Ruto's push to protect Big Tech sparks constitutional showdown

President William Ruto’s plan to grant legal immunity to global tech firms is facing a constitutional challenge, placing his administration’s economic agenda in direct conflict with the rights of Kenyan workers.

A petition filed by 35 tech workers at the High Court challenges sections of the Business Laws (Amendment) Bill 2024, which would shield international companies from lawsuits over labour and human rights violations.

The workers accuse the Senate of unconstitutional "legislative capture" alleging it fast-tracked the Bill without public participation after intensive lobbying by Big Tech.

“The workers decry Kenya’s parliament capture by tech companies at the expense of tech workers, who have raised an alarm that they are forced to work under extremely exploitative and unlawful conditions,” reads the court document.

The petitioners argue that the Senate failed to carry out public participation and locked them out of the legislative process by denying them an audience to share their concerns on the Bill.

The workers’ petition reveals the Bill was a direct response to a lawsuit against Meta and its local partner, Sama, concerning human trafficking and rights abuses. The firms tried to stop the case but lost.

They pointed to the President’s own public admission on December 9, 2024, that Sama "begged him for protection," prompting his promise to push for change in the laws to ensure they "would never be sued for any reason whatsoever."

The petition was filed by tech workers from various fields, including platform work, content moderation, ride-hailing, and algorithm training through the support of The Oversight Lab, which examines and challenges the systemic exploitation of workers by Big Tech companies.

While the government, through the mover of the Bill Senator Aaron Cheruiyot, argues that a change in the law is necessary to retain investment and create jobs, tech workers state that the move would lead to sacrificing fundamental constitutional protections and granting corporations impunity for exploitation.

“The tech workers challenge this legislative capture by tech companies and protest that the Senate violated the Constitution by denying them audience and failing to carry out public participation on the Bill and instead favouring tech companies,” reads the statement.

In their petition, the workers argue that the world has witnessed the unprecedented widespread presence and ubiquity of technology companies, whose influence ranges from common ride-hailing and e-commerce services to social media platforms that dictate content exposure through their algorithms.

It was reported that major tech firms such as Uber and Facebook significantly impact the Kenyan economy, with Uber contributing Sh14.1 billion in 2023 and Facebook having approximately 17 million users.

This extensive presence has increased demand for local tech workers such as ride-hailing drivers and content moderators, who help power and maintain these platforms.

Additionally, Kenya’s young, educated population has been engaged in training algorithms for various technologies, including AI and social media systems.

The petitioners highlighted that these companies operate remotely without a registered physical presence in Kenya borderless nature of the Internet makes it possible to draw revenue from any country in the world without a physical presence in that country.

They conduct business through local agents such as business process outsourcing (BPO) firms or online platforms where workers can sign up and be assigned work, which is monitored through extensive surveillance features.

“Tech work has become a very exploitative area of work sometimes causing irreparable harm on tech workers,” reads the petition.

They particularly mentioned exploitative practices by the companies, including human trafficking of workers through their agents, forced labour through algorithm manipulation, random account shutdowns and unlawful termination of contracts to punish any workers who advocate for fair working conditions.

The workers sued tech companies over the unlawful and unconstitutional practices and the companies fought back, claiming they are foreign companies that cannot be held accountable in Kenya.

In one particular case, former Facebook content moderators filed a petition in 2022 and 2023 before the Employment and Labour Relations Court on grounds that they had been subjected to human trafficking by Meta and its agent and tricked into doing toxic work for Meta, which had left them inundated with mental illnesses.

Meta challenged the jurisdiction of the Employment and Labour Relations Court to hear the cases against it on the grounds that it was a foreign company and further on the grounds that it was its agent, and not Meta, that hired the moderators, even if it was Meta that benefited from the work done.

The tech company lodged an appeal but lost it and the cases were referred back to the Employment and Labour Relations Court for trial. The cases are currently undergoing pretrial before the ELRC.

In November 2024, shortly after the dismissal of Meta’s appeal, the Business Laws (Amendment) Bill was introduced before the Senate by the Senate Majority Leader Cheruiyot.

The petition challenges Clause 10 of the Bill, which makes local BPO agents solely liable for any claims brought by tech workers.

The workers argue this is unjust because it shields the foreign tech companies, who are the ultimate beneficiaries of the labour and who control the tools of trade, from all legal responsibility.

“The impact of this provision was to cushion tech companies from being held accountable for violation of Kenyan laws,” reads the petition.

Cheruiyot had once announced in public that the only way to keep Kenya competitive in the global market for tech jobs was by making necessary changes to the law and to attract more investments and job creation.

On a different occasion in a town hall meeting in Nairobi, Ruto disclosed that upon being sued in the constitutional petitions, Sama had run to him and asked for his protection from tech workers and he promised to change the laws to prevent outsourcing companies from being sued in Kenya in the future.

“Those people were taken to court, and they had real trouble. They really bothered me. Now I can report to you that we have changed the law, so nobody will take you to court again on any matter,” said Ruto.

The President stated that the outsourcing company had planned to relocate to Uganda “because many of us were giving them trouble.”

“This background has been given to show this Honorable Court that the amendments proposed in the Business Laws (Amendment) Bill are not only contentious but also detrimental to tech workers in Kenya,” the petitioners argued.

“While there is a primary duty on the Senate to facilitate genuine public participation in legislating all bills, the duty was even higher in considering this Bill given its far reaching consequences, and further given that the legislation had already been heavily influenced by tech companies and by their BPO agents,” they told the court.

Having been passed by the Senate, the Bill awaits transmission to the National Assembly for consideration.

Among the orders the petitioners are seeking include a declaration by the court that the Bill was unconstitutionally passed, a declaration that the Senate violated rights and freedoms, including pubic participation, and that the Senate process was procedurally and substantively flawed and in violation of the Constitution.

They also want the court to issue a permanent injunction restraining the Senate, the Attorney General and the National Assembly from taking any further action in relation to Bill, including transmission to the National Assembly, debating the bill, passing it or transmission to the President for assent.