The apex court, in its decision, settled a long running supremacy war between the Employment and Labour Relations Court (ELRC) and the High Court over which court has jurisdiction to determine the constitutionality of statutes touching on employment and labour disputes.
“For the avoidance of doubt and so as to stop the pendulum of jurisdictional re-jigging that has characterised this case from the beginning, we hereby restate that the ELRC has jurisdiction to determine the constitutional validity of a statute in matters of employment and labour,” ruled the judges.
The judges stated that although the High Court retains residual jurisdiction to determine whether any law is inconsistent with the constitution, there is nothing that precludes the ELRC from determining the constitutional validity of a statute which is at the centre of an employment dispute.
According to the judges, the ELRC is only barred from sitting as if it were the High Court in determining the constitutionality of any law in circumstances where the disputed statute has nothing or little to do with employment and labour relations. The decision was unanimously made by seven Supreme Court judges – Chief Justice Martha Koome and Judges Philomena Mwilu, Mohamed Ibrahim, Smokin Wanjala, Njoki Ndungu, Isaac Lenaola and William Ouko.
The dispute started when the government, through parliament, enacted the National Social Security Fund (NSSF) Act which increased employees’ monthly contribution to the national pension scheme from KSh200 to KSh2 000 (US$13.75). Several workers’ unions and employers’ federations challenged the statute at the ELRC, claiming that it was unconstitutional. The court agreed with their grievances and declared the Act as illegal, unconstitutional, null and void.
However, after the government appealed the decision, the Court of Appeal overturned the ELRC judgment, stating that it had no jurisdiction to determine the constitutional validity of a statute. According to the Appellate Court, the ELRC lacked powers to handle the dispute since it did not involve employer–employee disputes but rather the constitutionality of an Act of Parliament which could only be determined by the High Court.
The Supreme Court however disagreed with the Appellate Court’s findings, ruling that the provision of social security benefits, including pensions, is an integral component of employment and labour relations both domestically and internationally, which the ELRC was justified to handle.
“The Court of Appeal adopted a restrictive view of the implications of the NSSF Act 2013, in holding that the matter did not emanate from an ‘employer–employee dispute’. Even if the matter did not emanate from an employer–employee dispute within the confines of the ELRC Act, to the extent that it introduces enhanced and mandatory contributory amounts of employee earnings, the Act has potential to ignite justiciable grievances from certain cadres of employees. No doubt these grievances would end up at the ELRC which would likely be called upon, as it was in this case, to determine the constitutional validity,” they ruled.
The court declared that stripping the ELRC of the authority to determine the constitutionality of statutes would leave it jurisdictionally ham-strung, a consequence that could hardly allow it to determine some employment and labour disputes.
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