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The Constitution establishes the basic principles that set the foundation of the employer/employee relationship. The Bill of Rights sets out fundamental rights and freedoms that belong to each and every individual in Kenya.

Article 24 prohibits discrimination 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. This prohibition applies to the employer/employee relationship as well.

Article 32(2) prohibits denial of access to employment because of a person’s belief or religion.

Article 41 is key. It gives every person the right: –

  1. To fair labour practices;
  2. To fair remuneration;
  3. To reasonable working conditions;
  4. To form, join or participate in the activities and programmes of a trade union; and
  5. To go on strike.

Article 41(3)(3) gives every employer the right: –

  1. To form and join an employers’ organisation (such as Kenya Association of Manufacturers); and
  2. To participate in the activities and programmes of an employers’ organisation.

Article 41(4) gives every trade union and employer’s organisation the right to: –

  1. To determine its own administration, programmes and activities;
  2. To organise; and
  3. To form and join a federation (such as Federation of Kenya Employers).

Article 41(5) gives every trade union, employers’ organisation and employer the right to engage in collective bargaining.

Article 53 gives every child the right to be protected from abuse, neglect, inhuman treatment and punishment, and hazardous or exploitative labour;

Article 162(2) gives Parliament the power to establish courts with the status of the High Court to hear and determine disputes relating to employment and labour relations. The Employment & Labour Relations Court was established pursuant to this Article.

All employment laws and all labour practices should embody the principles set out in the Constitution failing which they stand to be challenged as being null and void for being unconstitutional.

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Think of the Constitution as the roots of a tree – it anchors and sets a foundation for all other employment laws.

About Anne Babu

Anne is an Advocate of the High Court of Kenya and the Founding Partner of Anne Babu & Co. She has practised employment law for over 12 years and her employment law practice has been recognized by the prestigious Chambers & Partners. Anne cares about employers and their labour issues.


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