Community Advocacy on Environmental and Social Justice

Tuesday, 10 July 2012

Kenya Railways: A case study of human rights travesties



2012-06-28, Issue 591

http://pambazuka.org/en/category/features/83200

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Kenya Railways Corporation has over the past two decades gone from being an exemplar of service and care to leaving behind a greed-driven legacy of retrenchment, dislocation and abandonment of its employees.
As one of the key national institutions, the Kenya Railways Corporation, at its apex, was an employer to over 25000 Kenyans, deployed to serve the Nation across the Railway Network distancing 2400km from Mombasa to the Kisumu lake shore, with branch lines to Taveta – Tanzania, to Malaba – Uganda; and, within Kenya, to kitale, Nanyuki, Solai – Nyahururu and the Kajiado - Magadi lines. The complex network of feeder lines to the industrial areas of Nairobi and all the other major towns in Kenya also provided the connecting rail network for the invaluable range of transport services offered to the economies of the countries within Eastern Africa and the great lakes region.

Through this railways establishment Kenya became the leading provider of transport linkage to the countries depending on its services for the vital imports of goods, which moved the engines of industry and sustained their economies. Aside from this, it provided other important auxiliary services, which included the provision of engineering and technical services through the massive Central Workshops facilities - only rivaled by those in South Africa and Egypt.

The then central Railway Training School also provided vital training on the maintenance and repairs of railway equipment and infrastructures and, most importantly, played the critical role of preparing the next generation of railway men and women for the future administration and management of the Railways.

Sorry to say that all these programs, which were mooted and painstakingly mooted by our visionaries, following many years of planning and resources commitment, were in one fell swoop sacrificed at the altar of greed.

Today the Kenya Railways Corporation has become a shell of its former self and is rapidly fading into obscurity, for the reasons outlined in this paper. This forms the basis of our appeal to the concerned stakeholder for concerted action and restitution to those who were caught up or traumatized by the effects of the plunder to their lives and livelihoods, from those who, entrusted with a great and noble responsibility because of narrow interests, deliberately, caused the collapse of this giant Corporation, probably pushing us many years back in our quest to join the polity of advanced nations.

Conversely, the Railway Act (Cap 397) empowers the Corporation to fully exploit all the resources availed to it for the benefit of the employees and the country at a large.

As intended, the economic contribution to the exchequer and the general welfare of the people of Kenya would therefore be dependent on how well these resources were applied in meeting this and those other objectives which have been clearly specified in the Act.

LAND

To facilitate its operations, the Kenya Railways Corporation was endowed with large tracts of land - including estates property, major assets and infrastructures - spread along the length and breadth of Kenya. Over the last hundred years, most structures have been built parallel to the railway network, stretching over 2400 km.

However, over time and starting with the instigation of the Musuva Commission of Inquiry in 1989, this land was invaded and rapidly changed hands, without ascertaining the railways traffic requirements and the necessary expansion of the railways operational infrastructures.

In the more scandalous cases, operational land was recklessly excised and disposed of, without ascertaining KRC’s present and future expansionary needs. See Ndungu report.

For example, the allocation of land within the boundaries of the locomotive turning triangles (termed Diamonds) in the major stations system, greatly obscured traffic operations and endangered safety. This encroachment gradually crept into the Railway estates housing and staff were at times required to cede their housing accommodation overnight - often without notice - to pave way for the so called property owners or developers of the new acquisitions.

This encroachment into railway land worsened with the passage of time. The plunder was cloaked with impunity, with trespass or open violation of the employees’ rights that was justified by the political correctness of the perpetrators.

With the subsequent retrenchment of employees, the ensuing scramble for the displaced railway assets escalated. The workers’ rights and interests were completely subjugated in the process - even in the instances where GOK had issued clear instruction guidelines that the workers are given first priority and fair treatment in benefiting from the divestment program that had commenced in the government parastatals. Every effort by GOK to empower the employees under the Economic Recovery Strategy (ERS) for Employment and Wealth creation, launched in 2003, was jettisoned.

Housing assets were initially identified to be sold to staff under the GOK initiative, but the target employees were hounded out of those houses or hastily retrenched to deny them the opportunity to benefit, as their civil service colleagues had done. The staff, rightly resisting vacation of quarters for nonpayment of their outstanding benefits, were viciously evicted; regardless of the violations of theirrights, KRC influenced the disposal of the cases in court on technical grounds, leaving many employees scarred and bearing irreparable damage to their lives.

This occupation and resultant effect of the hostile takeover process was entirely dehumanizing to the employees. It characterized the beginning of the severe disintegration of the once robust railways system. The attrition witnessed presently, which continues to affect and hound the lives of railway men and women, is the consequence of the scramble for the institutional assets and lands identified and set aside by the taxpayers for the welfare of the retired staff, following concession of the corporation.

COMMISSION

We can say that the genesis of the corporation’s problems accelerated following implementation of the Musuva Commission of enquiry report recommendations. It opened the system to opportunism. The deliberate variation of the commercial and administrative procedures established to regulate the complex railway systems were dismantled without thought.
KRC became a laboratory for experimentation, and in the course of time the Corporation became a haven for enrichment by all shades of personalities, brandishing name tags from the political establishment and seeking to exploit the railway resources. The scramble and plunder of railway land and assets went on to the extent of completely subjugating the welfare and legal rights of the employees. Where their labor rights were concerned, the Union was compromised to such a degree that the employees had no alternative but to hold the short end of the stick in any negotiated terms.

In the subsequent retrenchment onslaught, the employees’ cries for fairness were completely ignored and, for many, their lives began to disintegrate before their very own eyes. Families broke up and parents divorced as wives and children refused to accompany their spouses and parents to their rural homes. Evictions like the ones of Muthurwa and Makongeni Estates spilt into the public domain and the courts, where the right to housing and illegal evictions is now the subject of contention.

The barriers that had been placed in their paths in their quest for justice discouraged many, and having no other recourse, they let destiny to take its course. As a result of the inhuman treatment, many employees who were sent home without the decent safety net promised by the World Bank, in compensation for the lost employment years, silently perished from broken spirits and destitution.

BENEFITS

The Railways retrenchment was effected in phases. The first phase commenced in 1994 when the World Bank recommended that KRC could initially sell its surplus assets to raise the funds to cover the retrenchment costs. The staff then retrenched were promised increments later rescinded, forcing many to retire in penury. Those who tried to seek redress faced a biased union, an impervious court system and a hostile political environment. Their plight was drowned in the corridors of corruption, and many left for their rural homes with nothing to show for their years of toil.

The second phase commenced in 1998. With the learning curve of shortchanging the employees perfected and securely in place, this group’s terms of retirement were equally varied, leading many to retire with peanuts. Litigation did not succeed; for example, it took over 14 good years to have their exempted tax deductions refunded. In all these instances, the union was at the centre of the controversy, with the argument that once the lowly terms negotiated was registered, the courts, which had been appealed to by the aggrieved employees, could do nothing about it. In other instances, the employees whose benefits were exempted from taxation were paid last year, and, to date, others are still chasing their payments,. Others despaired and died while still awaiting payment, leaving their dependents to reckon with the administration. Those who survived the ordeal are now awaiting the outcome of the Inter- ministerial disputes resolution committee that had to step in to address the numerous cases that had been brought to it by the aggrieved employees.

Completed cases of refunds were sat upon or with held by KRC on flimsy reasons, such as that the files could not be traced, or citing lack of funds; yet GOK had set aside and granted to the corporation millions of shillings to clear outstanding debts. The issue of underpaid benefits payment has been under correspondence and has severally been referred to the World Bank by the aggrieved employees for necessary clarification. The matter is still hanging to date and is shrouded in secrecy, in view of the serious financial repercussions where funds are found to have been misappropriated.

The third phase commenced in year 2002. The circular letter stipulating the initial severance benefits promised to staff of three months pay for every completed year of service was as in the previous cases rescinded and the staff paid instead one month’s pay for every year completed. Their protest led to naught, and the most affected group, at the time, was the employees engaged on renewable contract terms; they had their contracts automatically renewed at the end of every second year period. Nonetheless, these staff merited payment, given the fact that the service rendered to the corporation was continuous, making them eligible for the full payment of benefits.

The most affected in this category were the women staff in the secretarial cadre, equally eligible for admission to permanent and pensionable status prior to retrenchment. They were retrenched on the remainder of the 2 years running contract. Those who appealed and made vigorous follow ups with GOK were paid their lump sums and rightly admitted to pensionable status, on account of the many years of loyal service rendered. The victims of ignorance and misinformation were left out and retrenched on the balance of their running contracts of the expired contract terms at the time of retrenchment. The affected staff left with empty handbags to face an uncertain future and to deal with with economic hardships.
The fourth phase commenced in year 2006, following the decision to concede KRC. Sheltam, the firm that won the railways bid, later abandoned the concession in controversial circumstances, causing unquantified financial losses to the Kenyan taxpayers in billions of shillings.
This phase was fraught with irregular financial dealing and retrenchment terms which similarly to the previous ones, severely short-changed the staff. The payment process was riddled with controversies, with batches of the staff earmarked for retrenchment paid under terms which did not clearly reflect the agreement GOK had entered into with the World Bank at the commencement of the retrenchment program. For example, the administration created a new category of employees called permanent contract workers, whose description appeared nowhere in the corporation’s personnel regulations. The funds requisitioned on their behalf are yet to be fully accounted for, though many were sent home with almost nothing to their names.

The PKF auditors appointed by the World Bank to oversee the payment process transparently, were themselves embroiled in the misdemeanors and abandoned the program, left mysteriously without settling numerous cases of underpayments and over payments to staff, six years down the line. They have yet to account to GOK and the World Bank the millions of shillings alleged to have been misappropriated during the process of effecting payments to the staff earmarked for retrenchment.

The information on the actual retrenchment benefits was variously stifled or varied, in a manner which left many retrenchees confused as to the applicable terms.
Again, the role of the Union in undermining the rights of the employees, in collaboration with the railways establishment, came to the fore.

IMPACT

On the whole, this process fundamentally affected the lives of many employees. With the mounting pressure to take over the operations and railway assets, the employees’ human rights were violated in many respects. With regards to housing, many employees eligible for free accommodation until their benefits were settled in full and in accordance with established railways regulations and the existing rules of natural justice, found themselves viciously evicted and left to seek abode in the surrounding slums. The plight of their families remains the discussion for another day, to be best told by them.

We believe that this truth will be known, with your assistance, as we begin to make the rounds in the country to collect and document these stories for posterity.

Even where the parent Ministry (transport) directed that that staff who had been unjustly evicted be reinstated to their quarters until their dues were paid in full, KRC was recalcitrant; they ignored such instructions and countered with their own arrangements, which were entirely inconvenient to the interests and welfare of the affected staff. In such instances, KRC advised the aggrieved staff to proceed to their home stations or to source accommodation in the vandalized railway quarters, away from their home stations, where found available. Those who took this option and occupied such vacant wayside quarters were later, treacherously, told to pay rent or face evictions.

In spite of the Railways Union’s clarification to the Transport Ministry on the railway’s housing policy, and the ministerial directive to KRC for reinstatement of the staff back to their houses, the staff affected, who had completed the requisite options forms introduced by KRC to implement this ministerial directive, never received any feedback, leaving the matter to fizzle out with the passage of time. Today, a majority of these staff now live in embarrassing destitution, leaving heartbreak, sorrow and desolation, thanks to the travesties of new managers and changed and untested policies imposed on an institution which once ran like clockwork and took very good care of its employees.

As such, it may be observed that over the years many KRC employees became victims of an institution run down as a consequence of conflicting interests. Their condition has worsened with every subsequent separation of staff from the institution. It was therefore necessary to document these happenings, so that justice can be served for those whose rights and lives have been turned upside down by the establishment; and to seek restitution for those who have suffered loss and to comfort the bereaved in the cases where spouses surrendered and sought solace across the Rubicon.

Across the country, there are over 9465 retired employees who now depend on the Kenya Railways Staff Retirement Benefits Scheme for their livelihood. They are required to receive monthly pensions until the end of their lives. However, this prospect is now threatened and constrained by political machinations targeting the properties which were set aside by GOK to provide for the pension needs of the retired employees.

Equally, the non-permanent staff, numbering over 3000, presently are pursuing payment of their retrenchment benefits with the corporation. Staff who stuff who suffered evictions and were residents in the sprawling Makongeni and Muthurwa railway housing estates are keeping their fingers crossed and hoping for redress through the courts.

However, in all these instances procrastination is noted, and whether this is deliberate or otherwise depends on whether those who have been charged with the responsibility to act are enjoying largesse by way of railway land. We have always suspected that to be the case, as the continuing suffering of KRC employees in the midst of all the atrocities committed to them clearly defies logic.

In this respect we would like to request the readers of this article to come on board and assist in achieving the following objectives:

i) Facilitate funding for mobilization of the aggrieved staff, system-wide; to collate and document their grievances and channel them to the right agencies for redress.

ii) To counsel and provide hope to the widows and dependents whose breadwinners have departed prematurely as a consequence of the maltreatment by the railway establishment

iii) To establish a case for compensation and payment of claims owing to the staff who were prematurely retrenched, which have not been fully settled by the employer.

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