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Hastings International and Comparative Law Review

Authors

Ann Munene

Abstract

A few years after the fall of apartheid, South Africa adopted one of the most progressive constitutions in African history in 1997. This adoption affirmed the emerging trend of constitutional reform embraced by many African nations, since the 1960s when most gained their independence. Most constitutional reform in Africa, focused on increasing human rights protections for Citizens. One such right is the right to strike.

This note will examine the Kenyans' choice to include a "Right to Strike" provision in the newly adopted Constitution of 2010, in the face of a similar provision in the Labour Relations Act of 2007. The Kenyan teachers' and doctors' strikes that occurred in 2012, will be compared to a similar South African national public workers' strike that occurred in 2007. This comparison will be particularly instructive because the New Constitution of Kenya was closely modeled after the South African Constitution. These case studies will reveal the conflict of law problem encountered by the Kenyan public sector workers during their strikes in 2012. This tension in the law was not addressed during the constitutional reformation process or in any subsequent law. These case studies demonstrate the need to put in place practical and appropriate implementation mechanisms in certain areas of the New Kenyan Constitution.

This note will propose a framework that includes increased utilization of the Commission for the Implementation of the Constitution, a nonjudiciary entity. Additionally, it would be prudent for the executive and judicial branches to join arms, in order to allow Kenyan Citizens to exercise their right to strike without having to violate the law through civil disobedience. Changes in implementation will affirm the spirit of the New Constitution, and the desire that it be a reflection of the people's "will and aspirations."

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