There is no problem with Atwoli being at the helm of COTU for life

A post on social media platform X by former Makueni governor Kivutha Kibwana to Central Organisation of Trade Unions’ (COTU) Secretary General, Francis Atwoli following the birth of his son recently has, once again, brought to the fore an ongoing public debate over term limits for trade union officials.

The March 28 post was double-edged. Prof Kibwana posted thus: “I heartily congratulate the @AtwoliDza family for the new arrival in their family. @COTU_K should give their Secretary General a well-deserved paternity leave during which they can also discuss: Should COTU and trade union leadership be a life tenure affair?

The push to impose term limits for trade unions was first raised by Migori Senator Eddy Oketch, whose Labour Relations (Amendment) Bill, 2024b proposed to limit the terms of current and future union officials. Oketch’s Bill was understandably met with strong opposition from individual trade unions and their federations.

The youthful senator soon realised that the question of term limits on trade unions was a complex one, with arguments, for and against, laden with political overtones that neither the opposition of which he is a member, nor the government side seemed enthusiastic to deal with.

Trade unions played a pivotal role in the agitation for Kenya’s independence from British colonial occupation, and continue to be critical actors in post-independence governance and electoral processes. It’s, therefore, not uncommon to see consequential political formations reach out to trade unions for strategic alliances ahead of general elections. COTU, the largest umbrella organisation for most trade unions in the country, wields immense political influence, hence the constant jabbing and snooping into its internal governance processes and long-held electoral traditions.

Had it been enacted, the Labour Relations (Amendment) Bill, 2024, would have changed the principal law to provide for the term limits of trade union officials. In its memorandum of objects and reasons, the sponsor left no doubt as to who would have been the first casualties of the changes, designed as it was to affect two main clauses of the principal law.

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After the short title, the Bill went straight for the jugular of its intended targets, stating that the Labour Relations Act is “hereby amended by inserting a new section 34A immediately after section 34 to provide that “an official of a trade union, employers’ organisation or federation shall hold office for a term beginning on the date on which the official was elected, and ending when a person is next elected as an official in accordance with section 34”.

Ordinarily, statutes are supposed to be retrospective. A retrospective statute operates for the future. That’s to say, they take effect from the date they are enacted onwards, and not from date in the past before they were enacted.

For instance, the clause that introduced the two-term limit in Kenya’s electoral procedure in 1992 was retrospective. It’s on this premise that then president Daniel arap Moi still contested for the presidency and not only went on to clinch the coveted seat in the year’s elections, but also for another term against a divided opposition in 1997. But as a result of the retrospective nature of the two-term clause, therefore, Moi’s two-term limit came to a screeching halt in 2002, despite taking over from Jomo Kenyatta upon the latter’s demise in 1978.

But the effect of Oketch’s Bill would have been different. It had been framed to be retroactive, that is, to operate backwards as of a time prior to its enactment. It would, therefore, have changed the law from what it was. In clause 2 of the proposed amendments, the sponsor went further to propose that “a person shall not hold office as an official of a trade union, employers’ organisation or federation for more than two terms”.

In clause 3 of the amendment Bill, the sponsor proposed, perhaps for the avoidance of doubt that: “existing officials of a trade union, employers’ organisation or federation shall be deemed to be duly elected under this Act for the remainder of their term”. This would have sent a number of trade union officials home, depending on how long they may have been in office, explaining the immediate war cry to rally trade unions for battle against what they rightly perceived as undue interference in the internal affairs of their unions.

Proponents of term limits for trade union officials argue that it would promote fresh ideas and perspectives in leadership, and prevent what is largely perceived as inertia. They also argue that such a move would ensure that new leadership styles are introduced, preventing the same individuals from holding power for extended periods and potentially leading to stagnation.

There would also be increased accountability and transparency, as officials are likely to embrace the same, fearing that they might be replaced if they fail to represent their members' interests effectively.

Term limits, they also say, would allow more union members to have the opportunity to lead and represent their colleagues, fostering a more inclusive and democratic union structure.

But there are also persuasive arguments against term limits for trade unionists. The most obvious is the disruption of continuity and loss of expertise that the organisations need at this time of global uncertainties in labour relations. There is no denying that such disruptions can potentially lead to loss of valuable experience and expertise that long-serving officials have accumulated over the years.

Those against term limits have made a powerful argument that it’s largely on account of Atwoli’s extensive experience and expertise in trade union matters that the veteran trade unionist serves not only as the Secretary General of the Kenya Plantation and Agricultural Workers Union, and the umbrella COTU but has also risen through the ranks of the trade union movement regionally and internationally.

Imposition of term limits from outside trade union structures, therefore, would be an infringement on the autonomy of trade unions and their ability to govern themselves. The danger with term limits is that it has the potential to shift the focus from the core purpose of trade unions of representing the interests of union members to campaigning for elections.