able to fill and work as expected in the position they are being promoted to.
26.7.2 PREGNANCY
Discrimination on the grounds of pregnancy can be defined as treating a woman (an applicant or employee) unfavorably because of pregnancy, child birth or a medical condition related to pregnancy or childbirth.[451]
This typically occurs when a female employee loses her job or is treated differently by her employer or colleagues at work simply because she is pregnant. It also relates to maternity leave where a pregnant female employee may be denied maternity leave or the employer may withhold her pay during the maternity leave period or fire her upon returning to work from maternity leave.
According to an International Labor Organization Report titled, Maternity Protection: Not Just a Personal Issue, in Kenya, some women were forced to sign agreements promising that they will not become pregnant.[452]
Section 29 of the Employment Act grants female employees the right to three months maternity leave. The Employment Act further specifies that no employer shall discriminate directly or indirectly, against an employee or prospective employee or harass an employee on the grounds of pregnancy.[453]
The state is obligated under ILO Convention 183 to adopt measures to protect the health of pregnant and breastfeeding women at work. It includes provisions concerning the entitlement to maternity leave and benefits. Member States are also explicitly required to ensure that maternity does not become a source of discrimination in employment, including access to employment and protection against dismissal.[454]
However, there are cases where there is positive discrimination in relation to pregnancy. This mostly happens where the job to be done includes hard labor or chemicals whose fumes may be harmful to the baby.
To avoid cases of discrimination on grounds of pregnancy, an organization should use the human resource planning process to identify the current and future human resources needs for an organization to achieve its goals. An organization should use forecasting and anticipating activities. An organization which employs women should be able to put in place plans that they will put to use if one of its women employees got pregnant. The other employees in the organization should be trained to step in place in case one of the women employees in a senior position in the needed to take a maternity leave. Human resource planning helps to avoid discrimination cases in an organization and ensures that the work flow goes on as normal.
In VMK v Catholic University of Eastern Africa (CUEA)[455], it was discrimination at the work place case on the basis of gender, pregnancy and HIV status. The claimant had been an employee of the respondent since the year 2000 when she joined as a casual employee in the position of a telephone operator and was earning Kshs. 7000 as basic pay without benefits. There were two male employees in the same position employed on permanent and pensionable terms. In 2003, the claimant responded to an internal job advertisement, was shortlisted, interviewed and was recommended for appointment and invited to discuss the new terms of her service but her hopes were dashed when the respondent received the results of an HIV test, done without the knowledge, consent or authority of the claimant. The respondent kept her on short and progressively shorter contracts with unequal terms due to her HIV status; refusing her paid maternity leave followed by an immediate termination of employment upon return from the unpaid maternity leave.
The court held that the respondent had discriminated against the claimant on the basis of gender, HIV status and pregnancy. The respondent unlawfully withheld the salary for the claimant whilst she was on maternity leave, the court was persuaded to find the respondent violated the express provision of Section 29 of the Employment Act, 2007 which provides that a female employee is entitled to 3 months paid maternity leave and on expiry of the leave she has the right to return to the job which she held immediately prior to maternity leave. The claimant was awarded exemplary damages.
In DMV versus Bank of Africa Kenya Limited, the claimant sought damages for termination of employment on grounds of pregnancy. The claimant was initially employed by the Respondent Bank as a Relations Officer. She rose through the ranks, becoming a Manager.
She was pregnant with her first child and proceeded on maternity leave in 2009. Sometime in August/September 2010, the Respondent learnt the Claimant was expecting a second child and was informed by the Managing Director that her services were no longer required. The court held that the termination of her service was based on her pregnancy and therefore discriminatory, unfair, unlawful, and in violation of the Employment Act 2007, the Contract of Employment, and the Constitution of Kenya 2010.
26.8 GENDER/SEX
Discrimination on the grounds of gender/sex is treating individuals differently in their employment specifically because an individual is male or female.
There are examples of instances of potentially unlawful sex/gender discrimination that women for instance face:
a) Hiring/firing/promotion – where women apply for a job for which you have experience and excellent qualifications, but you are not hired because some of the company’s long time clients are more comfortable dealing with men.
b) Benefits – where a company’s health insurance policy does not cover a woman’s spouse, because it is assumed that he will have his own benefits, while your male co-workers have their wives covered by the policy.
Protection against discrimination in the workplace is consequently a fundamental principle of labour law. Pursuant to Article 2 (1) of the Constitution of Kenya 2010, the Constitution is enshrined as the supreme law of the land and is binding on all persons including sate organs. Further Articles 27 (1), (3) and (5) are to the effect that every person is equal before the law; has the right to equal protection and benefit from the law and that all persons must enjoy the right to equality and freedom from any form of discrimination. Article 27 (4) specifically prohibits discrimination on the grounds of sex and gender.
Section 5(3) of the Employment Act 2007 makes sex discrimination unlawful in employment, training and related matters. There are three kinds of discrimination on the ground of sex pursuant to section 5 (3) of the Employment Act, they include: direct discrimination, indirect discrimination and victimization.
In Jane Wairimu Macharia v Mugo Waweru and Associates[456]the courts held that the employers conduct was discriminatory under section 46 of the Employment Act 2007. In addition, the court affirmed that every female employee has a right to a three month maternity leave beside the annual leave enjoyed by all other employees. Failure of an employer to comply with this statutory period amounts to a direct discrimination against female employees.
In Sidhu v Aero Space Composite technology Ltd 2005, the Court of Appeal in England stated that to find direct discrimination the complainant must show that he has been treated less favourably than a person who does not possess his protected characteristics and that the reason for the differential treatment is the complainant’s protected characteristic. One act is enough and as a general rule the motive behind the action is irrelevant and there is no defence once a direct discrimination has been proved.
Similarly in British Airways PLC v Starmer 2005, the court held the British Airways liable for indirect discrimination against their female pilot by denying her the right to work 50 per cent of a full-time contract after returning from maternity leave. The Employment Tribunal found for the claimant holding that British Airways has failed to provide sufficient objective justification for its provision, criterion or practice.
Victimization is the act of subjecting a person to a detriment because they have done a protected act and they include bringing an act under the Employment Act 2007. In Sisley v Britannia Systems 1983 where a man applied for a job in a security control situation which only employed women, it was held that it was reasonable in the circumstances given to refuse to employ a man for reasons of decency. A claim of indirect discrimination will be defeated if the employer can show that the provision, criterion or practice was justified irrespective of the sex of the worker.
Lastly, there are various remedies that victims of sex/gender discrimination can recover, their three main remedies that the court may award to the complainants:
a) An order declaring the complainants rights
b) Financial compensation includes, back pay, front pay, compensatory damages, punitive damages
c) A recommendation of action to be taken by the respondents-employer to reduce the adverse effects of the discrimination.
Other remedies that a complainant may get include: Hiring, Promotion and Reinstatement
26.9 RELIGION, BELIEF AND CONSCIENCE
Religion has been defined as an organized system of beliefs, systems and rules used for worshipping a deity. Belief may be said to be a feeling that something is right; good or valuable. Conscience is the sense of morality or blameworthiness with regard to one’s conduct or character together with the obligation to be right or good.
The concepts of religion and belief are intertwined and have been given a variety of interpretations in various jurisdictions. The European Court of Human Rights has held in Kokkinakis v Greece[457] that in applying Article 9 of the European Convention on Human Rights- which provides for the freedom of thought, conscience and belief- it will take into account both religious and non-religious beliefs[458]. Freedom of conscience is closely related to the concepts of religion and belief and is often referred to together with them. Conscience is commonly interpreted to include convictions that are not centered on the metaphysical[459].
The need to protect individuals from discrimination on grounds of religion, belief and conscience from discrimination can be attributed to the fact that these are invariably diverse and have been the source of conflict throughout the world. There are several examples of discrimination on grounds of religion, belief and conscience spanning through history. The Spanish Inquisition, for instance, saw thousands non-Catholics persecuted by the Spanish monarchy for holding different religious views. In 1672, England had a statute[460] that prevented Anglicans from holding military or public office as they were deemed to be enemies of the Catholic monarchy. In the seventeenth century the Puritans in New England persecuted those who did not subscribe to the teachings of the Church of England[461].
Freedom from discrimination-on grounds of religion, belief and conscience-is a universally recognized basic tenet of law the world over. There are several international conventions that seek to ensure that their signatories protect their citizens from discrimination on those grounds. These provisions of international law form part of the law of Kenya by virtue of Article 2 (5) and (6) of the Constitution of Kenya, 2010. They include:
1) Article 2 of the Universal Declaration of Human Rights.
2) Article 2 of the African Charter on Human and Peoples Rights.
3) Article 2 of the Discrimination (Employment and Occupation) Convention 1958[462]- made under the auspices of the International Labour Organization[463].
The Constitution further guarantees the freedom from discrimination within the Bill of Rights. Article 27(4) provides that the State shall not discriminate directly or indirectly on any ground including religion, conscience, and belief[464]. Although the provision refers to the State[465], it should be read together with Article 20(1) which provides that the Bill of Rights applies to all law and binds all state organs and all persons. This means that Article 27(1) applies both vertically and horizontally and that the requirement not to discriminate is imposed on both the State and private individuals.
The three judge High Court bench in Rose Wangui Mambo v Limuru Country Club[466] held at paragraph 68 that “it cannot be safe, in a progressive democratic society, to arrive at a finding that allows private entities to hide behind the cloak of ‘privacy’ to escape constitutional accountability.” The Court went on to hold that to private entities could not be allowed to violate fundamental freedoms enshrined in the Constitution as this would be contrary to the intention of the framers of the Constitution and that to do so would not be practical as it would deny Kenyans the protection the Constitution sought to provide.
In the context of Legal Practice Management- and in particular Human Resource Management, the question of discrimination often arises in the employer/employee relationship. The law seeks to ensure that the employer/employee relationship is free from any form of discrimination- including on grounds of religion, conscience or belief. In addition to Article 27(4) of the Constitution, Section 5(3) of the Employment Act, 2007[467] provides that no employer shall discriminate directly or indirectly against an employee or prospective employee on grounds of religion, inter alia.
The courts have also held that the employment relationship must be protected from any forms of discrimination including on the grounds of religion, belief and conscience. In Robert Mboya Nyaringo v Kenya Forest Service & Another[468] Justice Ongaya held that the failure of the respondent employer to consider the claimant employee’s request to be excluded from training and working on Saturday; a holy day in his faith amounted to discrimination on religious grounds. The Court held that this was unconstitutional and ordered the respondent to facilitate the claimant’s training taking into account his religious beliefs and practices.
So important is the issue of discrimination that in Alfred Nyungu Kimungui v Bomas of Kenya[469] Justice Rika held that the Employment Act places a burden on the employer to satisfy the court that termination of an employee was procedurally fair. There are however certain grounds of termination, such as religious discrimination which automatically constitute unfair termination.
The law seeks to ensure that employees are not discriminated against on account of their religion, belief or conscience. This has an impact on the Human Resource Management Policies that are adopted by various organizations in order to ensure compliance with the law.
One of the processes that would be affected is the Job Analysis Process[470]. In order to ensure that employees are not discriminated against on grounds of religion, belief or conscience, an organization may have to factor in religion when carrying out job analysis. For instance, where a job analysis leads to a job description that requires work on Saturday, then this may be indicated in the job specifications when advertising the position. The alternative would be to make other arrangements for persons who regard it as a holy day on which they cannot work[471].
An example of where this would be relevant is the defense forces where female members are required to be in uniform comprising of trousers. For some women this may be a violation of their religion, belief or conscience. If it is however set out in the job specifications then they are made aware beforehand and can choose not to join the defense forces[472].In the private sector, this would be relevant to airlines employing airhostesses. Due to the nature of their job, they are required to dress in an “attractive” manner. This may go against some religious beliefs and should be stated in the job specifications prior to selection in order to eliminate the possibility of discrimination by giving potential applicants notice.
The Selection Process[473] in the Human Resource Management of an organization may also be affected by the laws guaranteeing the freedom of religion, belief and conscience. The position of Kadhi in the Kadhi’s Court as established by Section 4(1) of the Kadhi’s Court Act[474] pursuant to Article 170(5) of the Constitution can only be filled by a person who professes the Muslim faith as set out in Article 170(2) (a). Thus in selecting the best candidate for that particular job the Judicial Service Commission has to be satisfied, inter alia, that the candidate professes the Muslim faith.
The Socialization Process[475] may also be affected by laws against discrimination. It is common practice particularly among some small to mid-sized organizations to conduct communal religious prayers at the work place. In order to ensure that new employees who do not hold the same religious beliefs as the majority in the organization fit into the organization, neutrality should be maintained. This is easily achieved by not conducting any religious ceremonies at the work place and ensuring that no particular religious belief receives preferential treatment from the organization. Alternatively, the organization could provide prayer rooms where employees can conduct prayers separately in private. The Court of Appeal has along this line, held that all religions should be treated equally in all circumstances.[476]
Therefore, in order to successfully and effectively carry out Human Resource Management, an organization has to ensure that it eliminates all forms of negative discrimination on the basis of religion, belief or conscience. This would not only ensure compliance with the laws in force in that respect but would also facilitate the effective participation of the employees in achieving the organization’s goals.
There is need for a national policy for the prevention of discrimination in employment. This policy should be applied by means of Human Resource Management, legislative measures, collective agreements between representative employers' and workers' organizations. This however should have regard to the following principles:
a) promotion of equal opportunities and treatment in employment is a matter of public concern;
b) enjoyment equal of treatment in respect of all human resource management practices including recruitment; placement; induction and promotion;
c) remuneration for work of equal value;
d) conditions of work including hours of work, rest periods, annual holidays with pay, occupational safety and occupational health measures, as well as social security measures and welfare facilities and benefits provided in connection with employment.
The Government should apply non-discriminatory employment policies in all their activities as it is mandated to do by the Constitution. In the private sector, employers generally should adopt policies that not only redress all forms of discrimination but also seek to actively prevent it. This can be achieved in the following ways:
i. in collective negotiations and industrial relations the parties should respect the principle of equality of opportunity and treatment in employment and occupation, and should ensure that collective agreements contain no provisions of a discriminatory character in respect of access to, training for, advancement in or retention of employment or in respect of the terms and conditions of employment;
ii. Employers' and workers' organizations should not practice or countenance discrimination in respect of admission, retention of membership or participation in their affairs.
Overall both public and private organizations should seek to ensure that their policies and practices eliminate and prevent all forms of discrimination in order to be in compliance with the law.
27.0
28.0
29.0
30.0
SEXUAL HARASSMENT
2.0 Introduction to Sexual Harassment
Over the years, cases of employee abuse at the workplace have been on the increase, ignoring the concept of equality and respect of the freedoms that should be enjoyed by employees. One such area of concern has been that workers do not enjoy freedom over their bodies. Submission to or rejection of sexual advances, could affect one’s individual employment status.[477]However, the Constitution of Kenya 2010 has rejuvenated the promotion of freedoms and equality. This is especially true for workers and laborers in Kenya,[478]where mandatory legal provisions must now be incorporated into the workplace policies in order to eliminate sexual harassment.
Following is a discourse on sexual harassment at the workplace, existing laws, and recommendations on how to curb this unethical, yet widespread act.
31.0 2.1 Sexual Harassment
Sexual harassment can be defined as unwelcome sexual advances, requests for sexual favours, and other verbal or physical conduct of a sexual nature that tends to create a hostile or offensive work environment.[479]
Internationally, the Convention on the Elimination of Discrimination Against Women (CEDAW) discusses sexual harassment under Recommendation 19 as including such unwelcome sexually determined behavior as physical contact and advances, sexually coloured remarks, showing pornography and sexual demand, whether by words or actions. The UNHCR’s Policy on Harassment, Sexual Harassment and Abuse of Authority[480]defines sexual harassment to include:
“Any unwelcome sexual advance, request for sexual favor, verbal or physical conduct or gesture of a sexual nature, or any other behavior of a sexual nature that might reasonably be expected or be perceived to cause offence or humiliation to another. Sexual harassment may occur when it interferes with work, is made a condition of employment or creates an intimidating, hostile or offensive environment. It can include a one-off incident or a series of incidents. Sexual harassment may be deliberate, unsolicited and coercive. Both male and female colleagues can either be the victim or offender. Sexual harassment may also occur outside the workplace and/or outside working hours.”
Section 23(1) of the Sexual Offences Act, 2006 defines sexual harassment as: Any person, who being in a position of authority, or holding a public office, who persistently makes any sexual advances or requests which he or she knows, or has reasonable grounds to know, are unwelcome, is guilty of the offence of sexual harassment and shall be liable to imprisonment for a term of not less than three years or to a fine of not less than one hundred thousand shillings or to both. More comprehensively, section 6 of the Employment Act, 2007provides that an employee is sexually harassed if the employer of that employee or a representative of that employer or a co-worker directly or indirectly requests that employee for sexual intercourse, sexual contact or any other form of sexual activity that contains an implied or express form of sexual harassment.
2.1.2 Forms of Sexual Harassment
32.0 2.1.2.1 Quid pro quo Sexual Harassment
It involves a person in authority, such as a supervisor, demanding for sexual favours from his subordinate, as a condition for getting or keeping a job.[481]It occurs when:
(i) Submission to sexual conduct is implicitly or explicitly, a term of employment,
(ii) Submission to or rejection of the conduct is a factor in deciding the victim’s employment.[482]
A tangible employment action must result from a refusal to submit to the supervisor’s advances.[483] This includes a change in position, benefits or even job loss.[484] In Barnes v Costle,[485]the Environmental Protection Agency abolished Ms. Barnes position as a direct result of her refusal to engage in sexual relations with her male supervisor. The court found that the behavior of the male supervisor was a clear example of quid pro quo.
Section 6 of the Employment Act expressly outlaws quid pro quo sexual harassment.[486]In P O v B L H & another,[487]the plaintiff claimed that the second respondent had made sexual innuendos to her while they were on a work-related trip to in South Africa. When she did not respond to him, the respondent got angry and punched her with fists. On their return to Kenya, the respondent terminated the plaintiff’s contract of employment. The respondent was found liable and was ordered to compensate the plaintiff.
Essentially, in a claim of quid pro quo, the complainant must show that the actions were of a sexual nature, and would affect their terms of employment.
2.1.2.2 Sexual Harassment causing Hostile Work Environment
Itdoes not affect the economic benefits of a worker, but creates an offensive working environment.[488] A hostile work environment arises where a co-worker or supervisor, engages in unwelcome or inappropriate sexual behaviors, thus rendering the workplace hostile and interfering with an individual’s work performance.[489] In Bundy v Jackson, the court characterized a hostile environment as posing a dilemma, as the employee has three options: (i) to endure the harassment, (ii)to oppose it and likely worsen the situation, or(iii)to leave the place of employment. The court held that such conduct has the purpose of unreasonably interfering with an individual’s work performance and creating an intimidating environment.[490]
According to Jenni Slaughter, in order to prove a hostile work environment,[491] the following factors are considered:
· The Harassment must be severe
The action must be so severe, such as to cause an abusive work environment and interfere with an individual’s performance.[492] The court examines the totality of the case to determine severity.
· The Harassment must create a substantial interference
The employee does not have to suffer actual psychological injury. Even a single act of sexual harassment could create a hostile work environment. It did not need to be psychologically injurious In Harris v Forklift Systems,[493]the US Supreme court stated that courts need not focus their inquiry on psychological harm, as this would force employees to submit to discriminatory behavior, until they were completely broken by it. Thus, an employee must show that sexual harassment is often, but does not have to prove psychological harm.
· ‘Reasonable Woman’ test to be applied
The Courts have adopted the ‘reasonable woman’ test in deciding the issue of sexual harassment. This is because, a reasonable person test, would risk discrimination, as that test would be male-biased.[494] In Robinson v Jacksonville Shipyards,[495]the trial judge applied the ‘reasonable woman’ test to determine if the work environment was abusive to women. He held that an environment full of nude and partially nude women, posted in the workplace, and sexually demeaning jokes by male workers was abusive. The totality of the circumstances would lead a woman to these conclusions. In Faragher v City of Boca Raton,[496]the court stated that when an employer maintains a steady course of sexually based comments, the employer’s behavior would be objectively perceived as creating an abusive environment for the employee.
33.0 2.1.2.3 Same-Sex Sexual Harassment
Ordinarily, sexual harassment is associated with a heterosexual employee, making unwelcome sexual advances to another heterosexual employee, of the opposite gender.[497] However, recently, according to West’s Encyclopedia of American Law, there have been instances where a homosexual employee harasses an employee, of the same sex. Scholars have raised the question: Can a heterosexual employee, sexually harass another heterosexual employee of the same gender? The courts have stated that same-sex sexual harassment is prohibited, regardless of the sexual orientation of the parties. The United Nations Secretary-General’s Bulletinon Prohibition of Discrimination, Harassment, including Sexual Harassment and Abuse of Authority[498]in defining sexual harassment included: Sexual harassment may occur between persons of the opposite or same sex. Both male and females can either be victims or the offenders.”
The case of Oncale v Sundower Offshore Services Inc.[499]involved same-sex sexual harassment. Joseph Onscale, the complainant, worked for Sundowner Offshore Services Inc. on an oil platform in the Gulf of Mexico from August to November 1991. Onscale’s supervisor and co-workers forcibly subjected Onscale to humiliating sex-related actions in the presence of the rest of the crew. He quit, and subsequently sued. The trial court ruled against Onscale, stating that the prohibition against sexual harassment did not include same-sex sexual harassment, even harassment as blatant as Onscale’s supervisor actions. The Supreme Court, through Justice Scalia, reversed the lower court’s decision and in a strongly-worded opinion, complained of the lack of common sense demonstrated by the lower court that had excluded same-sex claims. The Supreme Court concluded that the law prohibited same-sex sexual harassment, even when the harasser and the target of the harassment are of the same sex.[500]
Similarly,In the case of Melnychenko v 84 Lumber Company,[501]Leonid Melnychenko and two other employees at a Massachusetts lumberyard were subjected to humiliating verbal and physical conduct by Richard Raab and two other employees. Raab loudly demanded sexual favours from the men. The Supreme Court concluded:
Same-sex sexual harassment is prohibited under the law, regardless of sexual orientation of the parties. Raab’s behavior constituted sexual harassment because it interfered with the three plaintiff’s work performance by creating an intimidating, hostile, humiliating and sexually offensive work environment. Raab’s sexual orientation did not excuse the conduct. The unwelcome sexual advances and requests for sexual favours were more than lewd horseplay and raunchy talk. They constituted sexual harassment.[502]
34.0 2.4 Case study
35.0 2.5 Case Study I– United Nations High Commission on Refugees (UNHCR)
UNHCR has a policy to curb sexual harassment in the workplace engraved in the UNHCR Policy on Harassment, Sexual Harassment, and Abuse of Authority.[503]Their detailed policy against sexual harassment involves the following aspects:
· Prevention
Staff members must:
(i) Respect colleagues and maintain the highest standards of respect at the workplace,[504]
(ii) Maintaining a harmonious relationship with colleagues, by behaving in a manner free of hostility, intimidation or any form of harassment, including sexual harassment,[505]
(iii) Familiarize with the UNHCR Policy on Sexual Harassment.
Failure of a colleague to observe the Policy provisions and enforce established standards of conduct, will lead to disciplinary action.
The roles of supervisors of the UNHCR include the following:
(i) Act as role models and uphold the highest standards of behavior, to promote a harassment-free environment,[506]
(ii) Communicate UNHCR’s policy statement on sexual harassment to all staff members, and provide guidance on prevention and dealing with arising incidents on sexual harassment,[507]
(iii) Ensure cases of sexual harassment are promptly and adequately addressed. Supervisors should ensure impartiality at all times.[508]
Managers have a duty to communicate and address the issue of harassment. Failure to do so may lead to administrative or disciplinary action.
· Dispute Resolution Process
Staff members may solve complaints[509] of sexual harassment by either formal or informal steps. The informal process allows parties to solve the complaint in an open, honest, non-threatening manner. It may involve:
(i) Approaching the alleged offender. An individual may not be aware that he is being offensive, and is asked to cease the offensive behavior.[510]
(ii) Involving a third party. A neutral party may be invited to the discussions. The party has to be neutral and has to be aware of the UNHCR policy statement on sexual harassment.[511]
(iii) Involving the Mediator. In complex scenarios, the Mediator, who is the UNHCR Senior Official, is invited to mediate on a strictly confidential basis.[512] Where the alleged offence occurred, the Mediator advises the victim of procedure instituting a formal complaint.
In the formal process, a victim files a formal complaint with the Inspector General’s Office. Investigations are conducted. The offender faces disciplinary action and criminal proceedings may be instituted against him/her under the Sexual Offences Act.
36.0 2.6 Case Study II: Unilever Kericho Tea Plantation
There have been numerous cases of sexual harassment at the Unilever Kericho Tea Plantation.[513] The company has taken a defensive, rather than a proactive approach to the allegations.[514] Unilever Kericho Tea Plantation employs around 15,000 workers.[515] Our research revealed that there are no structures to prevent sexual harassment or to address incidents of sexual harassment. In 2010, an organization called Centre for Research on Multinational Corporations revealed that Unilever had poor work policies.[516] It further revealed sexual coercion acts and forced pregnancy tests were going on at the tea plantation.[517] The Kenya Human Rights Commission[518]in its report of 2010, A Comparative Study of the Tea Sector in Kenya: A case study of large scale tea estates, described sexual harassment as “rampant” and embedded in a culture of corruption and impunity. When KHRC investigators spoke with Unilever’s management about the issue, the management stated that while they did receive many reported cases of harassment and coercion, their own investigations found that most of these accusations were unfounded cases of “spurious malice.”[519]Contrary to the Unilever’s management view on sexual harassment, The Kenya Human Rights Commission as well as the Centre for Research on Multinational Corporationsgave reports showing that coerced sex was a tool used by the management in hiring, job allocation and threats of firing.
Since Kenya is a signatory to the ILO Conventions to promote labor laws and health and safety of workers, the Government should take strict measures against Unilever Tea Kenya.
37.0 2.5 Conclusion and Recommendations
With the Constitution of Kenya, the Sexual Offences Act of 2006, Public Officer Ethics Act, Employment Act and international principles on sexual offences, accountability of employers in the workplace, to prevent such acts should improve. The management of an organization has to cooperate fully with its workers to ensure an environment free of sexual offences, for both gender laborers. Employers ought to write policies and sexual harassment should be included as an agenda in Collective Bargaining Agreements.[520]
From our research, it is obvious that the UNHCR has an effective policy statement to curb sexual harassment. However, Unilever Tea Kenya has no standard policy to prevent and address the offence.
Recommendations
· Employers should be formulate sexual harassment policies for their organizations. They should educate employees on the policy.
· Staff members should familiarize themselves with policy against sexual harassment.
· Proper investigations should be carried out in cases of sexual harassment.
· In dispute resolution, the mediating party between the offender and victim should observe neutrality and impartiality.
· Disciplinary action should be taken against the offending employee.
HUMAN RESOURCE MANAGEMENT
INTRODUCTION
1.0 Background
Human Resource Planning is the process through which management determines how the organization should move from a current manpower arrangement to a more desired arrangement. It helps management to have the right number and the right kind of employees, at the right place at the right time, performing actions which result in long-term benefits to both the individual and the organization.[521]
In order to gain competitive advantage through human resources, the organization must know the strength and weaknesses of its existing employees and its future needs in light of strategy.[522] HRP basically combines three important activities namely identifying and acquiring the right number of people with the proper skills, motivating them to achieve high performance, and creating interactive links between business objectives and people planning activities.[523]
1.1 Human Resource Planning and Manpower Planning
Human resource planning is indeed concerned with broader issues about the employment of people than the traditional quantitative approaches of manpower planning. Such approaches, as derive from a rational top-down view of planning in which well tested quantitative techniques are applied to long term assessments of supply and demand. There has been a shift from reconciling numbers of employees available with predictable stable jobs, towards a greater concern with skills, their development and deployment.[524]
1.2 History of Human Resource Planning
In the 20th century focus in manpower planning was upon the hourly production worker. During the Second World War and the post war years, the focus intensified on employee productivity. New technologies and interests in behavioural aspects of work also added complexities to the manpower planning task.
In the 1960’s the demand for high talent personnel increased due to high Technology programmes, rapid corporate expansion and diversification. Man power planning practices were focused on balancing supply with demand. It was viewed as a system linking the organization with its environment.[525]
The 70s came with new legislation, court decisions and governmental regulations. Management attention then turned to affirmative action planning and other aspects of compliance.[526] It was during this time that manpower planning was broadly being termed “human resource” planning.[527]
During the 80s and early 90s, human resource management researchers and professionals tended to place greater emphasis on employee attitudes and on the development of personnel strategies to search for the enhancement of positive employee feelings and commitment.[528] In 90s it was anticipated that the HRP function would underline the importance and crucial role of dealing with the necessary changes in volume and make-up of the workforce.[529] There was a wide range of tasks designed to ensure that the appropriate number of the right people are in the right place in the right time.
1.3 Objectives of Human Resource Planning
To attract and retain an accurate number of people required with the appropriate skills, expertise and competencies; Ensuring optimum utilization and proper use of human resources available in an organization at a particular time; Assessing or forecasting the futureneeds of human resources in an organization with different levels of skills; Anticipating the impact of technology on jobs and requirements for human resources; Giving the feedback in the form of employee data which can be used in decision-making in promotional opportunities to be made available for the organization; Providing adequate lead time to select and train the required additional human resource over a specified time period; Developing a well-trained and flexible workforce, thus contributing to the organization’s ability to adapt to an uncertain and changing environment.[530]
1.4 Need for Human Resource Planning
Technological changes and globalization has ushered in extensive and rapid change in the methods of production and distribution of products and services due to changes in the organization structure and design we need to plan the required human resources right from the beginning. . There is need for special skills that are rare and scarce. Non-availability of skilled people when needed is thus a factor which prompts sound Human Resource Planning. Human Resource Planning is essential in the face of marked rise in labour turnover which is unavoidable and even beneficial. There is an acute shortage for a variety of skills which emphasizes on the need for more effective recruitment and employee retention
1.5 Importance of Human Resource Planning
HRP helps in defining the number of personnel as well as kind of personnel required to satisfy its needs thus ensuring the reservoir of desired human resources when required.
It is useful in offsetting uncertainties and changes as far as possible and ensures availability of HR of the right kind, at right time and at right place.
HRP results in reduced labour costs as it helps in counter balancing the problem of shortages and/or surpluses of manpower in the organization.
It helps to execute future plans of the organization regarding expansion, diversification and modernization. It ensures that people of desired skills and knowledge are available to handle the challenging job requirements.
HRP helps in anticipating and controlling the cost aspects of human resources i.e. salaries, benefits and all other costs of human resources
PROCESSES OF HUMAN RESOURCE PLANNING
1 Analyzing Organizational Objectives
The HRP process is largely based on the organizational objectives and the strategic plan. The organizational objectives may be based on factors such as expansion, efficient and effective resource allocation, capital/ labour intensive production, increased performance in terms of sales and marketing and profit etc. The organizational objectives guide the human resource planning process which must be aligned accordingly so as to achieve the objectives.[531]
It is important to reflect on the mode of filling vacancies, the selection procedures and the provisions for training of staff.[532]
2 Inventory of Present Human Resources
This is important to assess the current HR capacity of the organization. The basic analysis should classify employees by function or department, occupation, level of skill, location and status. The aim is to identify ‘resource centers’ consisting of broadly homogenous groups from which forecasts of supply and demand can be made. From the updated human resource information storage (HRIS) system, the current number of employees, their capacity, performance and potential can be analyzed to fill the various job requirements, the internal sources and external sources. Inventory is important because it assists in determining the specific role that each employee would fill in short term and long term.
3 Forecasting Demand of Human Resource
Demand forecasting is the process of determining future needs for HR in terms of quantity and quality. The human resources required at different positions according to their job profile are to be estimated and the available internal and external sources to fulfill those requirements are also measured. There should also be proper matching of job description and job specification of one particular work, and the profile of the person should be suitable to it.
A variety of organizational factors, both long range and short range can influence the process of demand forecasting. Long range factors encompass forecasts of 2-5 years or more and factors that are considered include the organizations long-range business plans. Short range factors to be considered include affirmative action plans, competitive strategy, relocation/ plant closings and production schedules/ budgets.[533]
4 Forecasting Supply of Human Resource
It is concerned with the estimation of supply of manpower given the analysis of current resource, estimated future availability and sources of human resource likely to be available within and outside the organization. It involves planning for procurement: who, from where, how and when of recruitment. It scans the internal and external environment for the best-fit candidate for the positions in question. Thus, there are two sources of supply- internal and external. Internal source includes promotion, transfer, job enlargement and enrichment, whereas external source includes recruitment of fresh candidates who are capable of performing well in the organization. [534]
5 Estimating Manpower Gaps (Matching Demand and Supply)
It is concerned with bringing the forecast of future demand and supply of HR. It is the bringing of demand and supplies in an equilibrium position so that shortages and over staffing position will be solved. In case of shortages an organization has to hire more required number of employees. Conversely, in the case of over staffing it has to reduce the level of existing employment.
There is also the balancing of demand and supply gap in which the closer the gap there is, the better for the company when it goes into procuring. There is equally a need to manage oversupply through; hiring freeze; early retirement offers; job sharing; use of part-time workers and internal transfers.[535]
6 Formulating the Human Resource Action Plan
This is the stage concerned with surplus and shortages of human resource. Under it, the HR plan is executed through the designation of different HR activities. The major activities which are required to execute the HR plan are recruitment, selection, placement, training and development, socialization etc. The plan may be finalized either for new recruitment, training, interdepartmental transfer in case of deficit of termination, or voluntary retirement schemes and redeployment in case of surplus.
7 Monitoring, Control and Feedback
It mainly involves implementation of the human resource action plan. The plan is monitored strictly to identify the deficiencies and remove it. Comparison between the human resource plan and its actual implementation is done to ensure the appropriate action and the availability of the required number of employees for various jobs.
LEGAL FRAMEWORK FOR COMPLIANCE IN HRM
Introduction
There are a myriad of National and international laws that impact on Human resource planning. These laws cover a wide range of employment practices ranging from recruitment, dismissal, compensation, occupational safety, placement, induction, career development among others.
1. NATIONAL LAWS
The Constitution of Kenya, 2010
The Constitution is the supreme law of the land and it is the most important piece of Human resource planning legislation.
Article 27 provides for equality and freedom from discrimination, by stating that every person is equal before the law and thus has the right to equal protection of the law. This article can be interpreted further to include equality and non-discrimination of employees in relation to remuneration. An organization should take this in account when planning for its human resource to ensure issues of discrimination are addressed, this can be effected by formulating an equality and non-discrimination policy.
Article 41 provides for Labour relations and it is to the effect that every person has a right to fair labour practices, fair remuneration, and reasonable working conditions, to form, join or participate in the activities and programmes of a trade union and to go on strike.
Chapter six of the constitution provides for leadership and integrity, Article 73 (2) thereof provides for the guiding principles of leadership and integrity. It states that a state officer shall be selected on the basis of personal integrity, competence and impartiality, or election in free and fair elections by ensuring that decisions are not influenced by nepotism, favoritism and other improper motives or corrupt practices. This was tested in the case of Trusted Society of Human Rights Alliance vs Mumo Matemu.[536] This is an important principle when planning for human resource in state offices as it ensures that those elected and/or appointed have not only qualified but it also ensures that the whole process is free and fair hence increasing productivity.
Eligibility for election and appointment is covered under Article 75 which states that only Kenyan citizens are eligible and those elected or appointed as state officers must take and subscribe the oath or affirmation before assuming, acting in or performing any functions. [537] This ensures that only those with relevant skills apply for relevant jobs hence promoting competence in public offices.
Article 237 of the Constitution provides for the Teachers Service Commission which shall manage the payroll of teachers in its employment; facilitate career progression and professional development for teachers in the teaching service including the appointment of head teachers and principals; monitor the conduct and performance of teachers in the teaching service[538].
2. The Leadership and Integrity Act[539]
Section 10[540]requires that state officers should maintain high standards of performance and level of professionalism within the organisation and if the State officer is a member of a professional body, observe and subscribe to the ethical and professional requirements of that body.
3. Public Service Commission Act[541]
Section 13 (3) [542]provides that the committees may deal with matters relating to the recruitment, promotion, terms and conditions of service, discipline of public officers and such other matters as the Commission may specify which are core components of HRP.
4. The Employment Act, No.1 of 2007
This is an important piece of legislation governing human resource planning in Kenya. It strengthens minimum terms and conditions of employment by stipulating the duties and rights of employers and employees, which includes among others the right to a written contract and rights in relation to contract termination. The HR function should therefore take these into consideration devising its policies.
Under section 5(4), an employer shall pay his employees equal remuneration for work of equal value. This was illustrated in the case of VMK Vs CUEA[543], where court held that the conduct of the Respondent grossly violated Article 27 of the Constitution and in particular her right to equal benefit of the law and equal enjoyment of all rights was grossly violated by the discriminative conduct of the respondent in spite of specific provisions of the labour laws that guaranteed the claimant specific rights and equality at the workplace.
5. Labour Institutions Act[544]
The Act sets the minimum wages payable to employees. The wage rates are determined by Wage Boards constituted in accordance with the Act.
This Act helps HR planners in any organization in determination of recruitment rates of their employees to avoid unnecessary lawsuit which will injure the growth of the organization instead of aiming at maximizing profits.
7. The Work Injury Benefits Act
The Actseeks to provide for compensation to employees for work related injuries and diseases contracted in the course of their employment and for other connected purposes. Part III of Work Injury Benefits Act entitles an employee who is involved in
an accident resulting into his/her disablement to the benefits provided for under this Act.
The above provision clearly shows that this Act plays an important role in HRP by ensuring that every Organization plans for compensation of their employees resulting from accidents during the course of employment. It helps the organization to plan earlier on how employees can be compensated than being taken by surprise.
8. The Labour Relations Act, 2007
The Act offers encouragement of effective collective bargaining and promotion of orderly and expeditious dispute settlement, conducive to social justice and economic development and for connected purposes. Therefore choosing the right association improves proper labour relations between the employer and employees hence improving the productivity of the organization and its overall performance.
9. Occupational Safety and Health Act, No.15 of 2007
TheAct provides for the health, safety and welfare of persons employed, and all persons lawfully present at workplaces and related matters. Employer must ensure safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances[545]. Human resource planners in any organisation has an obligation of ensuring training and supervision of inexperienced workers before they begin working to minimise risks of danger a rising from working environment.
10. INTERNATIONAL LABOUR CONVENTIONS
By dint of Article 2(5) and 2(6) of the constitution of Kenya 2010, the general rules of international law and any treaty or convention ratified shall form part of the law of Kenya. Kenya has ratified certain international labour conventions which are thus deemed to be part of Kenyan law as discussed hereunder.
i. Convention No. 29 on Forced Labour Convention and Convention No. 105 on the Abolition of Forced Labour .
Kenya ratified both conventions in 1964. By virtue of this ratification and by enactment of the Employment Act[546] human resource planners must ensure that they have policies that curb against forced labour hence ensuring effectiveness and maximum productivity.
ii. ILO Convention No. 100 on Equal Remuneration
Kenya ratified this convention on 7th May 2001. Under the ILO convention on equal remuneration men and women are to receive equal remuneration for work of equal value. This was in incorporated in the constitution of Kenya 2010 [547] and section 5(5) of the Employment Act[548] . In planning for human resource organizations are required to formulate policies on equal remuneration.
iii. Convention No. 111 on Discrimination (Employment and Occupation).
Kenya ratified this convention on 7th May 2001.Discrimination based on race, colour, sex ,religion, political opinion ,nationality not permitted is outlawed by the convention, this was adopted by Article 27 of the constitution of Kenya 2010 and section 5(i-iv) of the Employment Act which prohibits direct and indirect discrimination. In planning for human resource therefore organizations are required to formulate policies non-discrimination.
iv. The Convention on the Elimination of All Forms of Discrimination against Women[549]
It requires that state parties should take all appropriate measures to eliminate discrimination against women in the field of employment on the grounds of pregnancy or marital status.[550]
CHALLENGES FACING HUMAN RESOURCE PLANNING
There are various uncertainties like labour turn over, absenteeism, seasonal employment, market fluctuation and changes in technology renders HRP ineffective.
There are always difficulties when it comes to integrating human resource plans with organizational plans. Therefore it is necessary to develop good communication channels between the organization planners and human resource planners.
Many HR plans fail because of an over complicated initial effort. Successful HRP programs start slowly and gradually expand, as the program is successful.
Sometimes organizations assume that people are available in abundance in our labour surplus economy and therefore they do not see the need of spending time and money in forecasting in HRP.
An organization may find it difficult to fill vacant positions called for by human resource planners. These are issues to do with mismatch between applicants’ skills and jobs. This might be because there is more demand in the organization than there is in available talent in the job market or the recruiting strategies of an organization are not attracting the right talent.
EMMERGING ISSUES IN HRM/HRP
The constitution of Kenya 2010 has devolved power and resources including human resources to the grassroots. This has helped Kenyans to reap the equitable distribution of resources across the country and management of governance and public service to smallest units of the counties and timely and efficient delivery of public services such as health care, education and infrastructure.
The advent of information, communication and technology has impacted on human resource planning at both public and private organizations. Some organizations, such as the judiciary have embraced the use of ICT by issuing cause list online and typing court proceedings this has ensured that human resource planning is efficient and effective
In conclusion, planning is essential for organizational effectiveness and efficiency because it acquires best human resources, focuses on corporate goal, utilizes human resources, develops human resources, reduces uncertainty and labour cost, regularizes production, maintains good industrial relation, keeps records, and controls human resources.
Human resource planning must be linked with the organizational strategic plan as this is the only way to make human resource planning effective since it aims at not just ensuring that people are in the right place, at the right time and in the right number, but that they are also ready to adapt appropriately to different activities for future manpower needs. It is therefore never late for changes in the modus operandi of organization hence Human resource planning which is a never ending process that utilizes matching human resources to its demand and supply for effectiveness and efficiency in achieving the overall organization goals should be an essential component of the organization. In a nutshell, every organization should align its human resource planning practices with the overall organizational goals.
JOB ANALYSIS AND JOB DESIGN
Introduction
Jobs are at the core of every organization’s productivity. If not well designed and rightly done, there is less productivity and the organisation makes losses and thus unable to meet the demands of society, customers, employees, and other stakeholders.[551]
A job is defined as a logically related group of work, functions, activities and duties which can be performed (everyday)[552] by a single employee or by several qualified employees.[553]
Given that Human Resource Management focuses on enhanced optimum performance, it is paramount that jobs are well designed and executed correctly. Before formulation and development of a job design and making of other informed decisions that relate to among other things, recruitment, there is need for collection and analysis of data.
Definition of Job Analysis
There is no one universal definition of job analysis. Variant definitions abound; some general and some specific to the various aspects or steps of a job analysis.
Raghubar Jha,[554] defines job analysis according to the various steps of job analysis which he identifies. He defines job analysis to involve the steps of: collecting and recording job information; checking the job information for accuracy; writing job description based on information collected to determine the skills, knowledge, abilities and activities required; and updating and upgrading this information.[555]
Joan E. Pynes defines it as the technique used to acquire the necessary data for making of informed decisions,[556] or ‘a process to identify and determine in detail the particular job duties and requirements and the relative importance of these duties for a given job’.[557]
Nature of Job Analysis
Job analysis is an integral part of HR planning;[558] it sits at the heart of all human resource practices and thus critical in every organization.[559] Job analysis has always been, and will continue to be in the foreseeable future, a valuable informational tool in (strategic) human resource management.[560] It consists of job description and job specification.[561]
Traditional job analysis focuses on the collection of work-related information for the job as it currently exists and/or it has existed in the past.[562] The analysis considers among others, the machinery and equipment required in the job, job behaviours required and the working conditions.
Underlying Assumptions /Principles of Job Analysis
The traditional job analysis is founded on assumptions also referred to by some the principles of job analysis. These assumptions or principles are fundamental in ensuring the achievement the goals of job analysis.
According to Helen Palmer and Will Valet[563] these underlying assumptions include: ‘simplified and predetermined job responsibilities; static jobs with stable knowledge, skills and ability (KSA) requirements; scarce competition and large market share; an adversarial approach to labour-management relations; individualistic approach to employee selection; isolated work stations and minimum employee feedback; and a hierarchical approach to employee selection.’
David De Cenzo[564] on the other hand states that the fundamental principles of job analysis include: all jobs can be analyzed and recorded; job analysis can enhance communication; the process of analyzing jobs can easily accommodate change; the process can be clear enough so employees and employers can understand and contribute to the process; the process can be designed so that all major personnel decisions can be based on the resulting data; and skills, knowledge and ability can be defined in operational terms (application of skills, knowledge and abilities may be identified) among others.
Strategic Job Analysis
Technological advancement among other dynamic changes in the labour market has led to the rapid evolution of traditional job analysis to strategic job analysis (SJA). While the former relies on rigid job analytic techniques, the latter incorporates aspects such as flexibility which is prevalent in the current labour market.[565]
SJA focuses not only on the past and present aspects of the job like the traditional analysis but also proceeds further in the revision of tasks and KSAs in light of future needs and changes.[566]
SJA is a purposeful, systematic process of collecting current and future work-related aspects of a job, within the organization's strategic context.[567] SJA acknowledges the dynamic nature of work and illustrates how perceptions of current and future jobs may differ and therefore attempts to offer a method to reshape job analysis to suit the emerging needs of many contemporary organizations.[568] It however assumes that jobs can be analyzed independent of people.[569]
SJA focuses on the competency of employees and as such emphasizes on among other things: adaptability; teamwork orientation; interpersonal skills; conflict resolution skills; innovative thinking; flexibility; and decision making ability and self motivation.[570]
1.1 Purpose of Job Analysis[571]
The following are the key purposes of job analysis that seek to highlight the objectives and what is to be achieved from job analysis.
i. Job Description: this is a job profile. It describes the content, environment and conditions of jobs and prepared on the basis of data collected through job analysis. It provides information relating to activities and duties to be performed in a job. It differentiates one job from another by introducing unique characteristics of each job
ii. Job Specification: this includes the information relating to the requirements of skills and abilities to perform a specific task. It sets out the minimum acceptable qualifications that an incumbent must possess to perform the assigned duty successfully. The job specification statement identifies the knowledge, skills, abilities needed to perform that task effectively. With proper job specification, job opportunities become more precise, specific and detailed.[572]
iii. Job Evaluation: It provides necessary information for evaluating job worthiness and assists on the evaluation of actual performance against the predetermined standards to determine any deviations if any, and further helps in establishing the values of different jobs in a hierarchical order thus allowing for job comparisons.
1.2 Importance of Job Analysis[573]
Information and data gathered during job analysis are important in guiding organisations in making decisions which spans human resource planning; recruitment and selection; training and development; compensation of management; performance appraisals; information of duties; health and safety; job re-engineering and employee counselling.
Methods of Job Analysis
Different job analyses methods exist. They vary depending on the needs and requirements of an organisation, with the common denominator being to get basic job related information. When combined, they may bring out the hidden or overlooked information which prove to be great tools for creating a perfect job analysis candidate fit.
The factors to consider when choosing a job analysis method include: structure of the organization; hierarchical levels nature of job responsibilities and duties involved in it; advantages and disadvantages of the job analysis method; cost of the job analysis; and the person conducting the job analysis.
Job analysis can be conducted by a member of the HR staff, Managers, Supervisors or the employees themselves and an industrial engineer in case of a complex analysis.
The most common methods of job analysis include:
i. Observation: It could be continuous or based on intermittent sampling. Though one of the easiest methods, it can also be the most difficult given differing observation styles and perspectives and likelihood of influences of biases, likes or dislikes in persons. This defect can be averted by proper training of job analysts.
Observation could be achieved through direct observation; work method analysis or critical incident technique.
ii. Interview Method: It is mostly done on the job site in the course of an employee’s course of duty. It is used where there is need for enhanced employee autonomy for problem solving and decision making.
The job analyst gets the views and perspectives of an employee on his/her own job.
Interviews can be time consuming and complicated especially in professional and managerial jobs. The standardised interview form is the commonly used method.
iii. Questionnaire method: It involves the development of a survey instrument which is given to the employees and managers to complete. It requires framing of clear questions given that it works on an assumption that employees can accurately analyse and communicate information about their jobs and can at times be clouded by bias.
The questionnaires used could either be a checklist or an open ended questionnaire.
Challenges Facing Job Analysis
Challenges of job analysis can be broadly categorised into three aspects, namely, job analysis implementation process, institutional aspect, and methodology.[574]
1. Lack of Training or Motivation of most job holders who are, ironically, the primary source of information about the job.
2. Lack of training on and preparedness for job analysis tends to distort the data submitted by employees, either intentionally or inadvertently.
3. HRM’s failure to explain possible future changes in the organisation tends to make employees apprehensive and the needed information may not be captured.
4. Misunderstanding the value, importance and purpose of job analysis results in uncooperative employees during the process.
5. Lack of staff participation resulting in an extremely small source of data.
6. Lack of information of visions, roles and strategies of an organization.
1.2.1 Institutional Aspect
This involves a leader’s lack of interest and commitment for job analysis. Support from top management is paramount for successful job analysis, yet missing in most cases. It also involves personal bias and may be affected by likes and dislikes especially where the analyst is an employee of the same organisation and thus hinders collection of genuine and accurate data.
Lack of appropriate skills and ignorance of the job analysis, by an analyst, is a sheer waste of resources and thus such analyst needs training in order to get authentic data.
1.2.2 Methodology
This encompasses inadequate job analysis techniques and overemphasized organizational changes.
Interviews
Interviews are efficiency where the interviewee fully understands the reason of the interview and to differentiate it with ‘efficiency evaluations’ which could result in the submission of inaccurate data. In most cases, job analysis is often a prelude to changing a job’s pay rate. Employees may therefore legitimately view it as an efficiency evaluation that may affect their pay resulting in falsified data. Obtaining valid information can thus be a slow process, and prudent analysts get multiple inputs.
Questionnaires
Whether structured or unstructured, questionnaires have both pros and cons. Though a quick, cheap and efficient way to obtain information from a large number of employees, its development and testing, to ensure the questions are understandable to the respondents, can be expensive and time consuming.
In conclusion, Job analysis plays an important role in strategic human resource management.
JOB DESIGN
Introduction
Job design follows job analysis and the latter forms the foundational basis for the former. Information obtained in job analysis on the job requirements, people requirements and individual capabilities form the basis for decisions on job design.[575] Job design considers all aspects of a job with a view to ascertaining how production, technology and structural relationships may be modified or redesigned so as to satisfy the needs of workers.[576]
Definition
The Dictionary of Management terms defines job design as the process of deciding the content of a job in terms of its duties and responsibilities, on the methods to be used in carrying out the job, and on the relationship that should exist between the job holder and his superiors, subordinates and colleagues.
While it was traditionally defined as the set of opportunities and constraints structured into assigned tasks and responsibilities that affect how an employee accomplishes and experiences work,[577] its modern definition is broad and encapsulates the processes and outcomes of how work is structured, organised, experienced and enacted.
Purpose of Job Design
Job design aims to satisfy the requirements for productivity, efficiency, and quality of product or service offered and the needs of an individual for interest, challenge and accomplishment to ensure job satisfaction and improve performance and productivity.[578] It takes into account the needs of individual workers for interest, challenge and accomplishment hence improving employees working life and job satisfaction. Further, job design aims to fulfil the social responsibilities of the organization to the people who work in it by improving the quality of working life. It outlines the job responsibilities very clearly and also helps in attracting the right candidates to the right job making the job look interesting and specialized.[579] In a nutshell, job design ensures that jobs are designed in a way to maximize the engagement and satisfaction of individual workers and on the other hand maximize the performance and productivity of an organization.
Nature of Job Design
The process of job design includes the specification of the contents, methods, and relationships of jobs in order to satisfy technological and organizational requirements as well as the social and personal requirements, including competencies – (KSA), experience and formal qualifications, of the job holder.[580] It primarily focuses on designing the process of transformation of inputs into outputs and considers the human and organizational factors that impact that transformation.[581]
Job design could be regarded as being primarily traditional or non-traditional in nature.
Traditional Job Design
This design is based on the principles of Scientific Management and the work of Fredrick Taylor, a noted US industrial engineer, who advocated that operational efficiency is enhanced by job simplification and repeated performance of the same narrow tasks by employees. Employees exercise little judgment, and need limited skills and training to execute their duties.
Non-traditional Job Design
In contrast, non-traditional job design embraces the concept of job enrichment, where employees are autonomous employees and the jobs are broad and meaningful job and they can make use of variety of skills. With it come increased levels of extrinsic motivation, high quality performance, high satisfaction, and low absenteeism and turnover.
Elements of Job Design
The four elements of job design are Job content: which is the actual content of the job and should be designed to enable people to find their work meaningful; Job context: which includes factors such as ergonomic job design, work setting, technology, and flexible working options; Work relationships: which ensures that the job design also considers interactions that a job holder would have; and the Line manager:[582] who plays a vital role in bringing the individual’s job design to life.
A well designed job without a supportive line manager who provides no feedback is nothing.[583]
Figure 1: Elements of Job Design
1.3 Theories of Job Design
Job design is attributed to the organisational theory.[584] According to Dwight Waldo, there is no one theory that can describe the organizational theory. Job design theory is rooted in economic perspectives on the division of labour where economist such as Smith and Babbage propose that productivity increases if jobs are broken down into simple tasks.[585]
Classical Approaches to Job Design
Adam Smith (1723-90) argues the separation of manual tasks leads to an improvement of economic growth in three ways:[586] output per worker increases because of enhanced dexterity; work preparation and changeover time is reduced and specialisation stimulates the invention of new machinery.
Charles Babbage concurs with Smith and points out that, the employer could pay a lower wage through simplifying tasks and allocating fragmented tasks to unskilled workers.[587] This thinking is premised on the assumption that division of labour and simplification allows employees to develop specialized skills and efficient techniques for completing tasks, as well as to eliminate distractions and reduce time wasted while switching tasks.
Taylorism Theory of Scientific Management
The writings of Taylor (1856-1915) intensified interests in job design during the 20th century interest in job. His theory of scientific management is based on five main principles: maximum job fragmentation, separation of tasks into their simplest constituent elements; the divorce of planning and doing; divorce of ‘direct’ and ‘indirect’ labour; maximisation of skill requirements and job-learning time; and the reduction of material handling to a minimum. It is however criticised by various authors as a short-lived phenomenon that died in the 1930s economic depression.
Fordism Theory (Henry Ford)
Fordism introduces an interlinking system of conveyor lines that feed components to different stations to be worked on and the standardisation of commodities to gain economies of scale. Henry Ford installed specialised machines and applied major principles of Taylorism to perfect the flow-line principle of assembly work.
Human Relations Theory
This theory focuses on the perceived needs of workers and the psychological and social aspects of work.[588] Its advocates were deeply concerned about the well-being, satisfaction, and motivation of employees. It is however criticised for managerial bias down playing of basic economic conflict of interest between the employee and employer.
Job Characteristic Model Theory
Job Characteristics Model (JCM) is one of the most influential theories of job design. It is put forward by Hackman and Oldman (1980). Fundamental to JCM is the notion that there are two kinds of job motivation: external motivation and internal motivation,[589] where the former includes salary, benefits, and bonuses while the latter derives from the sense of self-satisfaction that one receives from a job well done.
Internal motivation is enhanced where: (i) an employee experiences responsibility for the results of the work,; (ii) has knowledge of the results of the work; and (iii) experiences the work as meaningful—as something that “counts” in one’s own system of values.
JCM which is also referred to as job enrichment identifies characterises motivating jobs as jobs with skill variety; task variety; task identity, task significance, autonomy and feedback.[590]
Techniques of Job Design
The figure below illustrates the most common techniques of job design.
Job Simplification
Jobs are divided into smaller components, analysed and subsequently assigned to workers as whole jobs to increase productivity and proficiency of individual.[591]
Job Enlargement
It is the horizontal expansion of the job content by increasing the number and variety of tasks associated with it.[592]
Job Rotation
This is the systematic and planned movement of employees from one job to another. It enables the development of the employees’ skills, their organizational retention, reduces job boredom, [593] while at the same time it controls the work-related musculoskeletal disorders and reduces the exposure of workers to work-related injuries.[594] Frequent job rotations are however not advisable as they may have a negative impact on the organization and the employee.
Job Enrichment
This approach combines several activities from a vertical cross section of the organization into one job to provide the worker with more autonomy and responsibility; representing an increase in job depth.[595] It focuses on increasing the authority, discretion, and responsibility for decision making of a job holder in his/her current role. This makes them feel valued and thus increases their cooperation and commitment to the organisation[596] and also leads to improved employee satisfaction and a gradual positive attitude toward the organisation and a better self image which encourages them to grow the more.
Factors Affecting Job Design
Factors affecting job design in an organization can be broadly classified into three heads, namely; organizational, environmental and behavioural factors.[597]
Organizational Factors
These are internal factors and include: tasks, work flow, work practices and ergonomics.[598]
Task Characteristics: These are features of a job. The job design is based on the type of job and the duties involved in it. Simple tasks may be performed by individual employees a team working closely together or strung along an assembly line. Complex ones require carrying out a variety of connected tasks by individuals or by groups of workers.[599]
A job can be complex based on the number and variety of tasks to be carried out; range and scope of the decisions that have to be made; or difficulty of predicting the outcome of decisions. The internal structure of each task consists of (i) planning, (ii) executing, and (iii) controlling, which must be present for a task to be effective.[600]
Ergonomics: This is the matching of the job with the physical ability and characteristics of the worker individual and provision of a comfortable and conducive environment.[601] Employers should design jobs that fit the workers’ physical ability while balancing job demands to enhance efficiency and productivity.
Work Flow: Job design should consider the sequence and balance between jobs and the products and service processes so as to ensure that the work is done efficiently.
Work Practice: These are methods or standards laid down for carrying out a certain task and differ from one organisation to another. They should therefore be considered in job designing, to avoid undesirable outcomes, especially where they are part of a union-management relationship.
Environmental Factors
They are either internal or external and include among others; employee skills and abilities, their availability, and their socio-economic and cultural prospects.
Employees Skills, Availability and Abilities: A well-designed job is one that balances the employee’s skills, availability and ability. An imbalance can lead to decreased productivity and employee satisfaction.
Socio Economic and Cultural Expectations: The social and cultural conditions differ with countries and therefore, a job design should take into consideration an employee’s socio-economic and cultural expectations.
Behavioural Factors
These include feedback, autonomy and diversity-variety.
Feedback: Feedback is forms an integral part of work. Job analysis relies on feedback for the preparation of a job design which then lays a foundation for all other activities.[602] Feedback is both up-down and down up and proper avenues should therefore be provided.
Autonomy: Work autonomy allows employees to enjoy certain level of freedom which then boosts their creativity, independence ultimately leading to increased efficiency.
Variety: Job variety/diversity reduces boredom and monotony especially where a job is repeated over time which could lead to lack of interest and carelessness. A job which gives due importance to job variety/diversity in its design remains interesting to the worker.
In essence, Job design is critical for success of any organization. Ineffective implementation of job designs can lead to failure to achieve an organisation’s general strategy and direction. Employee job satisfaction and motivation and ultimate increase in performance and productivity can be enhanced through efficient utilisation of job design. Every organization must ensure it has in place an effective job design that helps it achieve not only its missions, objectives and targets but also for its employees.
LEGAL FRAMEWORK ON JOB ANALYSIS AND JOB DESIGN IN KENYA
Although there is currently is no law in Kenya which stipulates requirement of job analysis and design by employers in mandatory terms, the law, through various statutes, brings out what would be called the products of job analysis and design into play. Various statutes set out requirements and standards that employers should meet, most of which are met through job analysis and job design.
1.4 The Constitution
Article 27 provides that every person is equal before the law and has a right to equal protection and equal benefit from the law, and that, women and men have the right to equal treatment including the right to equal opportunities in political, economic, cultural and social spheres and shall not be discriminated upon directly or indirectly on any ground including among others, race, sex, disability and age.
Article 41 provides that every person has a right to fair labour practices and every worker has a right to fair remuneration, reasonable working conditions among others.
Article 55 (c) and 56 (c) provide that the State shall put in affirmative action to ensure access to employment for youths and minorities and marginalised groups respectively. The best way the State can provide these opportunities and access to employment is by first doing a job analysis to identify areas where there is need for jobs and take into consideration the things that will be required to carry out the tasks it identifies.
The Constitution establishes offices and sets out the qualifications for appointment into such offices in the legislature, executive and the judiciary. It also sets up commissions and independent offices while also providing for job specifications in relation thereto.
Article 98 provides for the qualifications of the members of the Senate. It sets out the requirements to be a member of the Senate, including the speaker who will be an ex officio member. Article 99 provides for the qualifications and disqualifications for election as Member of Parliament.
The offices of the Speaker and Deputy Speaker are established under Article 106. In addition the Article outlines the conditions to vacating the office. Article 107 goes on to describe how the job is conducted during any sitting of a House of Parliament.
Article 108 provides for party leaders. This section shows the order of precedence to be observed in the National Assembly, with the leader of the majority party and the leader of the minority party falling under the Speaker of the National Assembly.
Chapter Nine of the Constitution deals with the Executive arm of government. Part 2 deals with the office of the President and Deputy President. It sets out the functions and powers of the president which include reporting once annually, in an address to the nation on all the measures taken and the progress of achieved in the realisation of the national values and principles, and appointing of cabinet secretaries among others.
Part 3 deals with the Cabinet. Article 152 (3) disqualifies the appointment of a member of parliament as a cabinet secretary. Article 153 provides for the reporting structure, an element of job design where it states that Cabinet Secretaries are accountable individually, and collectively, to the President for the exercise of their powers and the performance of their functions. Article 154 establishes the office of the Secretary to the Cabinet. It outlines the duties of the Secretary to the Cabinet.
Article 160 provides for the independence of the Judiciary and provides for, among other things, the remuneration and benefits payable to judges and provides that subject to Article 168 (6) the remuneration and benefits payable to a judge shall not be varied to the disadvantage of that judge. Article 161 on the other hand sets out that judges of the superior courts, magistrates and other judicial officers and staff make up the judiciary. It further establishes the office of the Chief Justice, the Deputy Chief Justice and the Chief Registrar of the Judiciary.
Article 166 provides for the appointment of the chief justice, deputy chief justice and other judges. It provides for the academic and professional qualifications and requirements and the relevant experience required of the candidates.
Article 233 establishes the Public Service Commission. Its powers under Article 234 include establishing and abolishing offices in the public service and appoint persons to hold or act in those offices, and to confirm appointments and to develop human resources in the public service.
Executive Order No. 2 of 2013: Organisation of the Government of Kenya
H.E. the President issued this directive in May, 2013 setting out the organisation structure of the government. It also sets out the functions and duties of Cabinet Secretaries in their line ministries.
The Ministry of Devolution and Planning,[603] is tasked with among other functions, human resource management and development; career design and development training and capacity building and organisational design and development while the functions of the Ministry of Labour, Social Security and Services include among others; formulating employment policies, national human resource planning and development; and facilitating and tracking of employment creation.[604]
The Employment Act
Section 5 (3) provides that no employer shall discriminate directly or indirectly against an employee or a prospective one on grounds race, sex, disability, etc in respect of recruitment, training, promotion, terms and conditions of employment etc. Section 10 (2) provide that a written contract of employment shall state among other things, the job description of the employment; the hours of work; the place of work; remuneration; and scale or remuneration.
Employment Policy Recommendation, 1964 (No.122)
Section 25 provides that member states should, subject to technical requirements, explore the possibility of expanding employment by producing, or promoting the production of, more goods and services requiring much labour; and promoting more labour-intensive techniques, in circumstances where these will make for more efficient utilization of available resources.[605]
Employment Policy Convention, 1964 (No. 122)
It aims at ensuring that there is freedom of employment and that each worker is allowed the opportunity to use his or her skills and endowments in a job for which he or she is well suited.[606]
The Advocates Act, Cap 16
Sections 9-11 of the Act relates to the provisions relating to the right of practising as an advocate in Kenya. Section 9 relates to the qualifications necessary for one to practise as an advocate whereas section 10 provides instances where certain people may be deemed to be practising as advocates. Section 11 on the other hand relates to the necessary provisions that allow foreign advocates to practise as advocates of the High Court of Kenya.
The Occupation, Safety and Health Act
Section 6 sets out the duties of an occupier which include, among others, ensuring the safety, health and welfare at work of all persons working in his workplace; and the provision of such information, instruction, training and supervision as is necessary to ensure the safety and health at work of every person employed. An employee is required, under section 13 (1) (c), to wear or use, all times, any protective equipment or clothing provided by the employer for the purpose of preventing risks to his safety and health.
Sections 47 – 52 dealing with health general provisions require that every occupier to ensure that every workplace: is clean; is not overcrowded; has sufficient ventilation; and lighting; proper drainage of floors; and sanitary conveniences. Section 76 dealing with ergonomics at the workplace provide that every machinery, equipment, personal protective equipment, appliances, etc used in a workplace comply with the prescribed safety and health standards and be appropriately installed, maintained and safe guarded.
Section 77 requires that means of access to and the place of employment should be safe, including among others, stairways, passages ways, floors, etc. Sections 91 -95 dealing with general welfare require the occupier (employer) to ensure that there is supply of drinking water; washing facilities; first aid kits, among others.
Labour Institutions Act, Cap 234
Section 5 establishes the National Labour Board. Its functions under section 7 include advising the Minister (Cabinet Secretary) on systems of labour inspections and administration of labour laws; the general state of employment, training and manpower development in the country; productivity and improvement and the appointment of wages councils.
Section 35 lays down the powers of a labour officer for the purpose of monitoring or enforcing compliance with any labour law. The officer may: require an employer to produce an employee employed by him and a document relating to the employment of an employee; enter, inspect and examine all latrines and other sanitary arrangement or water supply; require the production of wage sheets or other employment records kept by an employer; and order that all buildings and premises where employees are housed or employed be kept in a clean and sanitary condition.
Ministry of Labour Social Security Services, Strategic Plan 2013 -2017
Under the stakeholder analysis, the SP identifies a number of stakeholders, their functions, expectations and the ministry’s role in meeting the stakeholder’s expectation and the stakeholder’s role in facilitating service delivery. Among others, the stakeholders identified are:
i. Directorate of Public Services Management: it is expected to issue guidelines on human resource management to the organisations that deal with human resource and through timely and unambiguous circulars.
ii. Employers: They are expected to create employment opportunities, comply with labour laws and regulations and provide continuous training and development of staff among others.
The Ministry is to meet this expectation by issuing training guidelines, developing curricula and vetting of training providers and training programmes among others.
The Strategic Model’s vision is “A competitive workforce and a just society” while its mission is “To promote decent work and enhance empowerment of vulnerable groups.” It identifies a number of Key Result Areas (KRAs) one of which is Manpower development, employment and productivity management. Under this KRA, one of its strategic objectives is “To provide policy guidance on national human resource planning, development and utilization.” This is to be achieved through provision of up-to-date labour market information; development of an integrated human resource development strategy; and updating of the Kenya National Occupational Classification Standards (KNOCS).
The Directorate of National Human Resource Planning and Development (DNHRPD) is tasked with the provision of labour market information; development of human resource planning and development policies; evaluation of relevance of training programmes to the labour market; assessment of training needs in the economy; maintenance of training master-file; and maintenance of a National Occupational Classification Standard (NOCS).
In delivering its services, the DNHRPD works closely with the Human Resource Management Unit and the Human Resource Development Unit.
County Government Act
Re-designation
This is a form of job design introduce by the Act. Section 2 defines it as:
the conferment upon a person, of a county public office at a grade equal to or substantially equal to the one previously held by that person and whose major consequence is to change from one cadre to the other to facilitate that person’s horizontal mobility characterised with change in career path.
Objectives of the County Public Service, under section 55 include: provision of systems and mechanisms for human resource utilization and development in a manner that best enhances service delivery for the people of the county and provision for human resource management and career development practices, among others.
Under section 59 (1) the functions and powers of the County Public Service Board, on behalf of the County Government, include, among others, to establish and abolish public offices (as read together with Section 62), facilitate the development of coherent, integrated human resource planning, advice the county government on human resource management and development and make recommendation to the Salaries and Remuneration Commission, on behalf of the county government, on remuneration, pensions and gratuities for county public service employees.
Section 65 provides for matters to be taken into consideration to appointments in the County Government and include among others, national standards, values and principles as set out in Articles 10, 27 (4), 56 (c) and 232 (1) of the Constitution; the prescribed qualifications for holding or acting in the office and individual performance and that the appointments shall consider the overriding factors being: merit, fair competition and representation of the diversity of the county.
Section 2 defines merit, in reference to a candidate for appointment, promotion or re-designation to a county public office means, as:
The abilities, qualifications and personal qualities required to satisfy any prescribed criteria for appointments in the county public service or to carry out the duties of the county public office; and the person’s potential for development.
The Public Service Commission Act, Act No. 4 of 2010
Section 11 sets out further functions and powers of the Commission in addition to the ones set out under Article 234 of the Constitution which can be effected through the regulations which the Commission can make in accordance with section 31 of the Act. Section 31 (2) (a) provide that the regulations may provide for the establishment and abolition of public offices in the public service.
Public Service Competency Framework, 2011
This framework was developed by the Ministry of State for Public Service within its context and mandate of providing strategic leadership and policy direction in Public Service Human Resource Management and Development.
It supports the Government’s goal to: institutionalise competence-based recruitment and Results-Based Management (RBM) in the Service; entrench a performance culture; develop good leadership, integrity, values, ethics and principles in accordance with the Constitution.
It further ties with the national development priorities of Vision 2030 in relation to the development of the human resource by seeking to align competencies to the framework for the development of Schemes of Service and career progression guidelines.
It is flexible for customization and for addition of role specific competencies by public service and aims at guiding the Service in identifying, managing, developing and harnessing competencies required for the execution of mandates of Ministries/Departments and other Public Service agencies at both National and County levels.
Sessional Paper No. 10 of 2012 on Kenya Vision 2030
The Vision, whose theme is a globally competitive and prosperous nation with a high quality of life by 2030, is anchored on the political, economic and social pillars are underpinned on among others macroeconomic stability; enhanced equity and wealth creation opportunities for the poor; and human resources development.
The Vision provides that Kenya’s global competitiveness can be enhanced through the creation of a human resource base to be constantly subjected to retraining and access of technological learning within employment. It further points out that areas of priority include strategic management and coordination; human resource development within employment and reorientation of human resource and advocates for the establishment of a human resource database to facilitate better planning of human resource requirements in the country.
Life-long training and development are among factors that will enable Kenya become “a globally competitive and adaptive human resource base to meet the requirements of a rapidly industrialising economy”.
The Second Medium Term Plan 2013-2017
It is one of the phases of the implementation of Vision 2030. It advocates for an efficient, motivated and healthy human resource base, which is pivotal for enhanced national competitiveness, economic growth and development, which is in line with its theme under the employment sector – “Every Kenyan with decent and gainful employment”
Economic Recovery Strategy for Wealth and Employment Creation 2003 - 2007
At this point in time, the Government believed that enhanced productivity and the overall performance of the economy is pegged on a well educated and health population. It is for this reason that the ERS provides for the investment of human capital through education, training and healthcare which is a long term solution.
International Standard Classification of Occupations (ISCO -08)
This is a model standard established under the auspices of ILO which is also its custodian. ISCO – 08 supersedes the ISCO – 88. Different countries use this model in their development, or revision of corresponding national classifications. ISCO facilitates international communication on occupational information, in particular the production and presentation of reasonably comparable statistics for different countries.
Kenya’s National Occupation Classification in 2000 was developed within the conceptual framework of the ISCO – 88. It sought to establish a comprehensive system for classifying occupational information for effective human resource management in Kenya. Currently, the Directorate of National Human Resource Planning and Development is tasked with the updating of the Kenya National Occupation Classification Standard (KNOCs). Its last update was in 2000.
In conclusion, Job analysis and design play an important role in strategic human resource management. Organisation need to put in place mechanisms that will allow them a bountiful harvest of the fruits that a successful job analysis bears and in so doing they will also be able to reap from the optimum performance of the human resource.
Such mechanisms should also ensure that employee needs are considered so that their personal growth and development is also enhanced. This would result in employee job satisfaction and motivation and ultimate increase in performance and productivity can be enhanced through efficient utilisation of job design.
As Kenya sets out to for global competition in relation to competencies of the human resource, then a national approach and integration strategic human resource management and coordination is paramount. This can be enhanced and maintained though legal and policy framework and creation of enabling environments good political will.
The National and County Governments should therefore take an active role in ensuring the current legal framework on the development of human resource is fully implemented and further develop policies as well as review the current ones to reflect the dynamics of the labour market which is evolving rapidly due to globalisation and increased technological advancements.
Strategic human resource management should be embraced in all levels of production; international; regional, national, and sectoral.
RECRUITMENT & SELECTION
Introduction
Recruitment is the systematic process of identifying that the organization needs to employ someone, attracting and obtaining a pool of potential candidates with the desired knowledge, skills and experience to allow an organization select the most appropriate people to fill job vacancies.[607] Selection, on the other hand is the process involved in choosing a suitable candidate using fair and equitable assessment from applicants to fill a post through, but not limited to interviewing, reference checking and testing.[608]
RECRUITMENT AND SELECTION PROCESSES
RECRUITMENT
The recruitment process begins when new recruits are sought and ends when their applications are submitted. Before deciding to recruit, an organization ideally identifies vacancies in the organization and evaluates the needs of the organization in terms of workforce. This is done through job analysis. In doing so, they consider whether there are any changes that have occurred that may impact the role of various positions. They also identify whether there are any gaps in the organization’s workforce that need to be filled. Afterwards, they reduce this to job descriptions. Job descriptions will help an organization develop interview questions, reference check questions and also articulate the responsibilities and qualifications to attract the best suited candidates.
An organization will then develop a recruitment plan where it will decide on various advertising resources and techniques. Among the methods used by organizations to recruit include: [609]
· Print advertisement: where organizations advertise in nationwide newspapers and magazines.
· Job fairs: This provides a good avenue for organizations to meet potential candidates in a single event.
· Diversity agencies: where organizations approach agencies which represent under-represented groups and ask to recruit interested parties. This is mostly done in an effort to align their workforce and recruitment policies to directives given by the government on diversity hiring.
· Social media: where organizations use the likes of facebook and twitter, which helps employers to interact with users through the use of short messages and allows employers to notify followers of job vacancies and employment opportunities in various organizations.
Choosing the method by which to advertise is very essential to recruitment because the venue often determines an employer’s ability to attract applicants. There are various factors that often affect and ultimately dictate an organization’s recruitment policy: choice of method, time, and frequency of recruitment and who to recruit. These factors are either be internal and external. [610]
External factors: These are factors beyond the organization’s control. They include:
· Labour market. This refers to supply of and demand for labour. If the demand for a specific skill is high, relative to its supply, many organizations will scuttle for the available recruits thus the methods used in recruiting will be varied to compete with other organizations.
· Image /goodwill. This refers to the reputation of the organization. The better the image of the organization, the better the chances it has of attracting candidates who are competent.
· Political-social-legal environment. Government regulations prohibiting or requiring certain principles be reflected in hiring affect the recruitment process as they restrict management freedom to select the individuals they prefer for the job.
· Competitors. The recruitment policies of competing organizations affect the recruitment function of organizations. If a competitor is offering potential employees competitive packages, the organization will be forced to also try developing good packages to lure in the talent needed.
Internal factors affecting recruitment
· Recruitment policy: an organization’s recruitment policy reflects on the values of the organization and will consequently determine who they employ, when they carry out recruitments and from where they will source for the potential employees they wish to recruit. Their policy may also provide for core competency, where the organization decides to outsource services.
· Human resource planning; this helps in determining the gaps present in the manpower of an organization. In turn this will dictate the number of employees to be recruited and positions to be filled by the recruits.
· Size of the firm: this affects the recruitment policies seeing that a firm or organization can only hire people with regard to its capacity. Large organizations will often recruit more individuals than the smaller ones.
· Cost of recruitment; recruitment incurs a cost to the employer therefore an organization may employ the source of recruitment that will bear a lower cost of recruitment for each candidate.
· Personnel Utilization; an organization can avoid hiring new personnel by using already existing employees. This saves on start-up costs especially if it involved opening a new department. It saves on time as well. This however, cannot be long-term as the employer will have to recruit new employees to ensure viability of the department.
Once the job advertisements are posted, candidates will apply, of which they will be called applicants.[611] Once the organization has had enough pool of candidates, the selection process commences.
SELECTION
Selection is the process of choosing individuals from a pool of job applicants with the required qualifications and competence to fill jobs in the organization.[612] Human resources selection techniques vary based on the organization staff and resources.[613]
Whereas recruitment seeks to attract as many candidates as possible, selection on the other hand is negative in its application.[614] This is because it seeks to eliminate as many candidates as possible in order to identify the right candidate.[615] Thus selection may be considered an elimination process.
In selecting candidates to work for it, an organization will consider and eliminate candidates based on:-
· Application Forms or curriculum vitae Here, details such as biographical information, education and work expertise are filled in a black form with specifics of the required information. Applicants are eliminated if the information on application form is not what the human resource department is searching for.[616]
· Selection Tests
These tests are based on the premise that the best prediction of future behaviour is the currently observable behaviour in similar situations. [617] Thus the tests probe ability, personality and trainability, and how an applicant acts in a similar but a simulated job environment he is applying for. This process is used as it difficult for applicants to fake job skill. Also, the equipment used is similar to the one used on the job.[618] Those who do not perform favourably are eliminated at this stage.
· Selection Interview
This is a face to face step for information exchange between applicant and interviewer as to applicant’s suitability and interest in a job the employer seeks to fill. Here, information in the application is probed more deeply by the interviewer and any missing pieces can be collected at this time. The selection interview is used to weed out unqualified applicants who do not satisfy the interviewer.[619]
· Reference Checking
This refers to an objective evaluation of an applicant’s past job experience based on information collected from key individuals mostly employers who have known and worked with the applicant before. It verifies the accuracy of information given by the job applicants by comparing their experiences to the competences required for the job.[620] Those with poor references are eliminated at this point.
· Final selection
This is the last step in selection and is based on all information gathered after recruitment and selection processes; hence information gathered from those processes should be well documented.[621]
Applicants who are hired after this final step are issued with appointment letters.[622]
LEGAL ISSUES ARISING FROM RECRUITMENT AND SELECTION
The principle that positions are filled on the basis of merit is fundamental to the recruitment and selection of employees in both the public and private sector. Merit based recruitment and selection are important to ensure: all eligible members of the community have a fair chance to gain jobs with organizations, selection is based only on a person's ability to perform the work and that the best person is selected hence resulting in a quality workforce capable of effectively designing and delivering services and programs to the people. Though they have the right to hire whoever they prefer, organizations must do so within the ambit of the law.
In Kenya, however, many organizations fail to practice merit based recruitment and selection. Many organization’s policies fall short and even go contrary to what is provided by the law.
DISCRIMINATION
In attempting to recruit and ultimately select new employees, an organization will often choose those they deem fit. However, in so doing it may knowingly or unknowingly, leave out candidates. In some instances, this may amount to discrimination. Discrimination is a form of prejudice affording different treatment to different persons which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.[623] Discrimination is also defined in the Equal Opportunities Bill 2007 as an act or omission including any condition, requirement, policy, situation, rule or practice that has or is likely to have the direct or indirect effect of unjustly or unfairly causing disadvantage to a person or group of persons on one or more of the prohibited grounds given in the Constitution of Kenya 2010. Use of some of the internal sources for recruitment creates an environment for favouritism and nepotism. For example when recruiting through referrals, the referee will most likely refer either family or friends. This method of recruiting employees discriminates on persons who, though qualified for the job, never got the opportunity to apply for it.
When advertising, whether within the organization or outside, an advertisement is supposed to be precise and clear while at the same time not being discriminatory.
Discrimination can be direct or indirect.[624] Direct discrimination occurs when one advertises for example, specifically for either a man or a woman or a particular race. Indirect discrimination, on the other hand, can be said to occur where a requirement or condition may appear to be fair but can be shown to put people of a particular age or age group at a disadvantage for example, ‘we need a dedicated, young professional under 35 years’ this may be viewed as discrimination based on age. The Constitution of Kenya in Article 19(2) provides for the right to equality and freedom from discrimination. The state and individuals are barred from discriminating directly or indirectly against any person on any ground race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. The Employment Act[625] pursuant to this provision provides for non-discrimination directly or indirectly, against an employee or prospective employee or harassment of an employee or prospective employee on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, mental status or HIV status also in respect of recruitment, training or promotion. The Industrial Court and labour officers are charged with the duty of ensuring the protection of the right to equality and freedom from discrimination captured in the Employment Act.
The requirement by some organizations that prospective employees undergo certain medical examinations such as testing for certain diseases is another form of discrimination. In the case of VMK vs CUEA [2013] e KLR, the claimant, a casual worker, was denied a receptionist position which would have been on a permanent basis in the respondent’s institution because she tested HIV+. The test was required to establish her fitness for the job and the application form specifying ailments to be tested excluded HIV/AIDS. The court held unequivocally that the decision not to employ the claimant on permanent terms was discriminatory. In giving the ruling, the court stated that no employer should require HIV screening for purposes of recruiting, retaining or promoting employees. In addition, The HIV and AIDS Prevention and Control Act[626] prohibits compulsory screening as a precondition to employment.
Discrimination is also experienced in recruitment and selection of disabled people. The stigma that follows the disabled has created a perception that they are weak and cannot therefore do much. Often, it does not matter that their disability has no bearing in their effectiveness to perform a particular job. Article 54 of the Constitution provides that the state shall ensure progressive implementation of the principles that at least five percent of the members of the public in elective and appointive bodies are persons with disabilities. In compliance with this provision, the public service commission published a code of practice on mainstreaming disability.[627] This handbook requires every public service entity to take steps to ensure that the recruitment process attracts applications from as many qualified persons with disabilities as possible in order to fulfil at least the five percent statutory requirement. Also, under the Persons with Disabilities Act,[628] discrimination is prohibited in both public and private areas of employment including advertisements, recruitment, the creation, classification or abolition of posts. The National Council for Persons with Disability established under the act is charged with promotional, educational and policy responsibilities and has the mandate to formulate and develop measures and policies designed to achieve equal opportunities for persons with disabilities. Organizations’ policies will therefore be influenced by these laws.
Ethnic and racial discrimination is another form of discrimination that is rampant in the country. A case in point is where Dongbu Daewoo Electronics Corporation advertised on the Daily Nation newspaper dated 19th September, 2014 the position of a Sales Manager for both East and West Africa where they will be stationed in Nairobi. However, the first qualification was “Must be an Indian”. Section 7(3) of the National Cohesion and Integration Act makes it unlawful for a person or his representative to discriminate on the basis of ethnicity in relation to employment. The Corporation was therefore asked by NCIC to re-advertise the position afresh omitting all requirements which were discriminatory.
Some organizations, especially in the public sector discriminate on the basis of ethnicity, favouring those of their community. The National Cohesion and Integration Act[629] in section 15 seeks to combat this situation by establishing the National Cohesion and Integration Commission. This commission has a key mandate to promote equality and opportunity between different ethnic and racial communities in Kenya. It also has the powers to investigate complaints of ethnic and racial discrimination and make recommendations to the Attorney General, the Human Rights Commission or any other relevant authority on any remedial measures to be taken if complaints are valid. Section 43 of the Act provides for provision for aggrieved persons to lodge a complaint regarding a contravention of the Act to the commission.
However prohibition by the law has not served as a deterrent for employers both in the public and private institutions from violating the same. Silence of some statutes still poses a challenge in fighting discrimination in recruitment and selection. This undermines implementation and enforcement of these laws.
On the other hand, affirmative action is a form of positive discrimination where a segment of society is treated with less strict requirements compared to the rest so as to remedy past unfair treatment.[630]. Affirmative action is an action or policy in an institution or an organisation where the organisation actively engages in efforts to improve opportunities for historically excluded groups.[631]
Employers are encouraged to take affirmative action measures consistent with the promotion of equality or the elimination of discrimination in the workplace. The courts have upheld positive discrimination. In the case of Independent Policing Oversight Authority & another v Attorney General & 660 others [2014] e KLR, one of the arguments of the petitioner was that the exclusion of pregnant women from the police recruitment exercise was discriminatory. The court held that the discrimination meted out against women who were pregnant into the National police service was not discriminatory. It added that the need to protect the lives of the woman and unborn child cannot be gainsaid. The court took judicial notice of the rigorous training in the national police training colleges was justifiable.
Kenya's national values and principles are set out in Article 10 of the Constitution. Among them are equity, inclusiveness and protection of the protection of the marginalized groups in the country. In light of these principles, the government is required to ensure the representation of persons from marginalized communities, and women; in elective and appointive positions at national and county government level.[632] This ensures affirmative action in the elective posts for minority groups.
In elective posts, the 2/3rd gender, rule has seen more women selected to join both the national and county assemblies as per Article 21(2) and Article 81 of the Constitution. The high court through judge Mumbi Ngugi, on Friday 26th June 2015 ordered the A.G and CIC to prepare and table before parliament within forty days the 2/3 gender rule bill that will unlock the stalemate over the implementation of the two thirds gender rule in all elective and appointive positions in the public service.[633]
Article 56 (c) of the Constitution provides that the state shall put in place affirmative action programmes designed to ensure that minorities and marginalized groups are provided special opportunities for access to employment. This is often showed by less strict requirements to members of minority groups when it comes to qualifications for positions in employment.
Article 232(1) (h) on the principles provides for the representation of Kenya's diverse communities within the Public Service. It further provides that the public service should afford adequate and equal opportunities for appointment, training and advancement at all levels for all citizens including minorities. Parliament is mandated with the duty of coming up with laws to effect the provisions of this Article. So far there no specific statute has been enacted.
Section 25 of The National Cohesion and Integration Act No.12 of 2008 has set up a Civic Education and Advocacy Department to spearhead training on affirmative action measures.[634]
CORRUPTION
Corruption refers to the act of doing something with an intent to give some advantage inconsistent with official duty and the rights of others; a fiduciary’s or official’s use of a station or office to procure some benefit either personally or for someone else, contrary to the rights of others.[635] Corruption in recruitment and selection comes in different forms including bribe taking, nepotism and patronage. Bribe taking and patronage are mostly propagated in the public sector whereas nepotism is by both the public and private sector.
There have been many instances of corruption in form of taking and receiving bribes reported during recruitment and selection processes. Bribes accepted by people marks the destruction of a meritocracy which should be the basis of employment. The recent national case of massive corruption was during the July 14, 2014 police recruitment. The court halted the hiring of around 8,749 police recruits due to rampant bribery. In the case, Independent Policing Authority & Another V Attorney General & 660 others.[636] High Court Judge Isaac Lenaola was of the view that the exercise was tainted with corruption, irregularities and blatant violation of the constitution.[637] The judgement nullified the recruitment and also ruled that taxpayers should bear the legal costs amounting to Kshs 87 Million, which that was the amount spent on the recruitment. The recruitment and selection process had been riddled with so much controversy such that parliament held a special committee meeting to investigate its credibility.[638]
The Teachers Service Commission was recently in the news over corruption allegations. Thousands of school teachers recruited in August of last year had to wait to get their appointment letters as the commission concluded their vetting. Four of the commission’s officials were interdicted after they were found to be involved in a corruption scandal. They allegedly irregularly recruited and promoted teachers before demanding a cut from their salary in an internal selection. 20 teachers had benefited from the fraudulent promotions which had cost the commission Kshs 2 Million by the time they were detected. The racket was reported to have begun even before the commission had announced the recruitment of 10,000 teachers. .[639] The teachers who were irregularly selected for promotion were required to remit the bribes via mobile money. This money was equivalent to half of their salary upon promotion.[640]
Another incident was that of the military. A day after military recruits had reported for training in the year 2010, the top military officials called a press conference to assure the public of the transparency of the whole month long recruitment exercise. The then Lieutenant –General Julius Karangi had issued a statement that the public had lost Kshs 19.3 Million to corrupt military gate keepers through a bribes for jobs scams. Those implicated were top military officers and their retired counterparts. They were collecting money from the public promising slots in the military. There have been reports of members of the public selling their land so as to raise the bribe money to make sure that their sons and daughters are selected. The bribe for jobs amounts were ranging from Kshs 80,000 to Kshs 200,000.[641]
It is not only in the public sector but in the private sector too. A survey carried out by World Bank in March 2015 revealed that over 250,000 jobs lost to corruption in Kenya for example, to get a cashier job in a supermarket in Nakuru, an interviewee was told by the manager that she had to pay him Kshs 10,000 in order to get the job paying Kshs 30,000 per month. [642]
Such large scale corruption presents a major hindrance to the process of recruitment and selection. It is evident even where those two processes are carried out, the exercise doesn’t produce the most qualified and competent candidates. Such bribes only ensure that the two processes aren’t carried out with merit on the candidate’s qualifications but are instead carried out on the basis of the highest bidder. The processes of recruitment and selection become merely a formality, some candidates having been already chosen.
Nepotism is also one of corruption’s most subtle and overpowering forms. It consists of selecting members to work in an organization purely on the unfair connection to a family member or relative. It also occurs mostly in internal recruitment processes as it is mainly a referral process on “who knows who”. In 2013 it was revealed during investigations by the Parliamentary Committee On Energy that the Kenya pipeline top executives were involved in the practice and stated that the practice had been operational since 2003 and it was not only restricted to top executives but also other employees within the parastatal.[643]
Despite being a rampant practice, very few laws in the country directly condemn corruption. Article 73 of the Constitution provides that the guiding principles in recruitment and selection of those in leadership positions be those of personal integrity, competence and suitability, or election in free and fair elections and thus corrupt practices are not to be practiced by those in leadership positions. Article 232(1) of the constitution of Kenya obliquely condemns corruption where it provides for values and principles of public service. It requires high standards of professional ethics among them accountability for administrative acts, transparency, fair competition and merit based appointments and promotions. Article 79 establishes an Ethics and Anti-corruption commission under which has the capacity to fight corruption in both public and private sector in some level. The commission in section of the ethics and anti-corruption commission act has the power to take preventive measures against unethical and corrupt practices. However, its success over the years is debatable.
The Public Officers Ethics Act outlines the general codes of conduct to be adhered to by public officers. It specifically states in section 17 that a public officer shall not practice nepotism or favouritism. The Anti Corruption and Economics Crimes Act in section 46 makes it a crime to abuse one’s power by perpetuating corruption. The body formed by statute giving effect to Article 79 of the constitution is the Ethics and Anti-corruption Commission.[644]
Interestingly, the constitution fails to directly condemn corruption and very few laws actually condemn it.
RECRUITMENT AND SELECTION BY FOREIGN COMPANIES WORKING IN KENYA
A number of foreign companies are contracted to work on public projects in Kenya. Generally, there are no restrictions on their recruitment and selection processes and statutes are silent on the matters of employment where foreign companies are involved. Government ministries have often formulated policies to standardize the practice. The principles of corporate governance and corporate social responsibility, too, have played a role in guiding organizations on recruitment and selection in foreign countries.
RECRUITMENT AND SELECTION OF PUBLIC OFFICERS
The constitution in chapter 17 defines public officers as (a) any State officer; or (b) any person, other that a State Officer, who holds a public office where public office meaning the national government, a county government or the public service.
Recruitment and selection process of public officers is carried out by, one, the public Service Commission, a constitutional office established under article 234 (2) of the constitution. Its mandate includes: Recruiting for the public service; establish and abolish offices in the public service; and appointing persons to hold or act in those offices, and to confirm appointments. It does so by setting standards in the; keying in the information; verifying information against the schemes of service; advertising in the local print media; receiving, sorting and filling applications; screening of applications; carrying out pre-selection; inviting candidates for interviews, carrying out final interviews and making appointments.[645] For the State Officers, they are recruited by commissions established under the constitution Article 234(3). These commissions include (i) the Parliamentary Service Commission; (ii) The Judicial Service Commission; (iii) The Teachers Service Commission; (iv)The National Police Service Commission.
All other public officers are recruited and selected as the law provides through appointment by cabinet secretaries subject to the relevant laws and the president where provided by the constitution.
The constitution in chapter 6 on leadership and integrity Article 73(2) provides that the guiding principles of leadership and integrity includes selection on the basis of personal integrity, competence and suitability, or election in free and fair elections. With this provision, the threshold of recruiting and selecting public officers is raised. In the past, recruitment and selection of public officers was not transparent as it majorly served to recruit people who would further the interests of the appointing authority.[646] Recruitment and selection were carried out behind the scenes, in boardrooms, which stifled independence of institutions concerned. Public officers now have to undergo vetting before being cleared to assume public duties. Vetting of public officers, which is a form of selection, is intended to reinforce adherence to the national values and principle of governance as required under Article 10 of the constitution. This provision provides for a competitive recruitment exercise based on the principles of equality, participation of the people, transparency and accountability. The public appointments parliamentary approval Act in Section 4 requires that nominated candidates of constitutional and statutory appointments appear before a committee of Parliament for vetting. Section 5 (1) of the Act states that in considering the issues for consideration in relation to any nomination shall be: the procedure used to arrive at the nominee; any constitutional or statutory requirements relating to the office in question; and the suitability of the nominee for the appointment proposed having regard to whether the nominee’s abilities, experience and qualities meet the needs of the body to which nomination is being made.
The vetting of judges and magistrates is also another form of recruitment and selection. In terms of section 23(1) of the Sixth Schedule to the Constitution and sections 13, 18, and 21 of the Vetting of Judges and Magistrates Act No. 2 of 2011 . The objective of the vetting is to scrutinize the suitability of all the Judges and Magistrates who were in office on the effective date of the new constitution of Kenya to continue to serve in accordance with the values and principles set out in Article 10 and 159 of the constitution. Section 18 of the vetting Act lists competence; integrity; fairness; good judgment; legal and life. The judges and magistrates vetting board finds a judicial officer unsuitable if they are: Involved in corruption and unethical conduct in the discharge of judicial duties, Incompetent to hold office due to lack of qualifications, Convicted of a criminal offence or abuse of office, have professional malpractice and Abdication of duty.
The executive has however in many occasions tried to undermine the constitution and statutory provisions in nominating and recruitment of public officers. The courts, however have been in ensuring the law is conformed to. In the case of Benson Riitho Mureithi Vs J. W. Wakhungu, Cabinet Secretary, Ministry Of Environment Water And Natural Resources and the Attorney General, where the petitioner was contesting the appointment of the Interested Party as the Chairman of the Athi Water Services Board by the cabinet secretary vide Gazette Notice No. 115 dated 10th January 2014. It was argued that there had been failure by the cabinet secretary to take into consideration the provisions of Article 73 in Chapter 6 of the Constitution when making the said appointment. The petitioner asserted that the Interested Party lacked integrity and it was therefore illegal and unconstitutional for him to hold such an office. The Constitution, the Water Act and the Public Officers Ethics Act which require that when making appointments to public office, the person making such appointment should have regard to the educational qualifications, experience, character and integrity of the person. She had also failed to advertise the position via public forum. The court ordered the cabinet secretary to adhere to the rules set out by the constitutions and the relevant Acts on her appointments.
Also in John Mining Temoi, Job Arnold Chepkwesi Vs The Governor Of Bungoma County Respondent The Bungoma County Public Services Board The Petition sought to challenge the selection, nomination and vetting of the interested Parties as the County Chief Officers of Bungoma County by the respondents. It was the contention of the Petitioners that the process of selection, nomination and vetting by the respondents was conducted in an unconstitutional manner since it failed to adhere to the standards set out in the both the Constitution of Kenya 2010 and statutory law. The interested Parties had not applied for the positions which was an illegality as the County Public Services Board Respondent had invited applications for specific positions. That by nominating persons that had not been interviewed in the specific job positions, the respondents acted against the principle of fair competition, merit, accountability and transparency as set out in Article 232(h) and (i) of the Constitution. The court held that the process of recruitment and recommendation of the interested Parties by the respondents, for their nomination was unconstitutional, illegal, null and void
In the case of Joseph Mutuura Mbeeria, Naftaly Rugara Muiga Vs The Cabinet Secretary For Education, Science And Technology & The Council, Jomo Kenyatta University Of Agriculture &Technology the Petition faulted the 1st Respondent for appointing the Interested Party Council of Jomo Kenyatta University of Agriculture and Technology without adhering to the laid down constitutional and statutory principles of inclusiveness and openness in public appointments as provided for in section 36(1)(d) of the Universities Act, 2012 which clearly provides that members of the Council must be appointed through an open process where; the positions should be advertised; that there be an open process of recruitment through short listing of candidates; that interviews be conducted. The court quashed the Gazette Notice and proceeded to make an order of mandamus directing the Cabinet Secretary for Education, Science and Technology to commence the recruitment process of members of JKUAT Council in accordance with the law.
The attorney general has also stated that even where the immediate incumbent is seeking re-appointment and the employer has assessed his performance to be good and wants to retain him, the vacant position must be subjected to the appointment process. His performance will be a factor to be considered in determining whether to retain him or not as against the other candidates who have been afforded an opportunity to compete for the same position.[647]
38.0
EMERGING TRENDS/ISSUES
Recruitment and selection process have often proved to be protracted taxing and expensive exercise. Technology is now challenging this convention. In recent years, the traditional approach to recruitment has been revolutionized by the concept of online recruitment. Also known as e-recruitment. Online recruitment enables the organizations to automate the process of recruitment and selection, saving on time and costs. Organizations’ website usually provide 'career' hyper link. This link helps job seekers to upload resume in the website. Using the uploaded resumes organizations can build their own resume database, which can be used for existing and future requirements. A 24/7 access to the database of the resumes to the employers is provided and thus facilitate organizations to hire people more rapidly. Examples include: BrighterMonday, KamaKazi and Careerpoint, . Although Internet recruiting will not replace traditional recruiting in the near future, it is quickly becoming an essential aid for today's recruiters.
There is also use of Applicant Tracking Systems (ATS) with selection data and tools. These systems will use a combination of biometric data and proprietary algorithms to predict which candidates are a likely fit, and which are not. This can be thought as akin to “DNA matching” but of a company. It is company specific, job specific, and much more accurate. A survey[648], found out that internet agencies provide the company with fewer but substantially better applicants than traditional recruitment agencies.
Another is out-sourcing where an organization completely transfers the recruitment and selection process or part of it to a third party. The outsourcing company assist the organisation by the preliminary screening of the applicants according to the requests of the organization and creating an appropriate pool of applicants for the ultimate selection by the organization. An example in Kenya is HBPR solutions.
However, even in using technology organizations quickly realise that no system can ever replace human intervention.
In conclusion, an organisation may have all of the latest technology and the best physical resources, but if it does not have the right people it will struggle to achieve the results it requires. Organizations should also marry their policies with the law and ensure that their policies are not only effective but uphold legality. Such policies should ensure that recruitment and selection processes are unbiased, transparent and that they result in the appointment of the best candidate that is merit-based and best-fit with the organisational values, philosophy, and goals.
TRAINING AND DEVELOPMENT
1. NEEDS AND IMPORTANCE OF TRAINING AND DEVELOPMENT
The benefits and results of training are normally long term and oftenthey continue to get polished with time. Training does not add value to the organization only, but also equips the employees with greater job security andcuts out opportunities for career advancement. A skill acquired through training is an asset for the organization and the employee.
The needs and importance of training are:
Motivates the employee
Training heightens the employees’ morale; the employees feel that they have the skills that add benefit not only to them but to the organization. This helps them develop confidence in themselves and what they do. Such skill development contributes to their career growth as well. Motivated employees have a lesser turnover, providing an organization with a stable work force, which has several advantages after all. New candidates who join an organization are given training. This training familiarizes them with the organizational mission, vision, rules and regulations and the working conditions.[649]
Changes in the technological field
Technology is dynamic, not static. Technological changes take place when more advanced machines are being used for automation of the processes and in the work environments. Computers have made the controls very easy; advances in Information Technology have enabled a greater degree of coordination between various businesses spread across the globe.
For organizations to keep themselves up to speed with the changes, the employees must learn new techniques and new skills to make use of advances in technology. Training needs to be treated as a continuous process to update the employees in new methods and procedures. If any updating and amendments take place in technology, training is given to cope up with those changes. For instance, purchasing new equipment, changes in the technique of production and operation of computers .The employees are trained on the use of new equipment and work methods[650].
Improves the job performance
In these competitive times, organizations must continuously improve. They have to be productive in order to survive and grow. Continuous improvement of the employees’ skills is an essential requirement for maintaining high standards of productivity. Productivity in the present times is anchored in knowledge; hence has to be continuous.[651] Training improves efficiency and productivity of employees. Well trained employees show both quantity and quality performance. There is less wastage of time, money and resources if employees are properly trained.
Better Management.
Training can be used as an effective tool of planning and control. It develops skills of the workers for the future and also prepares them for promotion. It helps them in reducing the costs of supervision, wastage and industrial accidents. It also helps increase productivity and quality.
Employee promotion
Training is necessary before and after an employee is promoted to a higher level in the organization and/or when transferring to a new job. Training is also necessary to equip with the advanced disciplines, techniques and technology. Since promotion and career growth is important, training is offered so that employees are prepared to meet the responsibilities of the new level job. Employees acquire skills and efficiency during training. They become more eligible for promotion. They become an asset for the organization.[652]
Reduction in supervision
When workers gain the necessary skills and knowledge, they become more confident. They will become self-reliant and require little guidance when performing their tasks. The supervisor can depend on the employees’ decision to give quality output. This relieves supervisors from the burden of constantly giving directives on what should be done. A well trained employee will be well acquainted with the job and will require less supervision. Thus, there will be less wastage of time and efforts.
OBJECTIVES OF TRAINING AND DEVELOPMENT
Objectives of training vary depending on a number of factors. The objectives depend on the nature of the organization where training has to be provided, the skills desired and the current skills level.
The objectives of training and development are as follows:
i. To impart new abilities and skills to the employees in a systematic way so as to learn quickly[653]
ii. To increase the knowledge of workers in doing specific jobs.
iii. To systematically impart new skills to the human resources so that they perform better.
iv. To bring about change in the attitudes of the workers towards fellow workers, supervisors and the organization.
v. To improve the overall performance of the organization.
vi. To make the employees handle materials, machines and equipment efficiently and thus to check wastage of time and resources.
vii. To reduce the number of accidents by providing safety training to employees.
viii. To prepare employees for higher jobs by developing advanced skills in them.
TRAINING AND DEVELOPMENT METHODS[654]
Training and development is coordinating or delivering programmes to fit people for the roles required by the organization now and in the future. To achieve a desired goal the best training and development method should be used. . When selecting employee training and development methods, it is vital to keep in mind the learning process. The various methods are discussed below;
Classroom lecture method-it is commonly used as it is cost-effective. It is timesaving as it covers a maximum number of people in a short period of time. It involves a speech by an instructor. The successful delivery of this method is the lecture –cum- demonstration method in which the lecturer reemphasizes information by displaying the same action. This often includes another method-Group Discussion method, here more ideas are generated in this method. Precaution must be taken to ensure all members participate.[655]
Simulation exercises method-They are a group of training devices of varying degrees of complexity that mock-up the real world. They range from simple paper mock-ups of mechanical devices to computerized creations of total environments. The advantage of this is that they learn without damaging the equipment or human life or facing the risks involved in actual performance.[656]
Case study method-it is a written down, narrative description of a real situation or incident relating to an organization and its business, depicting any problem that participants could face in their employment. The trainees are expected to propose solutions .It helps to develop analytical, reasoning and problem-solving skills of the participants.[657]
Outward Bound Training (OBT) Method-As part of OBT, managers and other staff members meet and mingle as teams away from the office. They test their survival skills and learn about their own personality and hidden potentials for creativity, cooperation and leadership. Participants get opportunities to learn their limits and capabilities. Participants irrespective of their official position and seniority would have to learn to be natural in their behavior and get rid of masks worn in an office situation. It is an expensive method and the learning might not be transferable to others or to other situations.
Vestibule Training Method-This kind of training takes place away from the production area on equipment that closely resembles the actual ones used on the job. It is a type of off-the-job training in which employees get training in a realistic job setting but in a location different from the one in which they would be working. The method is used frequently for training typists and bank tellers. The word ‘vestibule’ means entrance. Thus vestibule training serves to facilitate full-fledged entry into job. An advantage is that it removes the employee from the pressure of having to produce while learning. Disturbance of production or supervisor during training is minimized. The disadvantages include the extra investment on equipment and additional persons to be employed as trainers.
Apprenticeship Training & Internship Methods-It combines classroom instructions with on-the-job training. It is a method in which trainees at a novice stage called ‘apprentices’, work under the guidance of skilled, licensed instructor and receive lower pay than workers. The method is a combination of education and employment and is aimed at preparing workforce with certain levels of qualification to meet the growing needs of the industry. The method develops special skills like mechanical, electronic and training among others.[658]
Work shadowing & Mentoring Methods-This training methodsare chosen while preparing a second-line leader to take up the role of the headship. The best way to be trained for a future executive position would be through direct participant observation of the crucial events that take place in the present incumbent’s work life. The trainees are made to remain in the company of the role model whose work is to be learnt by the trainees. The relationship may be formally planned or it may develop informally.[659]
Programmed Instruction Method (PIM)-PIM provides instruction without the face-to-face intervention of an instructor. To ensure a sequential approach to learning, instructions are designed in such a way that all future learning depends on acquisition and retention of previous learning. With this method, information is broken down into small portions called ‘frames’. The learner reads each frame in sequence and responds to questions designed to verify learning. Based on the answers given by the trainees they are provided with immediate feedback on response accuracy. If the learners have got all the answers right, they proceed to the next frame. If not they repeat the frame. Primary features of this approach are immediate reinforcement and the ability of learners to proceed at their own pace. Programmed instructions may be presented in a book or in computers.
Job Rotation Method-This method of training involves the shifting of trainees from one job to another so as to widen their exposure and enable them to obtain a general understanding of the totality of the organization.
Computer-Based Training (CBT) Method-CBT is a technology-driven training method that takes full advantage of the speed, memory and data manipulation capabilities of the computer for greater flexibility of instruction. It involves the trainee sitting in front of a computer terminal rather than listening to an instructor. Learning is enhanced through presentations combining automation, stereophonic sound, full motion video and graphics.[660]
Behavior Modeling Method-This method involves emulation of behavior from a reference group or a role model whose behavior is shown live before the trainees or by using videotapes or Compact discs (VCD). The method entails recording and producing events or situations with clear descriptions in order to cover certain subjects.[661]
Other methods include:
Development Centre Method
Large Scale Interactive Events (LSIE) Method
Personal Coaching
Sensitivity Training or T Group Training or Laboratory training Method
Management Games Method
Role playing method
In -basket Training (IBT) Method
PROCESS OF TRAINING AND DEVELOPMENT
Organisation’s goals and objectives
An organization must first assess its objectives: Whether the human resource can provide the skills, knowledge, abilities, and other personal attributes that are necessary. To the extent that they may lack these attributes, training may be required. The assessment of training needs is perhaps the most important step in the process.
The training program should relate not only to the specific needs identified through the company and individual assessments, but also to the overall goals of the company. The objectives of the training should be clearly outlined, specifying what behaviors or skills will be affected and how they relate to the strategic mission of the company. In addition, the objectives should include several intermediate steps or milestones in order to motivate the trainees and allow the company to evaluate their progress.
Needs assessment
Needs assessment diagnoses problems and future challenges to be met through training and development. Organizations may end up spending huge sums of money on training and development, therefore it must conduct a needs assessment to avoid making errors, this process might reveal what the employees need and it may even be less costly for example (selection, compensation and job redesign).[662]
Therefore the organization must spend a reasonable amount of time analyzing its own needs together with those of its employees on personal individual levels.
Task and skill analysis
In addition to finding out what the organization and the employees need , it is necessary to identify what tasks are need on each job and which knowledge skills, and abilities are necessary to complete this job[663]
Selection of Training Goals: Once training goals have been established, it is necessary to determine how to conduct the training. This includes the selection of training techniques and trainers for the program. Additionally, employees’ ability should be considered when designing the training program.
Selection of Training Methods: Great care must be exercised in choosing effective instructors or trainers. Personal characteristics (such as the ability to speak well, to write convincingly, to organize the work of others, to be inventive, and to inspire others to greater achievements) are important factors in the selection f trainers. HR specialists or hired outside consultants who report to the HR manager or other top managers are also used to perform a needs analysis and to conduct the training.
Selection of application of Evaluation Design: At the same time, the means to evaluate the program must be established. The means selected for evaluation must be sensitive to the type of training conducted, the training techniques used, the training program goals and the initial training needs. The evaluation should be made by comparing the results (the benefits) with the objectives of the training and development program that were set in the assessment phase. It is easier to evaluate the results of some programs (for example, typing) than others.
Selection of trainees
After needs have been assessed, trainees must be selected and training goals established. [664]Trainees should be selected with care, ensuring that they and the organization will benefit from their inclusion in the training program. The training goals should ensure that the assessed needs will be served.[665]
Application Of Training Techniques: Probably the most widely used method of training is on the job training. It is estimated that more than 60% of training occurs on the job. The employees are placed in the real work situation and shown the job and the tricks of the trade by an experienced employee or the supervisor. One approach to systematic on the job training is the job instruction training system developed during World War Ⅱ. In this system the trainers first train the supervisors, who in turn train the employees.
Monitoring Of Training Techniques: As training is being conducted, provision must be made for ensuring that the program is proceed as planned. Without monitoring the training process, it is possible that a well-designed training program may be conducted improperly or otherwise fail to accomplish its goals. In sum, formal training and development have been shown to be more effective than informal or no training and development.
EVALUATION OF TRAINING AND DEVELOPMENT
The criteria used to evaluate training depends on the objectives of the program and who sets the criteria: management, trainers, or the trainees.
Proper training and development programmes start with identification of training and development needs and ends with follow up and evaluation of training to ensure that training programs are effective. Evaluation is to establish whether it has met all the objectives set out at the beginning and if the choice, method, value and the trainer who conveyed the message did it correctly. The trainees need a follow up to be able to deliver and enhance their skills and performance. Other purposes for follow up and evaluation include;
ü To ensure that the rules to policy guidelines and documentation of training and development efforts.
ü To decide who should participate in future programme.
ü To assess which participants gained the most or the least from specific programmes.
ü To gain practical insight in order to design, develop and deliver more effective future programmes.
ü To check the extent of transfer of learning i.e. the extent to which a trainees applies to his/her job.
ü To determine if the training programme maps to the needs the trainees.
ü To establish whether the training and development objectives are being met.
ü To determine the effectiveness of the different components of training and development programme (e.g. contents, training aids, facilities and environment, programme schedule, presentation style, the instructor etc.)
ü To determine whether the training and development programme substantiates the cost.
Criteria for Evaluation
There are three types of riteria: internal, external, and participants’ reaction.
Ø Internal criteria are directly associated with the content of the program i.e. whether the employee learned the facts of guidelines covered in the program.
Ø External criteria is focused at the ultimate purpose of the programme i.e.improving the effectiveness of the employee. Possibly external criteria include job performance rating, the degree of learning transferred from training and development sessions to on-the-job situations, and increases in sales volume or decreases in turnover.
Ø Participants’ reaction, or how the subjects feel about the benefits of a specific training or development experience, is commonly used as an internal criterion.[666]
Trainees may be asked to evaluate the program by pointing out what they liked and didn’t like about the training. This can be done by filling in performance forms; through that they may give recommendation which may be used to enhance the training programme.
Follow up may be done through issuance of practical exercises which may require the trainee to use the skills acquired during training to see if they benefitted, further, examinations may also be administered.
The different models are used by organisations to evaluate training efficiency according to the nature and budgets of the business. Some of the frequently used models are;
Kirkpatrick Model:[667]This model focuses on measuring four kinds of outcomes, rather, outcomes are in four levels that should result from a highly effective training programme. The model has four parts: behaviour, results, reaction and learning. Reaction- evaluates how participants feel about the programme they attended. Learning- evaluates the extent to which the trainees learned the information and skills, Behaviour- evaluates the extent to which their job behaviour had changed as a result of attending the training. Results- evaluates the extent to which the results have been affected by the training programme.
CIPP Evaluation model:[668] It has four phases of evaluation: context evaluation, input evaluation, process evaluation and product evaluation. It’s based upon the view that the most important purpose of evaluation is to improve the functioning of a programme.
Context evaluation: Involves evaluation of training and development needs analysis and formulating objectives in the light of these needs. Aimed at determining the extent to which the goals and objectives of the programme matched the assessed needs of the organisation, whether needs assessment is accurately identified an actual and legitimate need of organisation and relevant work culture. Context evaluation includes the work undertaken by employees of an organisation.
Input Evaluation: Input evaluation entails an examination of the intended content of the programme. It is designed to assess the scope to which programme strategies, procedures, and activities support the goals and objectives identified in the needs assessment and context evaluation. An input evaluation is therefore an assessment of the programmes action plan. Such an evaluation helps in prescribing the specific activities and strategies and procedures and to ensure that it has been chosen the best approach in terms of the assessed needs and goals and objectives that has been identified. It involves evaluation of determining policies, budgets, schedules and procedures for organising programme.
Process Evaluation: A process evaluation is the critical aspect of programme implementation. It involves evaluation of preparation of reaction sheets, rating scales and analysis of relevant records. Process evaluation is a continual assessment of the implementation of the action plan that has been developed by organisation. It is an ongoing and systematic monitoring of the programme. A process evaluation provides information that can be used to guide the implementation of programme strategies, procedures and activities as well as a means to identify successes and failures. The objectives of process evaluation are;
§ To provide guidance for modifying or explicating the programmes action plan as needed, particularly since not all aspects of the plan can be anticipated or planned in advance;
§ To assess periodically the extent to which programmes personnel are performing their rules and carting out their responsibilities;
§ To provide an extension record of the programmes, how it was implemented and how it compares to what was intended.
§ To provide feedback to organisation and their employees about the extent to which the activities are on schedule are being carried out as planned and using time and resources in an efficient manner.
Product evaluation: It involves measuring and interpreting the attainment of training and development objectives. In other words it can be said that the purpose of product evaluation is to measure, interpret and judge[669]the extent to which an organisation’s improvement efforts have achieved their short term and long term goals. It also studies both intended and unintended consequences of improvement efforts.
CIRO approach: [670]It’s based on the evaluation of four aspects of training: context, input, reaction and outcomes. The CIRO model focuses on measurement both before and after the training has been carried out. The strength of the CIRO model is that the objectives (context) and the training equipment (input) are considered. Context Evaluation focuses on factors such as the correct identification of training needs and the setting of objectives in relation to the organisation’s culture and climate. Input evaluation is concerned with the design and delivery of the training activity. Reaction evaluation looks at gaining and using information about the quality of training experience. Outcome evaluation focuses on the achievement gained from the activity and is assessed at three levels: immediate, intermediate and ultimate evaluation. Immediate evaluation attempts to measure changes in knowledge, skills or attitude before a trainee returns to the job. According to Santos and Stuart (2003) intermediate evaluation refers to the impact of training on the job performance and how learning is transferred back into the workplace.
Lastly, ultimate evaluation attempts to assess the impact of training on departmental or Organisational performance in terms of overall results.
Phillip’s Evaluation approach: In the past decade, training professionals have been challenged to provide evidence of how training financially contributes to business. Phillips (1996) suggested adding another level to Kirk -Patrick’s four level evaluation approach to calculate the return on investment (ROI) generated by training. According to James and Roffe (2000), Phillip’s five level evaluation approaches translate the worth of training into monetary value which, in effect addresses ROI. Philip’s framework offer trainers a logical framework to view ROI both from human performance and business outcomes perspectives. However, the measurement goes further, comparing the monetary benefit from the programme against its costs. Although the ROI can be expressed in several ways, it is usually presented as a percent or cost/benefit ratio. While almost all HRD organisations conduct evaluations to measure satisfaction, very few actually conduct evaluations at the ROI level, perhaps because ROI is often characterized as a difficult and expensive process.[671]
Since Kirkpatrick established his original model, other theorists and indeed Kirkpatrick himself, have referred to the fifth level, namely ROI.[672] But ROI can easily be included in Kirkpatrick’s original fourth level-Result. The inclusion and relevance of the fifth level is therefore arguably only relevant if the assessment of return on investment might otherwise be ignored or forgotten when referring simply to the “Result” level.
There are some other training approaches and models. As it has been discussed earlier that training evaluation itself is less touched part of training and development, these methods have more theoretical content but minimal practical application.
Kaufman’s- a theorist explains that the five level evaluation model extends the scope of training impact evaluation beyond the organisation, it comprises of how training benefits the society and the surrounding environment in the organisation.
LEGAL FRAMEWORK OF TRAINING AND DEVELOPMENT.
The framework that governs training and development in Kenya is scattered through various legislation, policies, conventions and charters that are binding to Kenya.
The Employment Act of 2007
According to this Act, an employee is a person employed for wages or a salary and includes an apprenticeship and an indentured learner.[673] A Contract of apprenticeship and indentured learnership under the Act, as read together with The Labour Relations Act means contract of service where there is an obligation on the employer to take all reasonable steps to ensure that the employee is taught, and acquires the knowledge and skills of that industry, by means of practical training received in the cause of the employee`s training and employment. For example in the legal field, one is required to do pupilage which is basically a practical training on the procedure in the legal profession.[674] When employees receive such practical training in the industry in which they are in, it improves their quality of their work thus raising the organisation’s profits due to customer satisfaction and efficiency of the workers.
The Industrial Training Act
Section 2 of the Act defines an employee as a person employed for wages or salary and includes an apprentice, indentured learner, temporary, seasonal and casual worker. A person who has completed any period of compulsory education required by law and has in case of a trade or occupation in respect of which a scheme has been made, the qualifications prescribed under that scheme qualifies for training under the Act.[675] An apprentice means a person bound by a written contract to serve an employer for a determined period of not less than four years or lesser period with a view to acquiring knowledge including theory and practice of a trade in which the employer is reciprocally bound to instruct that person. This places a responsibility on the employer to facilitate training or instruction of such employees. Therefore employers conduct training and career development programmes to improve the quality of the services they provide and to better their skills in the industry which results in the satisfaction of the customers with goods and services of reasonable quality.[676] This Act establishes the National Industrial Training Board is established under section4 of this Act. The Board may establish training committees to exercise functions of the Board in relation to training in specified industries.[677]
The Board performs various duties and functions and one of them is to secure the greatest possible improvement in the quality and efficiency of training of personnel engaged in industry.[678]
One of the functions of the committee formed by the Board is to submit to the Board proposals for the raising and collection of training levy on employers,[679] the Minister may then make a training levy order for the purpose of giving effect to proposals submitted by the board and approved by him.[680]
Sec.7A is on the requirement of obtaining permission to train.[681]
PROFESSIONAL POLICIES AND REGULATIONS
TheAdvocates (Continuing Professional Development), Regulations 2014
Continuing professional development in the legal field is a programme that requires advocates to attend continuing trainings in the field, the purpose of which is to,
(a) maintain, improve and broaden the professional knowledge and skills of advocates;
(b) to further develop the personal qualities of advocates required for the execution of the advocates' professional and technical duties;
(c) to encourage constant reflection, learning and the maintenance of a broad outlook by advocates to maintain high professional standards;
(d) reassure recipients of legal services and the public of the high standards of training, knowledge skills and expertise of advocates; and
(e) To keep advocates relevant and informed of the developments in the practice of law.
The training is in the form of workshops, lectures, conferences, discussion groups, symposium, colloquium, multi-media based or website based program or the research and preparation for articles published in law journals.[682]This enables Advocates in Kenya to acquire, maintain and enhance their capacity to provide competent legal services within a framework of the highest ethical standards of professional behaviour and etiquette to ensure that throughout their career, they keep abreast with law and jurisprudence, maintain the ethics of the professionand enhance the standards of the practice of law.[683] Therefore, advocates attend these trainings which are mandatory to meet the minimum required points per year, which is five points,[684] to be eligible to renew their practicing certificated for the following year. This keeps the advocates abreast with the emerging issues and raises their skill and as a result raising the quality of services to the customers.
Apart from the Continuous Professional Development in the legal field, there is also the Advocates Training Program in Kenya, governed by the Kenya School of Law Act,[685] which lawyers are mandated to take in order to practice in the country. This course trains lawyers on advocacy skills so as to raise their professional standards and knowledge in practice and it also carries out the Continuous Professional Development in collaboration with the Law Society of Kenya.[686] Professional training is not limited to advocates only but also judicial officers.
Law Society of Kenya Act Cap 18 Laws of Kenya.[687]
The Law Society of Kenya is established under sec 3 of this Act. Section 4 of this act is on the objectives and one of these objectives is to maintain and improve the standards of conduct and learning of legal profession. This is done in collaboration with other institutions such as The Council of Legal Education and The Judicial training Institute. Council for Legal Education is mandated with monitoring and approving course provision of independent university campuses offering legal education and also accrediting each of those institutions to ensure that the standards and quality of training they offer is up to par and competitive.
Besides, the Judicial training institute is responsible for preparing and implementing programs for continuing education and training for judges and other judicial officers. It derives its mandate from the Judiciary and further to the above stated function; it is also tasked with research and capacity building within the judiciary.[688]
The Medical Practitioners and Dentists Act[689]
Kenya Medical Practitioners and Dentists Board is a statutory body established by this Act. Primary role of the board is to determine, license and maintain an annual register of duly qualified doctors and dentists. To achieve this, the board regulates and supervises the general practice of medicine and dentistry, conduct of internship and the academic programs of medical school programs.[690] It provides for Continuing professional development (CPD) which is a training that leads to broadening of knowledge and skills and enhancement of personal qualities related to continuous improvement in the performance of professional duties of the members of the board. This is done to ensure professional competency at all times as a way of improving patients care. These rules entitles the members of the profession to training in the field and career development to improve efficiency in their services and to keep them informed and in control of the emerging jurisprudence in the field.
Teachers Service Commission Act[691]
This Act is established under Article 237 of the constitution of Kenya 2010. Though its main objective is to hire teachers and take care of their welfare, it is also tasked with providing training to its members for different activities and different roles. One of the roles of this Commission is to review the standards of education and training of persons entering the teaching service.[692]
As a result, they use this as a part of the criteria to facilitate promotions, transfers among many other functions. This is done in collaboration with other stakeholders including Teachers Unions and The government.
INTERNATIONAL FRAMEWORK
According to Section 3 of the Judicature Act, the Constitution is the highest source of the law in Kenya. Article 2 of the Constitution of Kenya further provides that the Constitution is the supreme law of Kenya, and all the Customary International law and the Conventions and Treaties in which Kenya is a party to forms part and parcel of the laws of Kenya under Article 2(5)(6). In this context, various conventions and treaties that promote training and development are binding to Kenya if Kenya is a party to them.
The African Charter on Human and Peoples Rights
According to article 22 of this charter, All peoples shall have the right to their economic, social, cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind. It further states that States shall have the duty, individually or collectively, to ensure the exercise of the right to development.
This article obliges state governments to put measures to ensure that they realize and ensure its nationals right to development. The Charter is not specific on the kind of development in reference but social-economic development is one of its objects and is therefore included. States can achieve this through the National Industrial Training Board which may establish training committees to exercise functions of the Board in relation to training in specified industries,[693] or encouraging professional bodies to conduct training and development of their members or even conducting training itself in various industries.
Protocol To The African Charter On Human And Peoples' Rights On The Rights Of Women In Africa
The Protocol entitles every woman to the Right to Education and Training[694] and requires state parties to take all appropriate measures to eliminate all forms of discrimination against women and guarantee equal opportunity and access in the sphere of education and training;and take specific positive action to promote literacy among women promote education and training for women at all levels and in all disciplines, particularly in the fields of science and technology. Therefore the right of women to get equal chances as men in training and development has been emphasised and protected by this protocol. In Kenya, some gender-based organisations particularly on women conduct training for their members to make women more competitive with men and to give women the same platform in learning as men. For Example, FIDA-Kenya is such an organisation and conducts seminars, workshops and trainings to its members to keep them competitive in the county and to keep them informed about the emerging jurisprudence and issues in the legal field.
International Labor Organization Convention 142 of 1975 on Human Resource Development.[695]
Article 1 of this convention requires each member to adopt and develop comprehensive and co-ordinate policies and programs of vocational guidance and vocational training, closely linked with employment, in particular through public employment services in which shall be pursued in the appropriate national conditions of each country. These shall take into account;
o (a) employment needs, opportunities and problems, both regional and national;
o (b) the stage and level of economic, social and cultural development; and
o (c) The mutual relationships between human resources development and other economic, social and cultural objectives.
According to its article 3 (2), the state should impact information and guidance covering the choice of an occupation, vocational training and related educational opportunities, the employment situation and employment prospects, promotion prospects, conditions of work, safety and hygiene at work, and other aspects of working life in the various sectors of economic, social and cultural activity and at all levels of responsibility. It also requires each Member to gradually extend, adapt and harmonize its vocational training systems to meet the needs for vocational training throughout life of both young persons and adults in all sectors of the economy and branches of economic activity and at all levels of skill and responsibility.[696]
States are clothed with the role of ensuring this is achieved in their local or national laws and policies and through professional bodies as established above. However, up to now, the country lacks a national policy on industrial training and attachment.[697]
o Despite the absence of one concrete and conclusive framework in Kenya on the framework, the various bodies and laws govern the training and development process in the country and the various professional bodies’ rules and regulations do guide human resource management in conducting the training as it improves organizational output thus positively building the economy of Kenya. The challenge that Kenya is facing in this however is that apart from a few fields such as the legal and medical where attending such training is a prerequisite in renewing one’s practicing certificate, other training institutions in general do not strictly enforce the curriculum requirement on industrial attachment since it is not assessed and there is no set standards for the same.[698] Also, Industrial training and attachment in Kenya is managed under various legal and institutional frameworks as seen above, which are scattered under various Government Ministries, departments, and agencies and as a result cause disharmony in the implementation of industrial training programs in the Country leading to compromised quality, exploitation of trainees, interns and attachés; causing legal risks to participants in the industry and confusion in the labor market.[699]
LIMITATIONS OF TRAINING AND DEVELOPMENT
Limitation means the factors that decapitate the efficiency and effectiveness of a training and development process. One of the goals of training or development is that the employee’s performance is to improve tremendously. Due to increased quality of output by the employee it is therefore expected that the entire firm or company will achieve its set goals and objective.
However, this is usually the ideal case. Some of the factors include
Mismatch of Needs, Skills and Expectations
For training and development to be effective and productive the human resource management matches every other employee’s skill and to the needs they may have (deficiencies)[700]. The HRM will also outline the expected outcome from the employees once the training is done.
However, at times especially in large firms where the number of employees is large, accurately matching the skills to the needs of the employee and thereafter the expectations is highly unlikely. As a result therefore wrong needs and expectations will be achieved that will not eventually improve the employees performance and effectiveness of handling their job. The unreliable and inconsistent outcomes consequently hinder the company from achieving it set targets too.
Undefined Objectives
Prior to a training or development exercise, the HRM should clearly spell out the objectives of the training and development. This will be what each trainee should have learnt or can do at the end of training or development period. These objectives need to be explained with clarity to the employees/trainees. Failure to this, the employees will misunderstand their objectives at the end of training and the training or development shall not achieve the objectives for which it was set.
Inadequate Funding
Costs for training or development are high[701]. The costs are distributed over a number of variant categories ranging from training needs analyses, learning design and development, acquisition, delivery, travel, hotel services, food, evaluation, functions of training, salary and benefits of the participants, lost opportunity cost, wasted training investments and lost productivity.
For an effective training these costs have to be put in to consideration during allocation of the budget. However only the companies that have high capital allocations can comfortably afford to cater for most if not all the above highlighted costs. As for the companies with low capital resources addressing the costs is a toll order and as such use of non-standardized training or development methods or approaches is used[702]. Knowledge acquired by employees in such a half haphazard manners when applied to real life situations can be problematic.
Post-training sustainability
After training or development of an employee there are set goals or expectations that they are supposed to achieve. In most cases post-training results vary. Some employers perform better while other record no change between pre-training or development and post. Over time also even those employees whose performance improved after training or development fall into a plateau phase.
Lack of support from trainees
A training or development will be characterized by a trainer and trainee. Whereas most trainers will be dedicated to offering new skills, most trainees show less commitment.
Presently a lot of companies have embraced e-learning as a training and development source and method. These companies spend heftily in purchase e-learning materials for their employees to educate themselves at their own time. The employees will even be given further freedom of choosing the kind of skills they would like to acquire and train in.
Unfortunately most employees will not even attempt to acquire any further training not unless compelled despite their employers having spent heavily to provide the training forums.
In addition, often training comes with examinations or tests at the very end to judge if the employee has understood what has been taught. As such most trainees only focus on memorizing the content and not really understanding the content and its application. As a result most employees will score highly in the tests but will still underperform workwise or in as far as producing results is concerned[703].
Lack of Support from Management
Most managers or supervisors do not support training and development of junior staff. This is viewed as wastage of time when the employee is to be giving their input at their work desk.
For instance, a law firm with a conveyancing department, here most advocates’ level of performance is determined by how much legal fees the advocates bring in, in terms of clients and there turnaround time in achieving the results expected by the client in this case say a charge. It will be hard for the head of conveyancing department to release a number of his juniors for even two weeks for training as the output will be low due to “time wasted” during training yet his performance is measured against cash flow inwards.
This lack of support also by management can be attributed to fear of competition in the event the junior employees become better and efficient performers’ than the ones in management. Most young people are aggressive and don’t have a lot of responsibilities that will tend to derail their performance. Therefore a good platform of training and development most of them perform better than their senior counterparts in management positions who are used to routine and have no enthusiasm in doing work and helping the firm or company achieve its goals.
Miscommunication between trainer and trainee
Communication in a training or development session is of key importance. There is need to ensure that the trainer is an effective and concise communicator. Miscommunication would mean that the trainees get the wrong information or wrong application of a skill or even the wrong set of objectives to be achieved at the end of the session. This will result in ineffectiveness of the training or development as knowledge acquired shall not be in line with what the HRM had outlined as objectives and expected outcome.
Poor training governance structure
Larger firms categorize how training and development will be carried out taking into account different departments and their needs or geographical zones of their offices. For instance some will focus on training of the training of the IT Department or say the general training of the employees working in a dessert area or a particular town. This is because each department or region will have different training or development needs.
Dealing with this departments and regions as a single block will not be effective as particular training needs of each department will not be addressed, unless it’s based on general developments and trends.
Resistance to Change
Since time immemorial man has been seen to be resistant to change[704]. To sum, the objectives of a training or development session is to basically see a positive change in performance or service delivery by the employees. The firm also in the end enjoys an increase in output and achievement of its core goals. New ways and methods of problem-solving will need to be adopted after a training and development session and put into practice. However, a lot of employees would rather stick to their old “stress less” ways of handling their duties and roles that they are already used to. This can be attributed to the fear of unknown and ability to adapt to a new system[705] among others. As such once the employees relapse to their norm of doing things then it becomes difficult for the company or firm to enjoy the results of training and development for which it has spent heavily for.
Poor training infrastructure
Anumber of organisations do not take the training or development of an employee seriously. This therefore means little investment is channeled towards training and development and what is available is mediocre training and development facilities. This in turn demoralizes the employee from indulging in training or development thus rendering the organisation systems redundant and out of date.
In conclusion, employee training and development may be viewed as an optional, time consuming ,costly venture in the short run. However, in the long run it is an investment keeping in mind that human capital is the most valuable resource.
CAREER DEVELOPMENT
introduction
The nature of careers is changing. Traditionally, a career in a single organization was characterized by hierarchical progression, managed on a planned basis by the organization. This concept is gone (Arthur & Rousseau, 1996). Organizations now have flatter structures and need to be flexible, fluid and cost effective in the face of an uncertain and unpredictable future. Thus, they can no longer offer long- term career progression in return for loyalty, commitment, and adequate performance, which was an unwritten deal and part of the traditional psychological contract.
Definition of Career Development
Career development is the lifelong process of managing progression in learning and working. The quality of this process significantly determines the nature and quality of individuals’ lives i.e. the kind of people they become, the sense of purpose they have and the income at their disposal. It also determines the social and economic contribution they make to the communities and societies of which they are part (Watts, n.d.).
An individual’s career development is a lifetime process of lifelong learning that encompasses the growth and change process of childhood, the formal career education at school, and the maturational processes that continue throughout a person’s working adulthood and into retirement ( Schreuder & Coetzee, 2006). The Memorandum on Lifelong Learning published by the Commission of the European Communities (EU) defines lifelong learning as: “All purposeful learning activity undertaken in an on-going way with the aim of improving knowledge, skills and competence.” (2000). It is likely that very few people undertake learning projects for the sheer pleasure of learning. Most look to their learning to provide useable and useful ways of relating to their world and moving toward their own “preferred future”. This includes what individuals regard as ‘advancements’ in their chosen careers. When learning is not connected to some aspect of building the future that people need or want, they tend to lose interest in this learning and look elsewhere for something more connected to their preferred futures.
The relationship between Career Development and Lifelong Learning
Career development is not only a private good but also a public good. This is true in three respects. First, it is important for effective learning. If individuals make decisions about what they are to learn in a well-informed way, linked to their interests, their capacities and their aspirations, and informed realistically about the opportunities to which the learning can lead, then they are likely to be more successful learners, and the huge sums of public money invested in education and training systems are likely to yield much higher returns.
Second, it is important for an effective labour market. If people find jobs and career paths that utilise their potential and meet their own goals, they are likely to be more motivated and therefore more productive, enhancing national prosperity. Third, career development has an important contribution to make to social equity, supporting equal opportunities and promoting social inclusion. It can raise the aspirations of underprivileged groups and give them access to opportunities that might otherwise have been denied to them.
Career development is crucial to the success of lifelong learning policies. Governments regularly state that such policies need to be significantly driven by individuals. The reason is simple: schooling can be designed as a system, but lifelong learning cannot. It needs to embrace many forms of learning, in many different settings. It is the individual who must provide the sense of impetus, of coherence and of continuity. This places career development centre stage. It means that if, as many governments believe, lifelong learning is crucial to their country’s economic competitiveness and social well- being, then their country’s future is significantly dependent on the quality of the decisions and transitions made by individuals.
Career Development in the Legal Profession
The legal profession provides a wide range of career development opportunities after the Advocates Training Programme (ATP) offered by the Kenya School of Law (KSL). Upon successful completion of this training, an individual is admitted to the Bar and becomes an advocate.
According to Black’s Law Dictionary, an advocate is “one who assists,
defends, or pleads for another; one who renders legal advice and aid and pleads
the cause of another before a court. This is a person learned in the law, and
duly admitted to practice who assists his client with advice, and pleads for
him in open court.”
An advocate is also defined as any person whose name is duly entered upon the
Roll
of Advocates or upon the Roll of Advocates having the rank of Senior Counsel (Advocates Act). A practising advocate is one who has been admitted as an advocate, his name is the Advocates Roll and has a valid practicing certificate (Advocates Act). An advocate can then pursue various career routes in the legal profession. The routes include:
Advocate in a law firm/ Private Practice
Working in a law firm is probably the most popular route in the legal profession. An advocate may join a law firm to practice or also set up his or her own law firm which shall be under which, name, he or she shall represent clients. Until a few years ago, advocates could not set up their own private practice up until 2 years after being admitted to the Bar and working under a senior advocate. Now a newly admitted advocate can currently set up a law firm.[706] However, legal analysts have discouraged this career move on grounds of limited or no work experience for efficient running of a law firm.
Law firms can focus in various areas of legal practice. For instance: civil law, criminal law, environmental law, intellectual property law, maritime law, labour law, tax law among other many varying areas of law.
Legal Officer/ In house counsel
Lawyers can choose to work in house for a company, i.e. in the financial services, manufacturing, retail, construction, media, and transport and telecommunications sectors. A legal officer handles the legal affairs of a corporation. The individual would have various responsibilities depending on the organization concerned but may include:
· Administrative duties – these consist of providing legal advice to the organization on the most beneficial approach to pursuing business ventures or preventing and tackling various legal disputes that the organization may be a part.
· Clerical duties – these consist of drawing various contracts, agreements and other legal documents.
· Research duties – these include, research on various applicable laws and ensuring that the corporation complies with them.
In pursuing this route, most organizations require that an individual must have relevant experience in the field of law that may directly affect them. For instance, a good grasp and experience of environmental law may be crucial for a bottled-water manufacturing company.
As part of a comparatively small legal team within a much larger business, usually, one is faced with a constant stream of legal queries from all angles. Unlike private practice where you can pass work to another department if something is outside your area of expertise, a lawyer is expected to provide sound commercial advice and aside from that required to apply the law to a wider variety of issues – and understand the commercial consequences of their advice.
Secondly, they will be required to update non-lawyer colleagues on legal
updates that will have impacts on the business. Aside from that, they should
also be prepared to cover for their colleagues or be seconded to different
parts of the business for special projects.
The lawyer will also need a strong commercial acumen too since he or she will
be making decisions with the people who directly run the business, often
directors, and will be expected to offer practical solutions and clear cut
expectations of any legal implications. If a plan is unworkable, they will also
be required to come up with workable alternatives.
An issue of concern to is the fact that unless the institution publicises its
vacancies, the companies most likely recruits trainees from a pool of
candidates who already work there in various capacities, i.e. paralegal. Even
the aspiring trainees are usually advised to exercise discretion when trying to
obtain such contracts.
Good remuneration is one of the pluses of an in house training contract. In comparison with private practise, it is also important to note that the terms of pay for the salary at the junior end of the scale is more pleasing. However, compensation could be less as lawyers’ progress and gain seniority with the company. In house lawyers tend to have more control of their lives than their private practice counterparts.
Judicial officer
This can either be a magistrate or a judge. A magistrate is defined as a chief magistrate, a senior principal magistrate, a principal magistrate, senior resident magistrate, a resident magistrate or district magistrate (Magistrates’ Court Act). Each of these terms applies to a person respectively appointed by the Judicial Service Commission to act in the particular office (Constitution of Kenya). Applications are made to the Commission which then considers the requirements of the position which can include; for a resident magistrate position, the applicant must have more than 3 years of experience in private practice or other organizations. A judge means the Chief Justice and Deputy Chief Justice or a judge appointed under Article 166(5) of the Constitution or a judge of appeal appointed under Article 166(4) of the Constitution.
Company/Corporation Secretary
A company secretary Sec....Company Act 2015 is responsible for the efficient administration of a company/corporation, particularly with regard to ensuring compliance with statutory and regulatory requirements and for ensuring that decisions of the board of directors are implemented. Even though they are not strictly required to give legal advice, they must have a thorough understanding of the law. This position requires that an individual be an advocate of the High Court of Kenya, be a certified public secretary and a member of the Institute of Certified Public Secretaries of Kenya among other qualifications.
Lecturer
If an individual prefers academia, he or she may take up teaching law in an educational institution. Most academicals institutions will require that the individual pursues other teaching qualifications in addition to the legal qualifications attained.
Legal Journalist
An individual may also become a legal journalist. A legal journalist writes stories that are of interest to the legal profession. This route requires that an individual takes up journalism courses after gaining reasonable experience in legal practice.
State Counsel
A state counsel can be an advocate in the Office of the Attorney General or an advocate or state prosecutor in the Office of the Director of Public Prosecution.
According to Paula Nailon, transitioning from law school into a first official legal job is no easy task and the desire is to be exemplary not merely good advocates. So much depend on the bosses, senior advocates and employers to provide the essential training and ultimately bear the burden of professional development (2005). However, in as much as the responsibility is solely theirs, there are particular issues that would curtail the realization of this goal since rising to excellence does not come naturally. One has to input a lot of effort. One has to work, work extra hard to build legal knowledge and experience. What is it that they must do in order to achieve this?
Christina Plum, chair of the ABA Young Lawyers Division, selected as a member service initiative a project presenting strategies that a young lawyer can use to maximize their success.
They include:
a) Personal Review - One should reflect upon the skills and qualities of the attorneys they admire. In so doing, they will learn more about areas of law and kinds of projects they are passionate about; environments, interactions and relationships that are best for them; skills and areas for improvement; and personal interests and values that can give one the peace of mind required.
b) Planning ahead - Creating a professional life is a participative process. It is important to reflect on your experiences and values. Then write in detail, including measurable goals and specific action items.
c) Embrace diversity. Maintain an attitude of openness to take advantage of opportunities that arise, whether large or small, and relevant or seemingly removed from your career development. Before committing, determine each opportunity's compatibility with your overall goals and gauge whether you have time to fully commit to it.
d) Develop meaningful relationships -As the concept of "emotional intelligence" becomes widespread, the successful associate will quickly get to know everybody in the office, find common ground with them, learn how to relate positively with their personalities and how to move together to accomplish the firm's goals. This involves learning how to deal with problems that arise, knowing when to seek help from others and patting each other on the back for jobs well done while respecting the differences.
e) Find mentors – mentors give insight by sharing information about their own experiences and the realities of practice. Finding one ensures devotion of their` own energies to the continued success of the relationship.
f) Get involved - one cannot build a reputation for excellence by being passive. The only way to show promise of future client development is by becoming actively involved in the firm.
Career Development Objectives
Career development has become primary activity of organizations in order to create a pool of talented employees as well as enhance their career satisfaction. Employees have their own personal desires and aspirations and need to effectively utilize their personal skills to attain their career goals and objectives. On the other hand, organizations have needs for staffing and meeting present and future human resource requirements. A career development system is a mechanism that takes both the parties in to consideration and helps them meet their requirements as well as objectives, which include:
1. Fostering better communication in organization
Proper communication is the lifeblood of any organization and helps in several big issues within an organization.
2. Assisting with career decisions
A career development system provides employees as well as managers with helpful assistance with career decisions. They get an opportunity to assess their skills and competencies and know their goals and future aspirations. It helps them give a direction so that they can focus on achieving their long term career goals.
3. Better use of employee skills
Since managers know their employee skills and competencies hence can put them at a job where they will be able to produce maximum output.
4. Setting realistic goals
This helps both employees and organization to understand what is feasible for them and how they can achieve their goals.
5. Enhancing the career satisfaction
Since organizations have to retain their valuable assets and prepare them for top positions in future, they need to understand their career requirements and expectations from their organization.
6. Feedback
Giving feedback on every step is also required within an organization to measure the success rate of a specific policy implemented and initiatives taken by the organization.
It also helps managers to give feedback for employees’ performance so that they can understand what is expected of them. (Management Study Guide).
A career development system can be very effective in creating a supportive culture in the organization and help employees grow and utilize their skills to achieve their desires and aspirations related to their career. Both organization and employees can meet their goals hand in hand.
Career Theories And Models
There are various career theories and models and no single one is sufficient to describe the broad field of career development. Career theories fall into one of the categories below which not mutually exclusively is useful and such include:
i. Theory of process
These relate to interaction and change over time more to say these are stages through which people pass.
ii. Theory of content
These theories relate to characteristics of the individual and the context they live in rather the influences on career development are thought to be either intrinsic to the individual or originate from the context in which the individual lives in.
iii. Theory of content and process
These have been formed in response to a need for theory to take into account both of these key areas. These theories encompass both the characteristics of individuals and their context and the development and interaction between them.
As time goes by, timeline has shown how career theories have evolved over time to bring about other theories and they include (Abernathy, 2000):
Holland’s theory
John Holland’s theory of career choice concludes that people prefer working in areas where those around them are similar to them. They search for environments that will let them use their skills and abilities and express their attitudes and values. Behaviour is determined by an interaction between personality and environment. Holland suggests that people can function and develop best and find job satisfaction in work environments that are compatible with their personalities (Osipow et al, 1996). Holland based his theory of personality types on several presumptions for instance; people tend to choose a career that is reflective of their personality. He classified this personality types and work environments into six types and work environments into six types that he labelled; realistic, investigative, artistic, social, enterprising and conventional. He suggests that the closer the match of personality to job, the greater the satisfaction. All types are each part of us. Holland developed a model that illustrates some key concepts: consistency, differentiation, identity and congruence. This theory places emphasis on the accuracy of self- knowledge and career information necessary for career decision making.
Although the theory appears to be applicable to both male and female workers, there is some question of gender bias in that most females frequently tend to score predominately in three personality types: artistic, social and conventional. Holland suggests that in our sexist society, females will display a greater interest in female- dominated occupations.
Bandura’s theory
Albert Bandura explains it is a learning theory based on the ideas that people learn by watching what others do which can also be referred to as “observational learning” or in simpler terms modelling and that human thought processes are central to understanding personality. Social learning theory has been applied extensively to the understanding of aggression and psychological disorders particularly in the context of behaviour modification. The most common examples of social learning social learning situations are television commercials. Commercials suggest that drinking a certain beverage or using a particular hair shampoo will make one popular and win the admiration of attractive people. Depending upon the component processes involved, one may model the behaviour shown in the commercial and buy the product being advertised. The highest level of observational learning is achieved by first organizing and rehearsing the modelled behaviour symbolically and then enacting it overtly. Individuals are likely to adopt a modelled behaviour if it results in outcomes they value (Bandura & Walters, 1963).
Super’s theory
One of Donald Super’s greatest contributions to career development has been his emphasis on the importance of the development of self- concept. According to Super, self- concept changes over time and develops as a result of experience as such, career development is life-long. Super’s theory included propositions relating to trait and factor theory, developmental psychology and personal construct theory from which Super derived his ideas about self- concepts and sociological theory. Super continued to revise and refine his throughout his life (Brown et al, 2002). Super recognize the changes that people go through as they mature. Socio- economic factors, mental and physical abilities, personal characteristics and the opportunities to which persons are exposed determine career patterns. People seek career satisfaction through work roles in which they can express themselves and implement and develop their self- concepts. Career maturity, a main concept in Super’s theory, is manifested in the successful accomplishment of age and stage developmental tasks across the life span.
Super’s contribution was the formalization of stages and developmental tasks over the life span. People change with time and experience and progress through different vocational development stages such as; awareness of the need to plan ahead, decision- making skills, knowledge and use of information resources, general career information, general world of work information and detailed information about occupations of preference (Roudebush, 2002).
Career Development Stages
The most significant way to analyze careers is to consider them in stages, although not so many careers may follow such an idealized pattern.
Progress from beginning point through growth and decline phases to a termination point is typical in one’s work life.
As a firm, we identified five career stages typical for most adults, regardless of occupation.
Exploration stage
This stage occurs prior to employment and ends as ones transitions from formal education programs to work, during this stage; we develop many expectations about our career, a number of them unrealistic. At this period, our choices are influenced by what we hear from our teacher, parents, relatives and friends; what we see on television and movies.
Successful career strategies involve trying a lot of potential fields to see what you like or don’t like. College internships and cooperative education programs are excellent exploration tools. As regards young lawyers, at this stage is when they become aware of their strength value and weakness and still they want to know more about themselves and do whatever it takes to be in touch with who they really are. In the legal field, this stage would be characterised by studying law in university and later going through ATP. It would also be characterised by participation in various clubs and associations ad internships during or after a law student’s undergraduate degree programme.
Establishment and achievement
It begins with the search for work, accepting your first fist job, learning the job and gaining the first tangible evidence of success of failure in the real world (DeCenzo, 2010). It involves fitting into the organization and understanding “how things are done around here”. At this stage, thorough induction is important. The new recruit should be provided with a real job and early challenges, support and feedback from immediate manager is also important. For lawyers it occurs at the pupillage stage, where they are not sure if they will be comfortable at a law firm, insurance or in the corporate world.
The achievement part of this stage is demonstrating competence and gaining greater responsibility and authority. It is at this stage that access to opportunities to advance career development becomes important.
Mid-career
It involves further growth and advancement or the maintenance of a steady state. It is accompanied by some form of re-evaluation of career and life direction (Torrington, D et al, 2008). Most people do not face their first severe career dilemmas until they reach this stage. Here, individuals may continue their prior improvements in performance, level off, or begin to deteriorate. At this stage organizational support remains important and it needs to involve the use of lateral paths, job expansion, and development as mentors of others, further training to keep up to date and the use of flexible reward system. An appreciation this stage in the legal profession begins from the associate level, one the rise through to a senior associate through to the position of a partner in a law firm. Depending on the law firm one can raise eventually to be a managing partner.
Although this stage is characterized by growth and advancement, Ivancevich (1996) observes that many people experience what is called mid-career crisis, such people are not achieving satisfaction from their work, and consequently they may experience psychological discomfort, he suggests that counteracting this crisis involves providing mid-career counselling[707] and alternatives[708].
Late career
The organization’s task in this stage is to encourage people to continue performing well. This is important since some sectors are experiencing skills shortages and there are moves by some companies to allow individuals to stay at work after the state retirement age.
DeCenzo, Robbins and Verhulst opine that those who continue to grow through the mid-career stage often experience the late career as a pleasant time with the luxury of relaxing a bit and basking in the respect of the less experienced employees. They go further to state that late career individuals frequently escape expectations of out-doing their previous performance, since their value to the organization typically lies heavily on their judgment, built up many years and through varied experience.
Employees who declined in the mid-career often realize in the late career that they will not have an everlasting impact or change the world as they once thought. These particular employees begin to look forward to retirement and opportunities for doing something different to survive their past glory. Such employees enjoy playing the role of elder statesperson and mostly they train younger employees while earning respect from them. Examples would be Retired Justice Kubo and Retired Justice Kuloba who after retiring from the bench went back to Academia and they are now lecturers at the Kenya School of Law.
Decline (Late Stage)
This is the final stage in one’s career, usually marked by retirement. Individuals in this stage step out of the limelight and relinquish a major component of their identity. For those who have seen their performance decline over the years, it may be a pleasant time; the frustrations associated with work are left behind. It is probably an easier transition to other life activities (DeCenzo, 2010).
ROLES IN CAREER DEVELOPMENT
Personal Development
Career planning comes from the individual as he knows what he really wants out of a career. The employee performance, interests, needs and abilities self-assessment, analyses different career options, decides on development objectives and needs, maps out mutually agreeable action plans with the manager and pursues agreed action plan. An organization may help by providing trained specialists to encourage and guide the employees (Carrell et al, 1992).
Career development is now the primary responsibility of an individual in an organisation (Cartin, 2004).Individuals should take charge of their own careers because there is
- Increasing rate of change in the organisations
- Increasing rate of change in the knowledge and skill required
- Career ladders are rapidly shrinking as re-organization flattens structures.
- Involvement in one’s own development fosters greater commitment to the process.
Individual Career Development Initiatives
Career development is directly linked to an individual’s growth and satisfaction and hence should be managed by the individual and not left to the employer (Cavanaugh, 1999). This could be through;
i) Self-Assessment
Self-Assessment is a process of clarifying your value through discovering the relationship between various occupations and your personality type and work style, interests, career values, and skills. Even if you have engaged in a self-assessment process early in your career, your interests may have changed over time and you may be eager to learn new skills. It is helpful to periodically engage in a thorough process of self-assessment throughout your career.
ii) Career Awareness
In the career awareness phase of career development planning, your goal is to understand how your value applies to opportunities within your organization and the wider world of work (London, 1988). Developing your career awareness means gaining knowledge of career paths and job opportunities and the skills and qualifications necessary to be successful in these positions.
Ultimately, the fit of an organization’s culture with your personal goals, values, and work style is something you need to assess for yourself.
iii) Goal Setting
Goal setting is a process of integrating self-assessment and career awareness information into career goals that reflect your vision of what you want in a career. If you have taken the time to do a thorough self-assessment and have built up your career awareness, then you are ready to focus on taking action.
iv) Skill Development
Skill development means developing yourself and your skill sets to add value for the organization and for your own career development. Fostering an attitude of appreciation for lifelong learning is the key to workplace success. Continuously learning and developing one's skills requires identifying the skills needed for mobility and then successfully seeking out trainings or on-the-job opportunities for developing those skills.
Developing your skills begins with assessing which skills are important for your desired career development (Hall et al, 1986). Speak with your supervisor or manager and other career mentors to identify the types of skills that will help move you forward in your career.
Your development should follow the 70-20-10 rule:
- 70% of your development should come from on-the-job activities and action learning. This can include development experiences like managing a project, serving on a cross-functional team, taking on a new task, job shadowing, job rotation, etc.
- 20% of your development should come from interactions with others. This includes having a mentor, being a mentor, coaching, participating in communities of practice, serving as a leader in a staff organization, etc.
- 10% of your development should come from training, including classes, seminars, webinars, podcasts, conferences, etc.
Once you have identified the skills you need to develop to achieve your career goals, your next step is identifying how you will develop your skills. The two main avenues for developing your skills are through the following:
i) Education and training
ii) Developmental experiences
v) Career Management
Career Management ensures others know about you and your value. Although Career Management is one of the five phases of career development planning in our model, it is deliberately front and centre since activities related to career management are relevant to all the other phases. Also, career management, unlike the other phases, is a continuous process that occurs throughout one's career and not just at discrete times. It may be helpful to think of career management as a philosophy and set of habits that will enable you to achieve career goals and develop career resiliency (Campbell & Moses, 1986).
Successful career management is accomplished through regular habits of building relationships, engaging in career development conversations, updating your career development plan, and setting new goals as life and career needs change. Being proficient at career management also means possessing basic skills related to job searching and managing changes in a resilient manner.
vi) Personal Swot Analysis
Employees should learn how to conduct a personal SWOT Analysis as it will help one make the most of their talents and opportunities. SWOT stands for:-Strength, Weaknesses, Opportunities and Threats.
What makes SWOT especially powerful is that, with a little thought, it can help you uncover opportunities that you would not otherwise have spotted. By understanding your weaknesses, you can manage and eliminate threats that might otherwise hurt your ability to move forward.
A SWOT matrix is a framework for analysing your strengths and weaknesses as well as the opportunities and threats that you face. This helps focus on strengths, minimize weaknesses, and take the greatest possible advantage of opportunities available. The SWOT framework helps in developing the developed specialized talents and abilities one need to advance their career.
THE Manager’s Responsibilities
Managers have responsibility in career development of their subordinates (Dreher & Dougherty, 2005). They identify and link employee’s preferences with the needs and possibilities of an organization (Margerison, 1991). They should serve as a catalyst and a sounding board. Should show an employee how to go about the process and then help the employee to evaluate the conclusions. The manager acts as a catalyst, sensitizing the employees to the development planning, finds out how realistic the employee’s career development resources are as perceived, counsels employees and develops mutually agreed plans, and follows up and updates employee’s plans as appropriate.
Organisational Development
Organizational development is a structure that is used by companies to improve its overall performance by developing that of their employees. Organizational development is commonly done through performance management. Performance management is the systematic process of improving the performance of the organization by developing the performance of the employees.
Basically it deals with getting better results by understanding and managing performance with an agreed framework of planned goals, standards and competency requirements. There are processes that exist within the organization that establish the goals that should be achieved.
Performance management should be a control system only by exception such that employees are given freedom to do their work, direction and encouragement and not control. The solution is to make it a collaborative development system in two ways (Armstrong M, 2006):
i. The Performance Management System should encourage development.
This can be achieved through coaching, counselling, feedback, tracking, recognition and so forth. The purpose here is to ensure that employees grow through these interactions.
ii. Strategic Development.
The team members and managers should ask what should be done to do bigger and better things. The process of Performance Management is cyclic. It consists of three parts: planning, acting and reviewing.
CAREER Planning
This stage forms the basis for development, assessment and feedback in the Performance Management system.
Performance planning is important for the following reasons (IHG Training Manual):
i. To review the employees key responsibilities in relation to the business plan
ii. To set key performance objectives in the year ahead
iii. To discuss and agree on the employees future career plan
iv. To discuss on the business skills and leadership brand competencies required to achieve the key performance objectives and career objectives and identifying strengths and development priorities.
v. To confirm roles and responsibilities for carrying out and supporting the development and career plan.
Setting of performance objectives (IHG Training Manual)
This is a key principle of the planning process. The main aim of planning as discussed above is majorly to identify the performance key objectives. In the setting of objectives it is paramount that the SMART principle be used. The SMART principle is an acronym for “Specific, Measurable, Attainable, Relevant and Time” bound.
Specific- Clearly descriptive so as not to be misinterpreted.
Measurable- Be quantified or measurable
Attainable- Is it probable that the individual can achieve the outcome?
Relevant- Is it tied to the overall goals of the business or department?
Time bound- Does it state the due date things need to happen.
The objectives should seek to stretch an employee such that the objectives set require him to do much more than the employee might believe him or herself capable of and must be within the scope of possibility.
Acting
This process can also be referred to as tracking performance execution. It is mainly achieved through mid year performance reviews. Such reviews in most organizations are normally conducted in the month of July. During the year many issues may arise affecting the desired performance outcomes. Although there may have been various informal discussions between the manager and the employees, the midyear reviews serve as a formal platform to record progress towards achieving the desired results and demonstrating desired behaviours (IHG Training Manual).
At this stage managers have two major responsibilities to create conditions that motivate employees to achieve their performance goals and to correct any performance problems.
The Acting stage involves the following (IHG Training Manual):
i. Reviewing the Key Performance Objectives in relation to the business plan.
ii. Reviewing the status of the Key performance Objectives and setting the progress to date.
iii. Reviewing the progress on the development plan
iv. Reviewing the employee’s career plan.
Steps in achieving the acting process
a. Creating Motivating Conditions
Motivation is internal. No person can be forced to do what the do not want to do willingly. While it is important to identify individual motivation drivers for the employees the organization should seek to create an environment to foster success.
Techniques that will impact employee motivation:
i. Creating opportunities for achievement
ii. Allowing freedom and autonomy
iii. Providing learning opportunities and growth
iv. Increasing amount of challenges
v. Providing recognition
vi. Ensuring the work assigned is capable of motivating
b. Correcting performance problems
Performance problems need to be confronted and addressed when they occur. Most of the time a word in the ear may be sufficient to resolve such a problem. However there are occasions that this shall not be sufficient and it shall be necessary to hold performance improvement discussions.
i. Correction such problems can e effected through the following:
ii. Clarifying the expectation to the employees
iii. Providing training
iv. Arranging consequences for good and poor performance
v. Providing feedback n the work done.
vi. Removing obstacles than hinder performance.
c. Maintaining Performance records
An effective performance review requires a good record so that assessment may be done on positive and negative performance throughout the year.
The records must be
i. Accurate
They should record the objective facts and date as they occur both positive and negative
The records should be related to job behaviour only. The records must be based on direct observation and not hearsay.
ii. Behavioural
They should describe the behaviours and not evaluative statements or comments on personality.
iii. Consistent
There should be records of the observed behaviour, both good and negative behaviour. There should also be a description of the situation, action and the results. The same format and level of detail must be maintained for each employee. The records shall be maintained for all employees.
d. Updating key performance objectives as condition as change
The strategic business plans developed at the beginning of the year should be linked with individual employee goals. It is unrealistic to expect that such shall remain constant throughout the year. The need to change these objectives may arise from; changes in economic conditions need to modify the original expectations, new opportunities arising which may impact the business.
e. Providing feedback and coaching
Unless an employee is told differently, they will assume that they are doing a good job. Although employees are encouraged to monitor their own performance, it is a function of effective management to consistently let people know what is expected and how their performance measures up. This shall avoid surprises at the performance review meetings.
f. Providing Development experience and opportunities
This involves more than having a development and career plan, it involves facilitating learning on a regular basis. People are bound to develop when presented with challenging situations which they successfully measure up to, reflecting on what they did well and what they would do differently next time. Situations should be presented to employees to force individuals to learn and grow.
g. Reinforcing effective behaviour
Building on employee’s strengths almost always provides for better performance than trying to overcome weaknesses.
Reviewing
This basically involves the assessing progress and achievements at the end of the year. This is characterized by the annual performance reviews. It is when the past performance of an individual is reviewed, discussed rated and whereby the employee and manager look to the future to plan for the coming year.
The performance review must be fair and must be based on observed behavior and actual measurable results covering the entire year. This shall be evidenced by the ratings that are assigned and the narrative comments that shall be written.
Performance benchmarks are made up of what the employee accomplishes and how they go about doing the job. The performance review system should clearly define the expected performance standards or benchmarks (IHG Training Manual).
Legal Framework Governing Legal Career Development
Legal profession and legal career development is guided and regulated by a number of rules and regulations. The regulation of the legal profession begins at the legal education level through the standards set for qualification to practice and admission to the bar mainly through the Legal Education Act, 2012, Kenya School of Law Act and the various subsidiary legislations and the Advocates Act.
Structure of Legal Education in Kenya
Degree Level
Entry requirement to university is generally governed by the respective statutory instruments regulating university education. However, the second schedule of the KSL Act and the Advocates Act denotes the minimum requirement for a bachelor degree of law degree. It provides that one need to have attained a minimum entry requirements for admission to a university in Kenya; that is, a mean grade of C (plus) in the Kenya Certificate of Secondary Education or its equivalent. He also needs to obtain a minimum grade B (plain) in English Language or Kiswahili (Kenya School of Law Act).
Generally the objective of LLB programme is to enable students to gain an understanding of basic legal concepts and theories. The Legal Education Act provides that a legal education provider offering a course for the award of a degree in law shall, in addition to any other courses offered, provide instruction and examination for each of the core courses set out in the statute (Legal Education Act).
Advocate Training Programme
Admission requirements into the Advocates Training Programme are provided under the Kenya School of Law Act. It provided that: A person shall not qualify for admission to a course of study at the School, unless that person has met the admission requirements, set out in the Second Schedule for that course (Kenya School of Law Act). The second schedule provides that a person shall be admitted to the School if: having passed the relevant examination of any recognized university in Kenya holds, or has become eligible for the conferment of the Bachelor of Laws Degree (LLB) of that university.
It also provides that one need to have attained a minimum entry requirements for admission to a university in Kenya; that is, he obtained a minimum grade B (plain) in English Language or Kiswahili and a mean grade of C (plus) in the Kenya Certificate of Secondary Education or its equivalent; or has sat and passed the Pre-Bar examination set by the School.
The objectives of the Kenya school of law are set under section 4 of Kenya School of Law Act. It provides that: The School shall be a public legal education provider responsible for the provision of professional legal training as an agent of the Government.
The objectives of KSL is therefore to train persons to be advocates under the Advocates
Act; to ensure continuing professional development for all cadres of the legal profession; to provide train paralegal training; to provide other specialized training in the legal sector; to develop curricular, training manuals, conduct examinations and confer academic awards; and to undertake projects, research and consultancies.
6.1.3 Admission to the Roll of Advocates
Section 13 of the Advocates Act provides that a person shall be qualified to be an advocate if he has passed examinations of any recognized University in Kenya and holds a Bachelor Of Law degree (LL.B.), or having passed the relevant examinations of such University as the Council of Legal Education may from time to time approve, he holds or has become eligible for conferment of a Degree in Law in the grant of that University or University College which the Council may approve.
Thereafter, the person must have attended as a pupil and received from an advocate of more than five years standing, instructions in the proper business, practice and employment of an advocate and has attended and passed such examinations as prescribed by the Council Of Legal Education, at the Kenya School of Law.
Section 13 1(c) further provides that a person shall be duly qualified if he has any other qualifications acceptable to and recognized by the Council of Legal Education or for the time being he is an Advocate of the High Court of Uganda or the High Court of Tanzania.
In the case of Samaki v Samaki, proceedings filed by unqualified advocates were struck out for being invalid.
Continuing Professional Development
The Law Society of Kenya Continuing Legal Education (CLE) Program is mandated with the responsibility of ensuring continuous professional learning for all Advocates in Kenya after they are admitted to the Bar. All Advocates practicing in Kenya are required to attend Continuing Legal Education sessions. The Law Society of Kenya Continuing Legal Education has been in operations for years. The CLE program is self financed by registration fees charged on participant for the sessions.
Under the Committee's guidance, the Continuing Legal Education Program has become, in recent years, an integral aspect of legal practice in Kenya. It is one of the most vibrant programs of the Law Society of Kenya. This is in line with its vision of structuring the ongoing training of advocates on the latest developments in the Law and acting as forum for discussion of proposed legislation.
Senior Counsels
Kenyan legal system is drawn from English legal system and heritage, so is the position of Senior Counsel which is borrowed from the English, Queen’s Counsel (QC). Section 17 of the Advocates Act provides that: the President may grant a letter of conferment to any person of irreproachable professional conduct who has rendered exemplary service to the legal and public service in Kenya conferring upon him the rank and dignity of Senior Counsel.
Requirement to become a senior counsel
A person shall not be eligible to be a Senior Counsel unless he is a duly enrolled advocate of the High Court of not less than fifteen years' standing or being a person to whom section 10 applies, he holds, and has held for a continuous period of not less than fifteen years, one or other of the qualifications specified in section 13 (1) of the Advocates Act.
The Senior Counsel Conferment and Privileges Rules, 2011 provide qualification criteria in detail. It provides that: one need to be of irreproachable professional conduct for at least 15 years; be an active legal practitioner and undertakes training of members in the profession; Holds a valid practicing certificate; Possesses sound knowledge of law and professional competence; Has argued at least 5 substantive appeals before the Supreme Court or Court of Appeal and at least 10 substantive cases before the HC in the 10 years preceding the application; is a person of integrity; has actively served the Society and has contributed to the development of the profession (L.N. 155/2011). In 2003 President Mwai Kibaki conferred Senior Council rank to 9 advocates.
Senior counsel shall enjoy other privileges as the Council of the Law Society of Kenya (LSK) and the Chief Justice may consider appropriate.
Employment in Kenya is governed by the Employment Act. The Act defines the
rights and obligations as workers and employers in the workplace. Further on,
it mediates the relationship between workers (employees), employers, trade
unions and the government.
Other sources of law governing employment at large in Kenya include: Statutes
(Acts of Parliament), the Constitution of Kenya 2010, the common law and
international treaties, principles and conventions.
The Employment Act has various crucial provisions governing workers. It creates
a floor of employment rights that includes the regulation of hours, leave,
remuneration, and termination. It also prohibits forced labour and governs
workplace inspections.
Section 27 provides that, an employer shall regulate the working hours of an
employee according to the provisions of the Act. An employee is also entitled
to a one day rest in every seven days.
The Employment Act allows annual leave, maternity leave and sick leave. The
Employment Act also calls for the appointment of labour inspectors, who may
enter a workplace without warrant or notice.
Other issues that are of concern and directly or indirectly affect career
development are discrimination, slavery and forced labour. Discrimination could
take any form. It could be racial, gender or that of disability. These factors
can affect progression in the form of salary increment or promotion hence
restricts positive career development.
A Case Study
The Office of the Director of Public Prosecution
The office of director of public prosecution is established under Article 157 of the Constitution of Kenya 2010 and whose main function is the prosecution of criminal cases in Kenya. The day to day running of the ODDP’s is governed by several regulatory frameworks which include inter alia:
1. Office of the Director of Public Prosecution Act No. 2 of 2013
2. Career Progression Guidelines for ODDP Staff of 2013
3. Report on the Organizational Structure and Staffing Levels of the ODPP
4. ODPP Human Resource Manual
5. ODPP Strategic Plan 2011 - 2015
A career has been defined under the Career Progression Guidelines for the ODDP staff 2013 as a sequence of positions of jobs with related work activities that provide an employee's progression within the same ‘cadre’[709]. Career Progression Guidelines is a designed career path for employees. It aims at establishing distinct levels of responsibility in the grading structure which enables officers understand their duties and expected standards of performance. It became operational with effect from September 2012 and it supersedes any existing ones. It provides that upon its implementation, all serving officers will automatically become members of respective Career Progression Guideline.
The career progression guidelines for the ODPP staff provide that its Objectives includes inter alia:
a. To provide for a well defined career structure which will attract, motivate and facilitate retention of qualified and experienced staff of the Office of the Director of Public Prosecution
b. To establish distinct levels of responsibilities in the grading structure and set standards for advancement to higher grades on the basis of professional competence, specialization, knowledge, experience, proven ability, diligence and drive as reflected in work performance and results;
c. To encourage employees to develop themselves for the purpose of advancement in their careers through acquisition of professional qualifications and high productivity;
ODPP’s Grading Structure And Scope[710]
Section 2 of The Career Progression Guideline for the ODDP Staff establishes nine (9) grades for Prosecution Counsel who will be graded as follows: ‐
S/No. Designation Grading
1. Prosecution Counsel II DPP 10
2. Prosecution Counsel I DPP 9
3. Senior Prosecution Counsel DPP 8
4. Principal Prosecution Counsel DPP 7
5. Senior Principal Prosecution Counsel DPP 6
6. Assistant Director of Public Prosecution DPP 5
7. Senior Assistant Director of Public Prosecution DPP 4
8. Deputy Director of Public Prosecution DPP 3
9. Secretary, Public Prosecution DPP 2
39.0
Challenges in Career Development
Developing a career plan is an effective way to not only determine what you’ll need to do climb the corporate ladder, but also to plan a road map to get there. In addition to taking positive steps to improve your skill set, learn how to deal with pitfalls and roadblocks. (Ashe-Edmunds, 1998).
The challenges associated with the changing nature of work and the workplace environments are as real for the Legal Profession as elsewhere. Rapid change requires a skilled, knowledgeable workforce with employees who are adaptive, flexible, and focused on the future. (Berkley, 2009) the challenge facing many organizations today is overcoming the traditional view of career development as a means to develop the "most" promotable employees. The cultural shift toward employee empowerment, technological advancement, a changing workforce (diversity, work-life balance, etc.) and the "new" role of managers, are very much in line with development initiative. In career development challenges that are evident tend to incline on one gender that is the female gender as opposed to their male counter parts. This cuts across women in the top managerial position to those holding the minority positions in the organizations.
These challenges can either be internal to the employee himself while others are external, from the work environment. It is identified as conflict between socialized values of caring for the family, self limiting beliefs, possessing conflicting beliefs, and not being aggressive versus harder values found in competitive organizational cultures, roles are still largely on one gender. The external challenges include; possible sexual harassment, heavy executive role expectations, patron male bosses, threatened colleagues, blocked promotions, pay disparity, the glass ceiling, the queen bee syndrome and the wonder woman syndrome among many others.
Limited Access to information Interaction
One of the most frequently reported problem in organizational setting is the fact that they experience limited or indeed no access to informal interaction networks (O’Leary and Ickovics, 1992). An effect of this exclusion is limited access to the instrumental resources critical to one’s job effectiveness and career advancements that are allocated by these networks. In addition friendship and social support are often provided by this medium (Tichy, 1981). Anyone experiencing difficulty in gaining access to these networks multiple disadvantages may result including restricted knowledge of what is going on in the organization and the difficulty forming alliances which in turn my be linked to career advancement issues such as limited mobility and glass ceiling effect (Davidson & Burke, 2000). Networking means talking to anyone who might be useful in work and might benefit your expertise. It is making use of your contact as a source of help and advice. It gives you a collective backing where you have struggled alone and a pool of experienced people at your disposal (Bird, 1996).
Networking has long been considered a crucial ingredient for success in any professional career due to its many advantages which include; information exchange, collaboration, career planning and strategy making as well as professional support and encouragement and access to visibility and career advancement (Stern, 1981).
8.2 Gender Role stereotypes
Gender role stereotypes have major impacts on the selection and promotion as well as evaluation of managerial performance. The typically good manager is described in traditionally masculine terms (Frank, 1988). This bias can lead to different treatment of women in more than one way; because they are expected to be less effective managers anyhow. They are expected to want a family and therefore will drop the career paths; and because gender roles incongruent behaviour is generally evaluated more negatively than gender congruent behaviour (Stratham, 1987). In analyzing the main barriers to upward mobility in hierarchical bureaucratic organizations are stereotypes which see women as properly in home rather than office. Women in periphery functions removed from the core firm limits career opportunity for women. The education systems prepare women for female dominated jobs usually involving short career ladders, women lose out of the political nature of the internal promotion system in hierarchical organizations. Responsibilities at home and children also affect the ability of a woman to relocate.
Under gender stereotype the main issue of concern that either directly or indirectly affects career development is Discrimination. The Oxford Dictionary defines discrimination as "the unjust or prejudicial treatment of different categories of people, especially on the grounds of race, age, or sex." The Merriam-Webster Dictionary defines it as "the act, practice, or instance of discriminating categorically rather than individually."Generally, discrimination can be defined as the unfavourable treatment of someone based on having or not having a certain characteristic, cultural history, or other perceived difference.
Overtime, it was recognized that private entities or individuals may abuse human rights of others, especially the weak and the marginalized. This is what is often called horizontal application of the bill of rights, which essentially means that individuals are conferred rights by the bill of rights, but also, in certain circumstances, have duties imposed on them by the bill of rights to respect the rights of other individuals.
In today’s world there are private organizations that wield so much power, relative to the individuals under them, that to exclude those entities from the scope of the Bill of Rights would in effect amount to a blanket license for them to abuse human rights. This is particularly so in an employment relationship which more often than not is characterized by unequal bargaining power between the employer and the employee (2002).
In labour law, the workplace is acknowledged as a site of inequality between a person providing service or performing work (employee) and the recipient (the employer). In this relationship the employer is usually the weaker party. Labour law is seen by a number of societies, not least the International Labour Organization (ILO) as a convenient instrument to address issues arising out of the inherent inequality. A reasoning that seeks to confine the application of our constitution to organs of the State is not only unauthorized by the constitution itself, but it is also a static approach in that it fails to take into account the realities of the modern distribution of power where in many instances it is not only the state, but the exercise of private power that poses the greatest threat to the exercise of fundamental human rights and freedoms.
The ILO Declaration on Fundamental Principles and Rights at Work which Kenya has ratified hence it is part of our laws pursuant to Article 2 (6) of the Constitution of Kenya 2010 reaffirmed the constitutional principle of the elimination of discrimination at the workplace. The elimination of discrimination at work is essential if the values of human dignity and individual freedom are to go beyond mere formal pronouncements. The fact that Kenya has ratified the convention means that Kenya has demonstrated its clear intention to comply with the provisions contained therein and the court should take cognizance of this action as an expression of the recognition which must be accorded to its provisions when interpreting similar fundamental provisions under the constitution. The protection afforded by the above convention applies to all sectors of employment and occupation, both public and private.
It must be mentioned that the principle of equality does not out law treating people differently to others per se. The principle of equality does not require everyone to be treated the same, but simply that people in the same position should be treated the same. Simply put, discrimination that is irrational and or unjustifiable cannot pass the constitutional test. Article 27 of the Constitution prohibits discrimination. It provides for equality and freedom from discrimination. The constitution provides that all persons are equal before the law and should be subjected to the same equal treatment (Constitution of Kenya).
It also provides that the State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. For instance, in Kenya, as regards religion ,belief and culture a Muslim lady who has gone through rigorous training at the Kenya School of Law with an ambition of developing her career can never becoming the presiding judicial officer in the Kadhis court due to ‘men think’ stereotype.
In an employment setting, employees are in a position comparable to individuals of a powerful ‘State’ — it being recalled that traditionally a bill of rights was applicable vertically because the State was considered powerful and prone to abuse its power. This is notwithstanding the likelihood, that most private or juristic persons do not have the capacity to infringe human rights in a manner and on a scale comparable to that of the state.
8.3 Education and Training
In Kenya, education has gained recognition as a condition for social and economic development (Erwee, 1992). In order to eliminate pre-market discrimination, women should regard training at university or college level as a priority to gain competitive advantage. Managers ought to identify both internal and external training programs to enable their employees develop their competencies. Although Kenya’s education policy does not discriminate on the basis of gender, the education system is characterized by significant gender disparities (Republic of Kenya, 1999). Boys and girls have almost achieved equal access to primary education in terms of enrolment although the completion rates show that slightly more boys than girls complete primary education. Although the enrolment of girls and women in secondary and tertiary education has increased considerably, the overall participation rates show that boys and men have consistently had more access to education at every level than their female counterparts.
As a result, the female enrolment in institutions of higher learning has always been lower than that of men. The Government of Kenya has, in recent years, implemented some policy measures to increase women’s access to education and narrow the existing gender gap in public universities. But gender disparities at the tertiary level still remain large despite such policy interventions. (Gattiker, 1988) lays emphasis on the fact that
Education and Training for girls and women are key measures to improve women’s social and economic status. This not only applies to female gender only but also to male employee in an organization as measure to ensure career development.
Essentially, the pace of globalization has accelerated dramatically over the past two decades yet we are still lacking information about what factors contribute to successful expatriation and organizational adaptation in the international arena. According to Brian Tracy, by developing and maintaining a fast tempo in your work and stepping in the accelerator of your own potential you become a moving target because: the faster you move the more energy you have, the faster you move the more experience you get, the more experience you get the faster you learn, the faster you learn the better you get and the better you get, the more you will sought and the faster you will be promoted. The faster you move the greater your self-esteem, self-respect and personal pride. The faster you move the more valued and respected you will be among the people around you. The faster you move the better would be the quality of your life in almost every area. The most successful people are result oriented; they are intensely focused on getting the most important result expected from them and their work.
INTERNAL MOBILITY
Internal mobility relates to the movement of employees within the organization. The process provides for mobilization of talent from one role to the other at leadership, profession and operational levels. Maximizing employee efficiency as well as ensuring discipline in employees achieves this aim. Adaptability is a key skill and by allowing for internal movement, the organization is able to ensure its employees are able to adapt internal changes.
For this to be successful, companies must adopt the principles of succession management at all ranks[711]. It is therefore vital that the organization aims for transparency. Effective planning is crucial to understand the needs of the organization. This is achieved through discussions on growth of the organization and its employees. There are various types of internal mobility;
Promotion
Promotion is an act by which an employer gives an employee a superior position with an increase in salary, higher level of responsibilities or a new job description[712]. In Kenya, employers have a duty to promote equal opportunities in employment and strive to eliminate discrimination in any employment policy or practice regarding promotions.[713]
There are various types of promotions; firstly a horizontal promotion, which entails an increase in responsibility, pay and designation but no shift in job classification. Secondly a vertical promotion aims to move the employee to a higher level in the hierarchy and increase in pay, status and responsibility. Thirdly, if the new position increases responsibility and status without increase in pay, the same is known as a dry promotion.
Merit and seniority are commonly used basis of promotions by organizations. Merit implies the knowledge skills and performance record of an employee. Although merit is only based on past achievement rather than future potential, if identified correctly it can increase motivation of an employee and maintain efficiency by recognizing talent and performance. Seniority denotes the relative length of service in the same organization. It provides sense of satisfaction for senior employees reducing labour turnover.
The Constitution of Kenya establishes the office of the Inspector General[714]. Mr. Joseph KipchirBoinnet, was appointed by the President as the IG of Police instead of Deputy Inspector General of Police who should have taken up the position based on seniority. Mr. Kimaiyo, the immediate IG had resigned following wake of terror activities in the country. The National Police Service Act (NPSA)[715] had been amended by s86 (2) of the Security Laws Amendment Act (SLA)[716] to allow for direct nomination of the IG by the President.[717] The NPSA provides for the procedure to be followed in the recruitment of the IG Mr. Joseph Boinnet was thus appointed as the IG.
The basis of competence is reinforced in the promotional schemed for teachers in Kenya. The Teachers Service Commission of Kenya is an independent commission[718] whose functions include registration, transfer and promotion of teachers[719].
The promotion is a common cadre that is conducted after 3 years subject to satisfactory performance. Teachers who achieve high qualifications are awarded increments. The head of institution is required to submit a performance report[720]. Teachers’ promotion faces challenges since posts provided in the budgets are limited hence it is the responsibility of the HR department to lay down a sound promotional policy focusing on advancing employees based on skills and performance and ensure its implementation.
The principle of internal recruitment provides for promotion of present employees in the organization when a vacancy is available. Additionally, the principle of impartiality promotion is based on a fair balance of merit and seniority of an employee. The principle of consistency is a result of a planned activity linked to human resource in an organization.
Promotion aims to develop competent internal source of employees to take up jobs at higher levels in the organizations’ hierarchy. It increases employees’ self-esteem by a competitive spirit and inculcating the zeal in the employees. This results in an increase in acquiring higher qualification in training and self-development with a view to meet the requirements of promotion. Promoting internal staff for various roles, costs of external recruitment and induction into the firm are also reduced. Furthermore, organizations that use employment agencies are more often guaranteed to receive the best and skilled applicants. Conversely, promotion of an internal employee could cause resentment amongst other employees, hence affecting the organization’s output.
Demotion
Demotion is the downward reassignment of an employee (Y. Irshad Ahmed, 2011) that usually results to change in job reward, lowering of benefits and change in responsibility. In Gitau Harrison Joshua v Teachers Service Commission & another the Court defined demotion as a conferment upon the employee, an office or designation to which there is attached lower pay or lower pay scale.[721]
An employer should do his/her best to accumulate evidence of the employee’s deficiencies that may later be used to rebut claims that the demotion was unwarranted.[722] The employer should also provide notice to the employee of the upcoming move, similar to the notice they would give if terminating.[723]
If considering a lateral move, the employer should question whether it could represent a fundamental change in the employee’s status or function within the organization (Warren Rapoport& Luke Field, 2011). In Steven Raymond Van Wyk Verses Albany Bakeries (pty) ltd & 2 others The Court held the claimant’s redployment to an inferior position amounted to demotion.[724]
In some organizations, periodic evaluation is conducted in order to effect mobility within an organization. In CMC Aviation Limited v Mohammed Noor[725], one of the issues of determination was whether the respondent’s demotion from the position of Chief Pilot to Line Training Captain was justified.[726] The court held that it was unreasonable for the respondent to expect a salary of a Chief Pilot when he had been redeployed to work as a Line Training Pilot.[727]
Demotion is mainly used as a disciplinary measure against wayward employees. Alternatively, adverse business conditions may force an organization to alter itsemployment structure. Some departments may be removed while some managers may be demoted to accommodate the new structures (Wellingkar, Human Resource Management II). Furthermore, in a case of merger and acquisition, the top‑level managers of the merged company may be required to accept lower positions in the merging company though their job specification may remain the same. In other organizations it is practice that periodic evaluation is conducted. Through this practice employees are promoted and demoted depending with their performance.[728] Miner and Miner (1985) argue that demotion is an instrument for career growths within human resources development, as it possibly helps putting the right man, on the right place within the company. However it must be noted that demotion tends to lower the morale and career prospects of an employee.[729] It can be devastating and it usually causes embarrassment that would be incapable of reparation by way of damages.[730]
Managers rarely resort to demotions since they prefer to discharge the employees rather than face the problems arising from the demotions. In certain jurisdictions, demotion is usually treated as an unfair labour practice especially where the employer fails to give notice or explain the reasons thereof. Demotion is usually contrary to the employment contract between the employer and employee thus suffices as to say an employee can sue for damages.[731]
Transfers
A transfer is a horizontal or lateral movement of an employee from one job, section, department, shift or position to another with no change of status, responsibilities andsalary. In Ndlela v SA Stevedores Ltd[732]the first respondent testified that if he does not move with his status and responsibility, the same does not amount to lateral transfer. Transfers can either be temporary or permanent, and can be initiated by either the employer or the employee.
Not only do transfers increase employee motivation but also gives them a sense of belonging, reduce boredom and fight off a lack of commitment (Campion et al 1994). Transfers are occasionally considered to correct erroneous placement to ensure the employee’s skills are exhausted. Although transfers are seen to improve conditions for the employee as well as the organization, often employers choose transfers to punish employees for their wrongdoing. This is more common in government organizations where employees are transferred to hardship areas where they cannot act contrary to the law. The Public Service Commission Act[733] gives the committee power to discipline public officers, a transfer can be an option to consider, however this should be without prejudice. Furthermore, Article 234 (2)(b) of the Constitution[734] also gives the commission power to exercise disciplinary control over and remove persons holding or acting in those offices; one of the disciplinary measures can be a transfer.
A transfer can have numerous implications thus employees tend to have differing opinions of the same. Some employees support transfers as they see this as a tool to gain more exposure and therefore increase their knowledge and develop skills in the process. Organisational theorists have advocated frequent transfers as a means of reducing fatigueand boredom on production jobs so as to maintain productivity (Miller, Dhaliwa, and Magas, 1973).
Other employees are of a contrary view and believe transfers result in more disadvantages rather than advantages. They argue that a transfer may disrupt attitude. As Robbins (1993) puts it, when we talk of employee attitudes, we refer to job satisfaction. Such a person may not be satisfied becoming less productive. Financial costs are a big disadvantage when considering transfers.
For an effective transfer, employers often look at the various types of transfers that are available in order to ensure the best result. Production transfer[735] provides for transfers in accordance with demand and therefore here, employees may be transferred from one department to another where there is a requirement. Section 5(3) of the Employment Act[736] provides that it is not discrimination to distinguish, exclude or prefer any person on the basis of an inherent requirement of a job. These transfers meet the requirements of companies thus stabilize employment. Alternatively, Replacement transfer aims to replace an employee who has been in the organization for long, with a new employee. Not only does this relief the existing employee of their work pressure but also aims to bring in new ideas into the organization with new employees. Shifts transfer is commonly used where there is more than one shift and also where there is regularized rotation. For example, in hospitals that operate even at night there are doctors who work during the day (day shift) and others work during the night (night shift) one may thus be transferred from day shift to night shift and vice versa.
Transfers are very sensitive and can have grave implications if they are not procedurally correct. It is therefore vital that an organization should have a fair and impartial transfer policy, which should be known by each employee. A good transfer policy in organizations should clarify types of transfers in the organization, highlight who has the authority to initiate and implement the same, the transfer basis should be clearly indicated, should be in writing.
In SAPS v Salukazana& others[737]the first respondent said that the transfer was unfair. This does not remotely suggest that he was arbitrating an unfair transfer dispute. This indicates that the organisation did not have good policies on transfers. It is clear that transfers in many organizations do not seem to be effective. If employers fail to follow correct procedure, transfers are pointless.
SEPARATION
Separation refers to a situation where the service agreement of employees with his organization comes to an end and the employee leaves the organization. The employment relationship may be ended voluntarily by someone moving elsewhere, or finish at the end of a career on retirement (Michael Armstrong, Human Resource Management, 2006).
Separation can be voluntary through resignation for example or involuntary where an employer decides to terminate its relationship with an employee using methods such as retrenchment due to an economic necessity. Involuntary separation takes forms such as discharges, medical separation, death and layoffs (A Guide to Managing HumanResources, 2014). There is need for separation process to be undertaken in a structured, informed and sensitive manner that not only meets legal standard thresholds but also, to the largest extents, benefits both parties. If properly conducted and exercised the process of separation ensures a smooth transition in the organization. The persons vacating certain offices carry a wealth of experience and skill that may largely benefit the organization if passed on to the successors. In this regard, it is evident that there is the need to protect and preserve important professional relationships with persons whom the employment relationship has come to an end for one reason or the other.
Employee separation has been mostly viewed in a negative way though it has some benefits for both employees and the employer. For example, separation creates opportunities for mobility within the organization. It creates room for new employees who may be promoted from within or hired from outside. New employees are believed to help in improve business performance by offering fresh perspectives and ideas. An organization may reduce labour costs in the organization by reducing the present workforce. The initial cost of separation can be high but in the long run the organization may save a large amount of salaries to be paid. Further, separation will assist an employee escape an unpleasant work situation and find a better and pleasant job that is fulfilling. Also, through separation an organization is able to replace poor performing employees with more skilled employees. Finally, separation opens doors for diversity. An organization is able to hire employees from diverse backgrounds and redistribute the cultural and gender composition of the workforce. This creates a diversity of ideas, skills and perspectives.
The process of separation is laden with various demerits. Since separation has numerous functions such as recruiting, placement and training processes, the said process may be expensive for an organization. The cost of running these processes is often high due to various factors such as hosting venues for seminars and costs for advertising for new positions. Moreover separation may be detrimental in running of the organization activities as it interrupts the smooth flow of activities in a department. An employee leaves a vacancy and it may take a while before another employee runs activities as the previous one. Finally, separation forms such as layoffs or redundancy may kill the moral of other employees. There will always be tension that they may be laid off anytime. This may affect the performance of the employees.
39.1.1 3.1.1 Retirement
Retirement may be defined as the forced or voluntary withdrawal from the job market[738]. It is that point where the employee’s service agreement comes to an end and the employee leaves the organization (Udhay, K., 2014 ). It follows that retirement takes two forms; involuntary retirement or compulsory retirement occurs when the employer decides to terminate its relationship with an employee due to inter alia economic necessity or poor fit between the employee and the organization (Kaur, K.K., 2013). On the other hand, voluntary retirement occurs when an employee decides for personal or professional reasons to end the relationship with the employer[739].
Another factor is based on medical grounds[740]. To be a president of any nation, it is requisite to be physically and mentally sound. Falling short of this may prompt removalfrom office by way of motion by a member of the national assembly[741]. The President on his own volition may impliedly cite such incapacity to retire upon which the office will be said to be vacant. The essence of retirement on grounds of adverse health status is one that is grounded on inter alia the constitutionally recognized right[742]. This provision should be read closely with the employer’s obligation to uphold the individual employee’s right to life[743] in lieu with the Constitution and s34 Employment Act[744].
The attachment to and conditions at work may also affect retirement. The work place should not be a place of slavery or servitude[745] but to the contrary a place of learning, developing and contributing to an organization’s growth. Unfortunately there are cases where a work place may be found to be lacking in the basic minimum conditions of employment outlined in Part V Employment Act[746]. These conditions make a job attractive and it is only natural that an employee may be inclined to end his or her journey with an organization based on their absence. There are exceptions where due to the employee’s resilience and nature of the work, he or she may not actually be compelled to leave. This situation is peculiar with the armed forces, as the Employment Act does not apply to them or reserve, police, prisons and the national youth service[747].
Retirement is expressly and/or impliedly provided for in laws regulating the term of service of an employee. This is peculiar to civil servants. The President is limited to serve only two terms[748]. As head of government, he/she is not precluded from the benefits of the basic minimum conditions of employment within the meaning of the applicationclause of the Employment Act that duly covers government[749]. For the sake of constitutionalism and bearing in mind that Kenya embraced multi party politics, the President is obliged to uphold and safeguard the Constitution[750].
Another fact is a change in career. The initial stage of joining an organization, employees who presumably have a career path hope that the organization will provide them with opportunities to advance them. In some instances however there may be incongruence between the employee’s career path and the opportunities available to him or her at the work place. On the other hand the employee may simply be adventurous and seeking to alter his or her career path completely. Dr. (Rtd) Ben Carson recently announced that he was seeking the United States Republican Party’s Presidential nomination(AFP, 2015).
Another factor that may lead to retirement is economic circumstances of the time. Were Monica in her commentary gives an example of the great depression in the 1930s that resulted in youth unemployment[751].Measures had to be made to address the situation among which included retiring the old who were then paid their benefits to replace their pre-retirement scheme to open up opportunities for the youths.
Retirement has many merits attached to it for instance it provides the employee an opportunity to contribute to the organization in other ways. Contrary to some opinions, it should not be a period to waste away but the retiree can still be instrumental. Many retirees have been known to retain advisory positions in both public and private entities. This eases the process of assimilation for those who might replace them.
Recently, Mr.Linus Gitahi who has served as CEO at Nation Media Group (NMG) for eight and a half years retired. Wilfred Kiboro the board chairman NMG in congratulating Mr. Gitahi said that the changes at the helm would take place gradually with Mr. Gitahi remaining in office until the end of June 2015 and thereafter remaining in an advisory role until the end of 2015 (Okoth E., 2015). Mr. Wilfred Kiboro too served was the CEO of NMG but retired on the 31st of October 2006. He now serves as chairman of the board thus the organization can still make great use of such invaluable experience and guidance.
The Presidential Retirement Benefits Act 2003 (PRB), as amended, in s6 (2) lays out that a retired president shall be expected to play a consultative and advisory role to the Government and the people of Kenya[752]. s6 (3) PRB also points out that the Government may request the retiree president to perform specific official functions for a payment of a reasonable allowance[753]. It follows that even in retirement; the president remains an asset to the Government and the people of Kenya.
Retirement also creates advancement opportunities for younger employees. There is a need by the employee to achieve his or her career goals. The employee seeks to be rewarded for instance in form of promotions, for his or her contribution to the organization’s growth. Indeed through such forms of reward the employer helps the employee realize his or her career goals but this should be on merit. The Employment Act casts an obligation on the employer to promote equal opportunity in employment and to strive to eliminate any discrimination in the employment policy[754].
Conversely, it may be argued that retirement deprives the organization of experienced and skilled human resource. The employer invests considerable time and resources in training the employee in the shortest time possible for optimal productivity. Through the employee’s willingness, he or she is able to assimilate and equip him or herself with the expectations and values of the organization. Well aware of the tenacity and adverse cost effect of training new staff, the retirement of experienced staff sets the employer quite a number of steps backwards. Upon retirement, the employer embarks on yet another tedious and expensive process of attaining replacements for the retiree. To mitigate the adverse effects of losing personnel with accumulated historical knowledge of the organization, its industry and market place, there is a tendency of employers retaining retired staff as consultants.
An increase is observed of the number of people aged between 60 years is increasing steadily in nearly every country in the world. This shift raises concern in both the developed and developing nations as the labour productivity level and the future economic growth is lowered (Bloom, D.E., Canning, D. and Malaney, P.N. 1999).
In Kenya, the retirement age for normal civil servants was increased to 60years (from previous 55 years) through Kenya Gazette in 2010. It does not apply to some occupational schemes like universities and government research organizations revised their retirement age recently and settled for 70 years (M. Were, 2008). A civil servant has an additional 5 years of work if one chooses not to retire early.[755] Internationally, there are countries in which the mandatory age of retirement has all but been abolished: USA, Australia and Canada. And yet others in which the right of an employer to make people retire at a given age is being challenged for example UK is reviewing this issue (Chief Executives Board for Coordination, 2009).
Several studies have been conducted to find out the link between retirement age productivity growths of employees in various countries. In China the retirement age in men is 60 years for men and 50‑55 years for women noted a productivity growth of 11.78% in 2010. This percentage is same in Singapore whose retirement age is 62 years. Thailand'ʹs productivity growth was 5.94%, where the retirement age is 60, compared with 5.78% for Malaysia where employees generally retire at 55 years (R.H Otube, J. Kwasira, C. Kipchilat, 2012).
The debate on the retirement age being extended in Kenya has stirred conversations between diverse age groups. The mature believe that the extension is when an employee can achieve his/her peak performance as one is furnished with the best experience to carry out activities exemplarily. In addition the employee has been relieved off the responsibilities at home and can concentrate at the work place. Conversely, the young cohort believe that increasing the age will lead to low output level as the employees are old and unfit to carry out the set goals. Older people also have high health care costs and lower tendency in accepting new things or change. Hence training to them may turn out futile (Barrett G. V. &Depinet, R. L., 1993). It also leads to scarce job opportunities and a subjection to slow and contemptible service delivery in the public sector.[756]
Firstly, the government outlined brain drain as one of the reasons to increase the retirement age. It is deemed that it is in their 50s when most employees attain their peak performance. The government felt that before the employee is adequately trained and earns the best exposure a lot of time is utilized. Returns come at a later stage which means when the employees retire at 55 years their much‑gained exposure is wasted. Private companies often employ the retired civil servants, denying the public the much needed services from people it helped train.
Secondly, Kenya had the lowest age for retirement (government employees) across the East African region. Thus in the spirit of integration, the government harmonized the age of retirement with that of other member states in due time. The universal retirement age recognized by the International Labor Organization is 60 years.[757]
Demographic factors which looks at population growth and how the society is aging counts. If the retirees tend to live for longer there is a tendency of the retirement being increased. Over 12,000 employees were expected to retire in 2009 but with the introduction of the scheme they have an additional five years. Hence, if the old cohort is aging at a faster rate then there is a likelihood of the government increasing the retirement age to reflect the trend.[758]In the western countries, the demographic shock of aging population, lower rates of fertility which result to low birth rates is a reason for the increase in retirement age.
Economic factor also has an impact on the retirement age in Kenya. Most countries increase the retirement age to enable them outsource fund to pay the retirees when time isdue. The Civil Service Pension Scheme covers over 400,000 Kenyans inclusive of teachers and workers under the public sector. Pensioners consists about 100,000 of the total.[759]
The government also announced a new contributory public service scheme. The contributions will be paid under the Public Service Superannuation Fund and will operate under the Retirement Benefits Act[760]. Under the new scheme pensioners could retire at 65. This was implemented in the Case of Silas Rukungu Karanjavs Teachers Service Commission[761],the court held that the respondent had unfairly terminated the claimant from the public teaching service at the age of 55 years under the contract of employment.
Retirement Benefits Authority
The RBA was initially established in the year 1997. A comprehensive framework of regulations was implemented in 2000 inter alia the establishment of the Retirement Benefits Authority body (S.K Raichura , 2008). Under s5 of the RBA Act the authoritative body is mandated with regulation, supervision and promotion of retirement of benefits sector in Kenya.[762] Among the tasks is the management of the retirement benefit schemes. This in turn protects the interest of the members or the sponsors of the retirement schemes.[763]
The body’s mandate extends to promoting development of the retirement benefits industry and advising ministers under the Finance on national policies to be followed concerning matters of retirement schemes.[764] In addition it implements the government policies relating to the retirement benefits industry.[765]
The regulatory framework and capacity needs to be reinforced in anticipation of a wider and stronger supervisory role of the RBA. The National Social Security Fund is the only body mandated to receive mandatory contributions and therefore relevant measures should in turn be taken to ensure the effectiveness of this body.[766] Some of these may include upgrade of technology in the body to ensure transparent formats of how all activities are channeled and that they can be traced. External financial auditors should be brought time and again for checks and balances in the organization. A mandatory system of payment of benefits should be introduced to each person though the person does not have a monthly salary. One’s identification number can be used to track the activities of the person in commercial transactions and levied an amount, which can be deposited for the retirement benefits. This may include purchase of goods or service rendered. Although the prices may be high, an assurance of accruing benefits is guaranteed.
Resignation
This refers to an employee’s termination of service by service of a notice on the employer. Such termination is as a result of either the independent decision of the employee or involuntary. If involuntary or compulsory, the employer directs the employee to resign on grounds of duty and indiscipline. The nature of involuntary resignation is such that an internal mechanism of enquiry will be employed before the organization asks such an employee to hand in their resignation. The employee must not have exercised this right of termination under duress.
Resignation, if voluntary, is influenced by personal decisions such as health, preference and better job opportunities. However, the rate of resignation in an organization is a high pointer into the employee turnover and is therefore an important question of human resource. Exit interviews are encouraged for organizations as they serve to inform the employer of the employee reasons for departure and hence influence possible reform to the human resource setup of the organization.
Dismissal
Dismissal is the process of being fired from employment or stripped off a rank. It is usually the ultimate disciplinary action when other methods, such as performance appraisals, coaching and suspensions due to misconduct, have been employed and are unsuccessful. An employee may be dismissed summarily due to gross acts such as misappropriation of organization resources, sexual harassment, stealing or theft[767].
The Act[768]states that an employer should explain to the employee the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation. An employer has the obligation to hear any considerations the employee hasbefore terminating his employment or summarily dismissing him.[769]The employer is required to prove the reason or reasons[770] for termination, which will be deemed as unfair dismissal if he fails to do so.[771]
The Act[772]states that summary dismissal shall take place when an employer terminates the employment of an employee without notice or with less notice than that to which the employee is entitled by any statutory provision or contractual term. The Act does not allow any employer to dismiss an employee without notice or with less notice than that entitled by any statutory provisions or contractual terms. The Act gives an exception to this is when an employee’s conduct shows he has fundamentally breached his obligations arising under the contract of service.[773]
The Act[774] further prohibits unfair termination of an employee. A termination will be proved unfair if the employer does not prove that the reason for the termination is valid, the reason for the termination if fair and the employment was terminated in accordance with fair procedure. Where an employee has been summarily dismissed or unfairly terminated without justification, they may lodge a complaint within three months of the date of dismissal to the labour officer or exercise their right to complain to the Industrial court too. In the case of George OnyangoAkuti v G4S security services Kenya[775], the claimant filed a memorandum of claim seeking the declaration that the dismissal was unfair, unprocedural, wrongful and illegal and consequential damages and costs. The burden of proof was on the employee to prove unfair termination. The court held that the summary dismissal of the claimant was not in accordance with justice and equity and thereof unfairly awarded him.
Alternatively, in WilferborceOjiamboOundo v Regent Management Ltd[776]the court award the Claimant a sum of Kenya Shillings eight million one hundred and thirty four thousand six hundred and forty three (KShs. 8,134,643/=) for unfair termination by way of summary dismissal. The Claimant in this case was employed by the Respondent for three (3) year contract running from 1st January 2008 and terminating on 31st December 2010 at the time of dismissal. On around September 2010, the Respondent suspended the Claimant on a basis of allegation of stealing. During this period, the Claimant did not receive any pay and the Respondent published in the newspaper that the former was no longer an employee. In his claim, the claimant relied on the HR Manual of the organization; the manual provided that an employee was to remain innocent until provided otherwise. The Court agreed with the Claimants argument in that if one is to be dismissed under s44 of the Employment Act[777], correct procedures must be followed.
Additionally in Bernard DamungaNdunda v Kerio Valley Development Authority the claimant was a professional surveyor for the defendant before termination of the employment. The plaintiff claimed summary dismissal and hence the issues before court were whether the claimant was accorded due process and whether there was a valid reason for dismissal. The claimant argued that being 46, the employee had 14 years before retirement and was thus entitled to gross salaries for 14 years in lieu of reinstatement order. [778]The court found that in view of Article 236 of the Constitution of Kenya 2010[779] theclaimant was entitled to reinstatement with full gross pay and monetary damages for being unfairly kept out of employment, amounting to a sum of Kenya Shillings Two million One hundred and Seventy Five Thousand Seven hundred and Seventy seven (Kshs. 2,175,777.00/=).
Layoff
As a system of separation, layoff implies the denial of employment or continued employment to the employees for reasons beyond the control of the employer. In a layoff, the relationship between the employee and the employer is not brought to a conclusive end. Instead, the relationship is suspended for some time, until such a time as the organization can engage the employee again.
Employers have responsibilities and obligations to the employees usually associated with the termination of employment. Law to notify the employee of the lay off in writing to the nearest employment service within two weeks of such layoff mandates an employer.[780]
A layoff may be necessitated by various factors. For instance, breakdown of machinery, seasonal fluctuations in demand, shortage of power and raw materials may lead to layoff. The nature of some industries is such that layoff is routine. For instance, mines and sugar industries, which are seasonal, have to engage personnel as the season demands and lay such employees off when they are deemed surplus to the organization. Should a lay off become permanent, it is called a retrenchment.
Retrenchment
Retrenchment refers to the permanent termination of an employee’s services due to economic reasons. It is traditionally used in instances of low economic growth (Cascio, 2002) and technological developments. The latter commonly arises in a situation where a single electronic machine is able to complete the work of numerous workers so the best interest of the organization lies in releasing workers to save salary costs.
Alternatively, Sronce.R & McKinley. M. (2006) has argued that there are three main social forces that lead to retrenchment; Constraining is the first force recognized. Here the organization is under pressure to conform to institutional rules, legitimate structures and managerial activities thus retrenchment can be traced back to company policies. Second is the force of cloning whereby organizations mimic bench markers of the industry to improve excellence and prestige. This is a costly process thus a budget may have to be implemented and in doing so workers are often sacrificed. Lastly, retrenchment may be traced to learning; this relates to the simple idea of implementing what was discussed in educational institutions. A key concept that is emphasized to students is how to run an efficient business by eradicating unnecessary costs. Following on from this, retrenchment can be seen as a viable option especially due to recent technological advances as mentioned above.
Although retrenchment is seen to be a cost cutting method, the process itself can become very expensive. The said process involves numerous costs including administration costs, legal costs, operational costs related to retraining of staff (Biller 1980) as well as severance pay. Conversely, if implemented properly, retrenchment can lead to higher organizational productivity and quality of working life. Furthermore, with reduced number of employees, the performance and innovation of remaining employees is likely to increase due to fear of being retrenched (Kanninen T,1995).
Currently there is no provision in the Kenyan legal system that deals with retrenchment directly. However, Art 41 of the Constitution[781], which recognizes fair labour rights under the Bill of Rights, captures this area indirectly. The Employment Act 2007 also highlights the notion of fair termination[782]. Furthermore, by virtue of Article 2(4) of the Constitution[783], international law is a source of law in Kenya and therefore the United Nations Declaration of Human Rights (UNDHR, 1948) as well as Article 13 of Recommendation No. 166 of the ILO Convention No. 158‑Termination of Employment Convention, 1982[784] are particularly relevant in this area. Although the listed regulations do not provide for retrenchment directly, the protection of employees is a key concept that is enshrined in the same. In addition to the relevant statutes mentioned above, case law is able to guide us through this area.
The UN carried out a noteworthy retrenchment exercise in 1986. Often referred as the ‘Halloween Massacre’[785], the UN retrenched numerous workers including five Secretaries General and six Assistant Secretaries General (Sciolino. E, 1986). The Secretary General was quick to recognize lack of resources and therefore proceeded to take clear and imminent action. In his attempt to take control of the situation, the Secretary General planned a 20% reduction in costs related to travel, hiring of consultants as well as temporary assistants and overtime employees. More importantly, he implemented a freeze in recruitment and adjustment in salaries aiding to save a further $15 million[786]. Additionally, majority of the senior delegates’ employment contracts were coming to an end in 1986 thus the Secretary General took this opportunity to implement his retrenchment activity. The said contracts were not renewed and therefore there was a 15% reduction in top-‐‑level positions over 3 years[787]. Not only did this cut costs but also helped to give the right signal to employees thus maintained their morale. It is clear that the aim of retrenchment here was to reduce costs and in doing so targeted employees. Furthermore, to have a successful retrenchment, the Secretary General had formed a special committee to discuss and plan to ensure effective retrenchment.
Although retrenchment may aid to cut costs, if it is not implemented correctly, the organization may end up facing greater costs. In Aviation and Allied Workers Union v Kenya Airways Limited and 3 Others[788], the Court at first instance held that the process was not carried out fairly and in accordance with the law governing the parties’ relationship thus reinstated all the 447 employees who Kenya Airways (KQ) had purported to retrench. Such reinstatement was supposed to be done without loss of seniority, continuity, benefits and privileges. The court emphasized that there ought to be a ‘genuine redundancy situation’ such that the organization is at risk of collapse to justify redundancy. [789]In its judgment the Court ordered all aggrieved employees to report back to work in addition to damages however upon appeal, the Court reversed this decision allowing for retrenchment. The Court of Appeal emphasized that retrenchment may be carried out due to economic, technological or any such reason however it must be done in good faith. This case alsohelped to highlight the process of choosing persons to retrench; Last In First Out is a common industrial principle unless there is good reason to depart from it. Further, s40 Employment Act refers to seniority to be taken into account when retrenching[790].
Retrenchment can be conducted in numerous manners from hiring freeze to voluntary separation. When initiating their retrenchment, Rift Valley Railways (RVR) opted to use voluntary separation as a method of retrenchment. RVR retrenched 330 people that formed 65% of their staff between September 2006-‐‑September 2011 (Oundo A. J, 2009). Although the retrenchment was majorly based on the fall of revenue, technological factors played a role too. RVR recognized that numerous employees only had five years left until their retirement and their value to the organization has depreciated hence they were offered early retirement. The aggrieved employees were paid a one-‐‑month salary for every year they had worked, Ksh 10,000/= to provide for transport of personal belongings as well as a golden handshake of Ksh.120,000/=.[791]
To avoid legal suits, RVR also provided for a route for complaints. If an employee felt they were wrongfully retrenched, he/she was able to complain to the complaints commission. An officer from the said commission reviewed the issue by consulting the legal department upon which the CEO was consulted. This process also involved an appeals committee. Although this is time consuming, it is justified since the Constitution also recognizes fair hearing processes under Article 50[792]. A clear policy helps to reassure retrenched workers and therefore reduces chances of legal suits unlike in the above KQ case.
Retrenchment is a double‑edged sword thus all options must be considered and it should be seen as the most viable option (Mishra 2008). Furthermore, it is important to take into account opinions of key stakeholders (Maphose 2009) and formulate a criterion to retrench that is agreeable to both the organization as well as the employees (Konosuky 2000). Not only does this allow for effective planning but also transparency which is key to good relationship between an organization and its employees.
Medical Separation
An employee’s employment may be validly terminated on the basis of employee’s illness or incapacity when it can be demonstrated that this has an adverse impact on the employee’s or ability to perform the inherent requirements of their job. This will be considered harsh and unreasonable if an employee can demonstrate the duties and responsibilities of their job even after a period of absence (Clayer, S, 2012). Employers must also be conscious of their obligations to employees who have been on long-‐‑term absence because of illness. Whilst an employer is entitled to a reasonable amount of information, it must ensure that any direction to the employee to provide the relevant medical information is a reasonable and lawful direction (Clark Kanne, 2012). In an Australian case Chetcuti v Coles Group Supply Chain Pty Ltd, [793]the employer terminated the employee for misconduct for not complying with its directions to supply it with information. However it was found that the employee was not guilty of any misconduct, as he had supplied his employer with a consent form allowing it to obtain the information directly from his doctor hence found the termination was harsh, unjust and unreasonable and the worker was reinstated.
In Morowa Fumo v Bamburi Cement Ltd[794]the claimant filed an application seeking an order compelling his employee of 24 years to retire him on medical grounds. The application was anchored on section 12 of the Industrial Court Act[795] and Article 41 of the Constitution[796]. The claimant developed difficulty in hearing as a result of noise pollution. Medical reports recommended that he retire. The court held that within 30 days of the ruling the claimant should retire on medical grounds. An employer may request a court to compel an employee to leave on medical grounds if the medical condition makes an employee incompetent.
Death
When an employee dies, the surviving family members or named beneficiaries may be eligible for certain benefit. The Employment Act, states that immediately an employer is brought to notice of the death of an employee he or she should give notice in the prescribed to the labour officer, or if there is no labour officer, the notice will be given to the district commissioner of the district in which the employee was employed[797]. The said Act[798] requires that if upon the death, the employee in the term of his contract of service, his legal representative is entitled to be paid wages, other remuneration and property due to the employee as at the date of death. The wages should be paid within 30 days of submitting the proof. An employer is required that within seven days of the payment, of the wages and other remunerations required, to provide the labour officer or the District commissioner with proof of payment. [799]
In Beatrice Wayeko (suing as administrator of the estate of Oscar Smith Njinuli deceased) v Cellulant Kenya Limited [800], the claimant who was seeking payment of the terminal benefits due to the deceased filed this claim was issued with a limited grant ad litem by the High Court. The respondent claimed all the due salaries and benefits were paid to a nominee Lucy Mukami. The claimant also claimed benefits from National Hospital Insurance Fund (NHIF) and National Social Security Funds (NSSF) .The court held that the payments to Lucy Mukami on account of terminal benefits due to the deceased was made in error and consequently made no effect.
EMERGING ISSUES
The Pensions Bill is currently being scrutinized at the National Assembly and the President has sent a memorandum to amend the same. In his memorandum, the President wants ‘CORD leaders to quit elective politics before they can be considered to have retired and therefore qualify for their terminal benefits’ (Ngirachu J., 2015). The memorandum seeks to reduce the lump sum payment to beneficiaries of the law so that the same is based on one year’s salary rather than the current position of one and a half year. Many MPs have criticized this as a mischievous act since it is unfair to deny one what he is due under law[801]. Retirement dues are to be remitted once one reaches the required age thus forcing the CORD leaders to quit elective positions in order to receive their pension seems to be illegal. It seems that law is being compromised for the sake of politics since the President’s actions are within the legal realm however his demands are unfair on moral grounds. The Constitution requires two thirds of the votes[802] to overturn recommendations of the president and currently, a mere 84 votes have been recognized to oppose the clause thus the said clause is still valid.
Another issue to consider is phase retirement. This provides for an employer to reduce either the number of days or workload that an employee who is nearing retirement is entrusted with. This allows for employees to have more free time thus it may advisable to introduce a statutory requirement to enforce phase retirement. The RBA can use the free period employees have to train them on how to live life after retirement. Not only will this improve execution of the RBA’s function but also stop the decline in life expectancy of retired employees.
Salary retrenchment cover is another emerging trend in employment dynamics in Kenya. For instance, the Barclays Bank of Kenya Ltd has introduced a policy whereby customers are cushioned from a disruption of their lifestyle in case of sudden retrenchment provided that the bank services their salaries (Techmoron, 2014).
Standard Media Group has recently unveiled the biggest retrenchment to be implemented by a Kenyan media house. The media house is offering an early retirement scheme to its employees ahead of the retrenchment activity planned to take place on 27thJuly, 2015. This move has come after a performance review by consulting firm Deloitte. In its briefing, the Group chief executive officer Sam Shollei stated that staff members who opt for the early retirement will get a better package compared to those who wait to be retrenched. He went further and said the retirement package would depend on the number of years worked, one’s salary and whether or not they are in a union (Jambo, 2015). Applications for the retirement schemes will be analyzed by the management and the same will be communicated to the employees in due time.
In conclusion, the current legal framework in relation to internal mobility and separation is inadequate. Although the Constitution aims to promote rights for workers, there is need for reform by the National Government on guideline and policies that will aid aggrieved employees. Such a change will be a long-term change thus it is vital that organizations produce their own policies on the same. This may be a costly process initially due to planning and research of the organization’s needs, however the same should be seen as a short-term cost in return for a long-term benefit of more motivated staff. As noted earlier, transparency is at the core of policy making thus if all employees are aware of the procedures, they are likely to be more motivated and therefore increase productivity in the workplace. Furthermore, with adequate notice and clear complaint procedures, employees are less likely to resort to formal dispute resolution(courts). This will not only help to keep legal costs of the organization low but also decrease chances of disrepute should they be involved in contentious proceedings. In essence, such policies and guidelines will ensure fundamental rights of all employees are upheld in accordance with the provisions of the Constitution of Kenya 2010.
