LABOUR RIGHTS IN UGANDA: MAKING DECENT WORK A REALITY. Summary of Proceedings. October 3 rd, 2014

Transcription

1 THE 7 th ULS ANNUAL RULE OF LAW SYMPOSIUM LABOUR RIGHTS IN UGANDA: MAKING DECENT WORK A REALITY Summary of Proceedings October 3 rd, P a g e

2 "As labor creates the wealth of the country, we demand the passage of such laws as may be necessary to protect it in all its rights." -- John Peter Altgeld 1.0 Introduction Uganda is signatory to several international instruments enshrining labour and other economic rights and has integrated some of these rights into domestic law by way of the 1995 Constitution of the Republic of Uganda (as amended); which stipulates and protects a wide range of economic rights primarily under Article 40. Every person in Uganda has the right to practice his or her profession and to carry on any lawful occupation, trade or business. Forced labour (Art. 25) and child labour (Art. 34(4)) are prohibited by the Constitution and safe and healthy working conditions (Art. 40(1) (a)), equal pay (Art. 40(1) (b)), freedom of association and collective bargaining (Art. 40(3)) and maternal protection at work (Art. 40(4)) are guaranteed by the Constitution. In spite of the above laws and policies, many Ugandans still suffer workplace hardships due to an unfavourable work environment as enforcement and compliance to the policies and the legislation obtaining remains largely lacking. Those seeking justice in labour disputes hardly obtain justice due to a lack of will or capacity of the national institutions entrusted with this responsibility. Aggrieved employees are left with no option but to seek justice in the courts; which would be a more costly option in terms of resources and time and inefficient in a number of respects. The courts have a huge case-backlog, tainted with corruption and have inaccessible procedures and rules. Worse still the Industrial Court though in existence is grappling with an alarmingly meager budgetary allocation of UGX 2000,000 to run its business; not to mention that it is not fully furnished and lacks the requisite human resources except two Judges. This fetters the courts operations and ultimately access to justice. Further, although other East African countries have established a reasonable minimum wage, the legal minimum wage of UGX 6,000 (approximately USD 2.5) has not been revised since Overall, Uganda has made commendable strides in formulating and enacting the relevant policies and legislation, however effective compliance with and enforcement of these values remains inadequate. In keeping with its mission therefore to promote respect for human rights, the Rule of Law and Access to Justice in Uganda, the Uganda Law Society (ULS) is duty bound to promote absolute respect for the rights of workers; and to preserve and defend the Constitution of our land. This year the ULS commemorated its seventh annual Rule of Law day on October 3 rd 2014 under the theme Labour Rights in Uganda: Making Decent Work A Reality with the aim of promoting a national discussion on the rights of workers and the current impediments to the full enjoyment of the same; for economic development and social transformation. The objectives of the 2014 Annual Rule of Law Symposium were to: Foster continued dialogue and debate with respect to labour rights and law in Uganda; with a view to promoting observance of the same for social and economic transformation in Uganda; Empower, encourage and support the legal fraternity as human rights defenders to effectively participate in advocating for the observance of labour and economic rights and laws in Uganda; Create and strengthen synergies between the State and other stakeholders as a way of continuously checking on the labour and economic standards and obligations in accordance the country s international obligations. 2 P a g e

3 This event was held under the auspices of the Konrad Adenauer Stiftung - Rule of Law Program for Sub- Saharan Africa, TradeMark East Africa and the Democratic Governance Facility. 2.0 Official Opening Ceremony 2.1 Welcome remarks by Mrs. Ruth Sebatindira - President, Uganda Law Society Mrs. Sebatindira commenced her remarks by extended a warm welcome to all the participants at the Symposium. She said the theme for this year, Labour Rights in Uganda: Making Decent Work a Reality, had been chosen to address the obvious gaps in labour rights, legislation and practices for both formal and informal employment in Uganda. She stressed that lawyers have a duty to promote the rule of law in all aspects of society. She cited the growing numbers of women, especially, engaged in informal employment with no idea about their rights and no access to justice. She said that Uganda as a nation falls far short of international labour rights standards, and we must learn key lessons from other jurisdictions. However, she advised the legal community to start getting their own houses in order by looking inward as lawyers and employers and make decent work a reality right from their own homes and workplaces. She concluded by thanking the keynote speaker, the panelists, the Rule of Law Committee and the ULS Secretariat who organised the day s events. 2.2 Opening remarks by Mr. Peter Wendoh - Project Advisor - Konrad Adenauer Stiftung Rule of Law Program for Sub-Saharan Africa In his opening remarks, Mr. Wendoh applauded the ULS for consistently organizing the Rule of Law Symposium for the past 6 years, noting that Konrad Adenauer Stiftung (KAS) was proud to be associated with the event. He said the theme focus on labour was relevant in light of the growing population in Uganda and Africa and noted that large numbers of youth can either be a resource to a nation or a danger to meaningful growth and social stability. He stressed that the youth had to be employed meaningfully, or governments would continue to suffer the consequences of actions born of desperation. Quoting Nelson Mandela, Mr. Wendoh noted: Money doesn t create success, but the freedom to make it will. He advised the African leadership to wake up and not simply dis h out elections handouts designed to turn the youth into a campaign weapon. He added that there is a need to draw a clear road map to use their strength, skills and knowledge meaningfully, as well as to promote arts, sports and agriculture to enhance economic empowerment and human rights. 3 P a g e

4 The relevance of human rights diminishes when people are on empty stomachs. African nations always decry a lack of political goodwill, but how long will we wait for this goodwill? He concluded by proposing that the legal fraternity should begin the fight for labour rights in their own backyard by respecting the rights of the young lawyers and other staff in their own firms. 2.3 Remarks from Ms. Allen Asiimwe - Country Director for Trademark East Africa - Uganda On her part, Ms. Asiimwe s begun her remarks by emphasizing the importance of harmonizing labour laws and practices across East Africa. She noted that it had become progressively easier to move goods across borders, but that the same did not apply to labour. She decried the lack of strong professional associations across East Africa which could attract labour movement. Ms. Asiimwe stressed the need for alignment of labour laws in the East African Community, especially with regard to establishing an effective complaints mechanism for addressing cross-border labour issues. She said the creation and implementation of effective mutual recognition agreements would ensure that Uganda is not left behind or caught unaware by changes across the region. 2.4 Remarks from Dr. Christopher Mbazira - Chairperson of the ULS Rule of Law Committee Dr. Mbazira explained that the theme for this year s symposium had been informed by the challenges in the labour market especially for the youth. He pointed out that it was not enough to have civil and political rights. One must also have economic, social and cultural rights to balance things out. However, the current labour situation in Uganda is characterized by several negatives and unknown quantities. The gap between the rich and the poor and the employed and unemployed is widening; issues of poor pension management and liberalization have arisen; there is high youth unemployment and human trafficking; child labour abounds and there is a general lack of protection for workers especially in the informal sector. 4 P a g e

5 Dr. Mbazira concluded by pointing out that many discussions focus on the rights of people who are already in some form of employment. He advised stakeholders to be aware of and not ignore the right to access a means of earning a living in the first place, not forgetting the right to work under decent conditions. 3.0 Summary of Proceedings 3.1 Keynote address by Mr. Francis Atwoli - President of the Pan African Labour Movement and the Organisation of African Trade Union Unity, and Secretary General of the Central Organisation of Trade Unions in Kenya Mr. Atwoli drew anecdotes from the history of unionism in Kenya, as well as his own history, stressing that access to justice was a pillar for development on the continent. He called on lawyers to remember their duty as champions of social justice, recalling fondly many occasions when lawyers had shown up to defend him pro bono in one labour dispute or another. He pointed out that lawyers were not only instrumental in trade union activities, but an inescapable necessity. He said the symposium was timely and would be essential in creating awareness and spreading information and knowledge about labour issues. Mr. Atwoli pointed out that after 50 years of independence Kenya is enjoying separation of powers and the full independence of their courts of law. Indeed, the Kenya Industrial Court is a standalone court with 15 judges. He said lawyers were the eyes of society in as much as ensuring that the law applies to all persons equally and universally accepted standards of human rights were respected. Mr. Atwoli outlined the decent work agenda which highlights: basic income security, enjoyment of rights at work and absence of forced and child labour, freedom to form trade unions, the right to productive work and access to earning, employment creation, enhanced social protection and effective conflict resolution mechanisms and uniform labour legislation in East Africa. He concluded with a vote of thanks and an admonition for all present to stop paying workers out of their pockets, but to champion the setting of a minimum wage; a basis for collective bargaining across East Africa. On the front row - Judges of the Industrial Court - Hon. Justice Ruhinda Asaph Ntengye, the Hon. Lady Justice Linda Tumusiime Mugisha and the Keynote Speaker - Mr. Francis Atwoli 5 P a g e

6 3.2 The State of the Industrial Court in Uganda Hon. Justice Ruhinda Asaph Ntengye - Head of the Industrial Court of Uganda The Hon. Justice Ntengye gave a brief history of the Industrial Court of Uganda, which was established by the Labour Disputes (Arbitration and Settlement) Act of It is statutorily supposed to be led by five individuals, consisting of two judges a chief judge and a judge of the High Court as well as three panelists including a workers representative, an employers representative and an independent member. The Industrial Court is fully constituted, and is located in Ntinda, Kampala, Uganda. The allotment of space, human resource, furniture and funding, however, has been insufficient for the court to begin hearing over 300 complaints that have already been registered. Further bottlenecks to the operation of the Industrial Court included procedural issues in filing cases by memorandum or affidavit of claim. Furthermore, a quorum of all five sitting members has to be reached for every sitting. If one judge could decide and deliver a death sentence in a capital offence, Justice Ntengye wondered, what industrial matter could possibly require five people to handle? On the positive side, the court was set to have a session at the end of October In conclusion, Justice Ntengye noted that the Industrial Court was largely ineffective as a legal body as long as it continued to operate as an autonomous court under the Ministry of Gender, Labour and Social Development and recommended that instead it should be converted into a division of the High Court. The Hon. Justice Ntengye delivering his presentation at the 7 th ULS Annual Rule of Law Symposium 4.0 Panel Discussion As part of the programme, a panel discussion was designed to provide an opportunity for a selection of 6 labour experts to share their anecdotes, recent experiences and data points about the topic. The panel discussion was moderated by Mr. Gawaya Tegulle, who is the Director of the Conference on Democracy in Africa, a think-tank on issues of governance based in Kampala, Uganda. A brief profile of the panelists is as follows: Ms. Lilian Keene Mugerwa - the Executive Director of Platform for Labor Action; a recognized leading civil society actor in the promotion and protection of labor rights and the campaign for social protection and human rights in Uganda both by Government and the Civil Society. 6 P a g e

7 Mr. Usher Wilson Owere - the Chairperson of the National Organisation of Trade Unions (NOTU) Mr. Moses Segawa - a Partner and a specialist in employment and employee benefits at Sebalu & Lule Advocates; a leading Ugandan business law firm. Ms. Harriet Luyima - the former Commissioner in charge of Labour at the Ministry of Gender, Labour and Social Development Mr. Wandera Daniel Ogalo - a Managing Partner at Victoria Associates (with over 3 decades experience in legal practice as well as extensive experience in EAC Integration matters) Mr. Martin Wandera - a former workers representative in the 7 th Parliament and currently serves as the Executive Director at Centre for Labor Research and Studies. Mr. Wandera has extensive knowledge and expertise in Labor Market Research & Analysis, Strategies for Job-rich Growth, International Trade Agreements, International Labor Standards, Public Policy Formulation and Social Protection A cross section of panelists at the ULS 7 th Rule of Law Symposium on 3 rd October Key Emerging Issues from the Panel Discussion It was discussed and agreed that lawyers have an important role to play in championing for decent labour as defenders of social and economic rights. It was suggested that the government fund could facilitate legal representation for labour disputes, and that the existing pro bono efforts should be publicized. It was noted that a draft legal aid policy from JLOS was presented over two years ago and is still awaiting cabinet approval. The panel also raised the concern about employers having the advantage of hiring good lawyers who can champion their interests to the detriment of many employees in Uganda who are unable to afford a lawyer. It was noted that there are some challenges that the labour union movement faces that need to be addressed if it will appeal to the general public and garner massive support. 7 P a g e

8 There is a need to harmonise labour policies across East Africa to ensure free movement of labour. Lawyers should be at the forefront of examining how this will affect legal processes and provide solutions. Lawyers may see their role in labour as drafting legislation and interpreting the law. However, what is legally right is not always what is practical and does not always facilitate industrial peace. Lawyers should be sensitive to employer-employee interests, dynamics and relationships. Access to justice for the majority of citizens remains a pipe dream, hence the need to develop mechanisms for the informal sector to settle disputes. The panel also highlighted the structural inefficiencies caused by the current structure of the Ministry of Labour, Gender and Social Development. It was proposed that one way to address this could be to create a separate ministry of labour affairs. It was noted that the government policy of favouring investors over Ugandans is putting many workers at the mercy of investors. The issue of public service dispute mechanisms vs. private sector dispute resolution arose. The government is an employer and also sovereign. How should it wear both hats when government can only negotiate with trade unions at the time of the budget? There is an ideological conflict between the International Labour Organization and the World Bank, and therefore a corresponding divide between the ministries of labor and finance. There is a need to harmonize these positions to the best possible advantage of the worker. Mr. Atwoli responding to issues raised during the plenary session 4.2 Key Emerging Issues from the Plenary Following the panel discussion, the floor was opened to the ULS membership to provide their thoughts and perspectives on the issues raised. Notable among the speakers was Professor Jean Barya and Workers MP Arinaitwe Rwakajara Katambuka. The contributions and the summaries of the panel discussions were as follows below. 8 P a g e

9 The Industrial Court is an important court and all efforts should be made to make it more functional. Uganda needs a minimum wage, and a swift move from minimum wage to living wage to reflect the reality of our diverse living standards. The government needs to adopt the legal aid policy to ensure that indigent men and women fighting for their rights have access to legal representation. Ugandan employers as a whole do not value labour and perceive fairly paid employees as a risk. How can we defend the principle of equality before the law when an employer and employee are never equal to begin with? There is a need to explore alternative dispute resolution methods for those in informal employment Labour legislation has made some great strides including providing for 3 months maternity leave, 4 days paternity leave and other HIV and gender considerations. In all, Uganda has a set of good labour laws but what is required is implementation. A ULS members contributing to the plenary discussion 5.0 Outcomes of the Symposium Labour rights often take the back seat as most legal practitioners hardly consider this an area for an effective, interesting and lucratic practice. The Symposium therefore served to create awareness among the legal fraternity on the plight of workers and the crucial action points in this regard. It further served as an opportunity for reflection on the role of lawyers as agents for social justice and transformation. 9 P a g e

10 Following deliberations at the Symposium, ULS members resolved to seriously consider defending labour rights and disputes within their respective firms and organizations. The ULS also has identified some aggrieved workers and plans to undertake a public interest litigation to cause social transformation in the labour field and to further inform jurisprudence on the same. 6.0 Conclusions and Key Recommendations The Chairperson of the ULS Rule of Law Committee thanked all the speakers and members for a fruitful discussion and pledged that the Law Society would synthesize the discussions and draw some key actions going forward. He presented a summary of the key emerging issues and recommendations as below: Lawyers should continue championing social justice, specifically by playing an instrumental role in defending labour rights The legal profession should identify ways to support a strong and enlightened labour movement which will help to promote the status of labour in the country. The ULS should mobilize lawyers opinions on vital labour issues and help government to enact progressive labour laws. The legal profession needs to spearhead the review of the legal framework and the operations of the Industrial Court to ensure that due regard is paid to the adjudication of labour disputes. Identify how the common market protocol can best be implemented to allow free movement of labour across the East African Community. The ULS should support the demand for minimum wage as well as the improvement of labour relations in public service. Participants at the ULS 7 th Annual Rule of Law Symposium 10 P a g e