It is ten years since the Industrial court was re-established to help settle labour disputes expeditiously, promote industrial harmony and improve working conditions. In the first dispatch of this two-part series, SULAIMAN KAKAIRE asks if the court has lived up to expectations.
At 7am on December 20, 2016, Siraje Wakinina started a 225-kilometre journey from Mbale to Kampala to pursue a labour dispute involving Mbale Youth Development Association (MYDA) as claimants of salary arrears against Mbale municipality.
Wakinina says their dispute goes back to November 2015 when MYDA was contracted by Mbale municipality authorities to provide cleaning services for the eastern Ugandan town.
“We negotiated to be paid Shs 1.5 million for the work. So, 28 of us belonging to the association started doing our work as agreed,” Wakinina said.
Although MYDA did the work, the municipality did not pay, for about 11 months.
“During that period, Mr Robert Wambede, the assistant town clerk of Mbale municipality, kept on promising us that we shall be paid our money, until we were informed that we are not going to be paid our wages,” Wakinina said.
In November 2016, MYDA lodged a complaint with the Mbale district labour officer, Sebra Wabomba – who wrote to Wambede on the matter. However, despite receiving several formal communications, Wambede did not respond.
On December 16, Wabomba referred the matter to the ministry of gender, labour and social development in Kampala – hence the journey.
“I have been referred to the Industrial court by the ministry. When I went to the ministry, I was bounced and advised to come here. The good thing is that I have registered my claim here. It is 2pm and I have to go back to Mbale,” Wakinina told The Observer meeting the court’s registry officials.
Asked about the procedure he had gone through to register the claim, Wakinina said: “It is a lengthy process, expensive and time-consuming but what else can we do? I wish we had options.”
Wakinina’s story mirrors the experience that many Ugandans who seek labour justice go through.
BACKGROUND
The Industrial court was re-established in a bid to strengthen labour administration. But even its return was wrought with administrative lethargy. Although the Labour Disputes (Arbitration and Settlement)Act that established the court was enacted in 2006, the court only became operational in July 2014. But even then, the hearing of cases started in November 2014, after resources were availed to the court.
Prof John Jean Barya, a labour law lecturer and litigator in the court, says this protracted process reflects the inherent resistance against the court’s formation and function.
“The president was against the establishment of the court,” Barya said. “Indeed, the law that creates the court was passed in a day and a half, after pressure from the international community was mounted on government to pass progressive labour laws. It is the reason why, after its establishment, it became operational after eight years and there is a deliberate attempt to deny it resources.”
Ironically, during the same period, government had identified strengthening of labour administration, particularly strengthening of the Industrial court to adjudicate labour disputes, as one of the priorities in the National Development Plan (NDP) for the (2010/11 – 2014/15) period.
LEGAL FRAMEWORK AND COURT
Section 7 of the Labour Disputes (Arbitration and Settlement) Act, 2006 mandates the court to arbitrate labour disputes referred to it, and resolve questions of law and fact arising from referrals by any other court.
The court comprises the chief judge, a judge, an independent member, a representative of employers and a representative of workers. According to the Labour Disputes (Arbitration And Settlement) (Industrial Court Procedure) Rules, 2012, the court’s procedures are not like those of ordinary courts.
For instance, in proceedings before the court, a party may appear by himself/herself or by an agent including a labour union or an employer’s organisation or may be represented by an advocate; and there is no payment of court fees at the filing of a matter.
The director of labour at the ministry, Martin Wandera, told The Observer that the lessening of procedures in the court was intended to quicken access to justice and make it affordable.
“It is a specialised court and a court of equity,” Wandera said.
PERFORMANCE OF THE COURT
Since it started operations in July 2014, the court has registered 1,330 cases, out of which 237 have been handled and 1,093 are pending. Going by those figures, it appears that people like Wakinina will have to wait a while before their dispute is resolved.
Prof Barya agrees that the court is performing below par.
“Going by this disposal ratio, it appears that things like access to justice as it was intended have not been fulfilled,” he said.
However, Barya argues that the blame for such a performance should not be placed entirely on the court, but largely on the law that set it up.
“For instance, why should the law require two judges in the court to all sit in the same panel at the same time? Does it have the luxury of doing that considering the number of cases filed in the court?” Barya said. “If a single judge was sitting in the matter, perhaps the [dispute resolution] figures could have doubled.”
Ivan Engoru, a lecturer of law at Makerere University and practitioner in the court, says the fact that the court is based in Kampala does not help.
“Whoever wants to access labour justice has to travel to Kampala,” Engoru said. “Besides access to justice being costly, this has led to case backlog because all matters that were previously handled by the other High court circuits, Magistrate’s courts or the High court Civil division have to be registered in one court – Industrial court at Kampala.”
Indeed, people like Wakinina could have filed their matter in the High court at Mbale or Chief Magistrate’s court rather than travel all the way to Kampala. In 2014, when the Industrial court started operating, principal judge Yorokamu Bamwine gave an administrative order requiring it to take over all labour-related matters that were pending before the High court.
Defending his order, Bamwine told The Observer that during the years when the Industrial court was in abeyance, litigants were forced to file their matters in the High court.
“So, as soon as the court became operational, we had to offload most of those cases to where they are supposed to be. A person must justify why they must file their case in the High court Civil division or High court for that matter,” Bamwine said.
Consequently, 322 claims were transferred from the High court to the Industrial court. Official figures show that 450 claims have been registered since 2014 but only 79 have been disposed of.
Until now, the court is still resolving matters that were transferred from the High court. For instance, it recently disposed of the six cases including one that involved journalist Kalundi Serumaga’s claim for wrongful dismissal against Panos Eastern Africa Limited. The matter, first filed in the High court’s Civil division in 2008, was decided against the journalist in October 2016.
CONFLICTING DECISIONS
Bamwine’s decision, which added extra responsibility to a court still in its formative stages, has come under criticism from some quarters. Isaac Ssemakadde, a lawyer at Centre for Legal Aid, told us that the principal judge was arbitrary.
“With due respect, I have not seen any statutory instrument or practice direction that gave the principal judge those powers to transfer cases. Transfer of cases is a matter of law and some of the considerations taken into account are balance of convenience and cost implications. Were those considerations taken into account before transfer was done?” he asked.
However, Bamwine argues that his decision was administrative, and not by way of court order. The decision restricting ordinary courts from receiving labour-related matters has been a subject of discussion by the courts. In the case of Concern Worldwide v Mukasa Kugonza (H.C.S. No.1 of 2013), the High court at Soroti held that: “…the [section 93 of the Employment] Act removes jurisdiction from magistrate’s courts and confers jurisdiction in employment disputes on district labour officers and, the Industrial court on appeal.”
However, on September 20, 2016, Justice Stephen Mubiru of High court (Arua), in the matter of Ozuu Brothers Enterprises v Ayikoru Milka, held that the Employment Act did not confer exclusive jurisdiction to the labour officer or Industrial court and, as such, the law does not operate to oust the jurisdiction of subordinate courts over the same subject matter.
“Because of the provisions of section 208 of The Magistrate’s Courts Act, Cap 16, a general jurisdiction is conferred on Magistrate’s courts over all suits of a civil nature…The fact that no other court or tribunal has exclusive jurisdiction in a civil matter is sufficient to give a Magistrate’s court jurisdiction over that matter, subject to the restrictions relating to the nature, value, or the locality of the subject-matter, the residence of the defendant, and so forth, found in sections 207, 212 – 215 of the Magistrate’s Courts Act.”
Besides, the Supreme court in the case of Former Employees of G4S Security Services v G4S Security Services Ltd, S.C Civil Appeal No.18 of 2010, held that the High court should retain its unlimited original jurisdiction to hear employment matters as a court of first instance, despite the provisions of sections 93 (1) and 94 of the Employment Act 2006.
Lawyers like Engoru are confused about the conflicting decisions that have come from the courts and the principal judge.
“The civil division has refused to receive our matters yet the courts and law have said that the ordinary courts have jurisdictions to receive our matters,” Engoru said. “Now, who should we follow?”
skakaire@observer.ug
In Part II of these series, we hear from the court’s judges, workers’ unions and other technical experts on what can make the court more efficient.
This article is a product of The Watchdog, a centre for investigative journalism at The Observer newspaper. The research was funded by the African Centre for Media Excellence (ACME).