A Comparative Study of the Tea Sector in Kenya is a Case Study of Large-Scale Tea Estates Undertaken in 2006 by the Kenya Human Rights Commission (KHRC) and released in 2008.
Owing to recent developments on a section of this Report concerning the Sexual Harassment of Women Workers, AwaaZ is presenting a summary of the KHRC’s findings and is grateful to it for making a copy of the Report available to us.
On Sunday 26 March, 2023 the Nation Newspaper published the following news item:
ACTIVIST IN TEA FIRMS SEXUAL ABUSE CASE FOUND DEAD AT HOME
A key player in a case by current and former workers who were sexually exploited at two multinational tea companies in the South Rift region has died.
Dr Godfrey Onyango, chairman of the Justice and Environment Foundation, was found dead at his home in Lanet, Nakuru county on Friday evening, according to family members.
He was involved in the petition by current and former workers of Ekaterra (formerly Unilever) and James Finlays – operating in Bomet and Kericho counties – for the two companies to admit liability in exposing them to sexual exploitation by managers and supervisors.
For Reference: THE KHRC REPORT – A Comparative Study of the Tea Sector in Kenya
Compiled by Zarina Patel, Managing Editor, Awaaz.
This research and investigation by the KHRC was done in 2006-2008 in preparation for a strategy meeting on Corporate Social Responsibility (CSR) in the global tea supply chain, that the KHRC had been invited to participate in. The main aim of that meeting was to provide a platform for transparent exchange of information regarding developments in the tea sector with special emphasis on the behaviour of the private sector and the impact of CSR initiatives.
It had been noted that there was a global slump in the price of tea; Unilever for instance has reported that the real price of tea has fallen by more than 15 per cent since 1980 while the supply of green leaf has steadily increased on the global front. The decrease in prices had negatively affected the working conditions and livelihoods of workers and small-scale farmers. However despite this slump, it has been noted that market players such as Unilever (Lipton’s Tea) and Tata Tea have continued to make large profits from this sector.
To this end, the Centre for Research on Multinationals (SOMO) approached the KHRC to partner with Christian Development Partners Agency (CDPA) to carry out research on the tea sector in Kenya. The rationale behind this research was that comprehensive data on ecological, social and economic conditions in the tea supply chain was generally lacking.
Objectives
This research study is based on two Multinational Corporations (MNCs) – Unilever Tea and James Finlays – and their operations in Kericho. Generally the study aimed to assess the working conditions and terms of service for workers in the low cadre of employment at these tea estates. The study also aimed to investigate the CSR initiatives of the 2 MNCs. The workers reported cases of discrimination where potential female workers had to undergo a medical examination and if they were pregnant they would be certified as unfit and would not be employed. The ‘permanent’ casual status of employees, child labour, the high targets that were set by the management of the estates and the use of machines for plucking the tea leaves were some of the complaints of the workers.
The rationale therefore behind this research was that comprehensive data on ecological, social and economic conditions in the tea supply chain was generally lacking.
1. Unilever Tea Kenya Ltd.
Unilever Tea Kenya was from 1922 to 2004, known as Brooke Bond Kenya. Unilever Tea is a public listed company having been listed in the Nairobi Stock Exchange (NSE) in 1972. The company’s financial review from 2002 to 2006 shows that its profits have been falling from Kshs 124 million in 2002 to Kshs 62 million in 2003, rising in 2004 to Kshs 360 million and falling in 2006 to Kshs 52 million.
2. James Finlay (Kenya) Limited
James Finlay started planting tea in Kericho in 1925. James Finlay is wholly owned by John Swire and Sons Limited UK. The company bo[a]sts of having 5,554 hectares under the cultivation of tea and its annual exports of tea from its 15 estates is worth Kshs 4 billion (approximately USD 590 million). The company employs 14,710 employees and have 55,000 dependants. The total land area under James Finlay’s tea is 5,908 hectares.
Sexual Harassment
Sexual harassment was one of the violations that was predominately highlighted by all the workers interviewed from both companies. A former worker from James Finlay’s noted that a female worker can be told by the Nyapara (the supervisors are commonly referred to using this [very colonial] term) to remain behind in the just plucked section, if the woman refuses to obey the directive, the Nyapara looks for any excuse to get the woman fired.
The worker noted that women pluckers who refused the sexual advances of their supervisors were targeted and would at the very least receive verbal abuse. Another worker interviewed from Unilever noted that, ‘sexual harassment is a serious problem because all the supervisors are men, some of them want you to go beyond your work obligations and satisfy their sexual needs and if you don’t do that, they fake other charges on you or give you too much work or allocate you lonely or dangerous plucking zones.’ A peer educator from Unilever conceded to the prevalence of sexual harassment and its impunity. The worker noted that cases of sexual harassment were ‘solved’ by bribing the supervisor to take up the issue. If the perpetrator was from the same ethnic group as the assistant manager the complaint would not be taken seriously. The worker attributed the rampant cases of sexual harassment in the estates to the fact that a majority of the supervisors at the estates did not live there with their wives.
The prevalence of sexual harassment in the tea estates of James Finlay’s and Unilever was denied by both companies’ managements. The James Finlays management conceded that sexual harassment was a major issue in the past however it had been dealt with.
The perception from Unilever employees was that ethnicity played a critical role in both employment and in promotions. The Unilever management denied these perceptions and noted that promotions at Unilever were conducted on a meritorious basis. It should be noted that employment was used as a tool to compensate the indigenous people of Kericho who had lost their land to the MNCs. A worker lamented that, “nowadays they (the supervisors) are brought by ‘Godfathers’. Many of the supervisors lack experience and interpersonal skills. Most of them are Kalenjin men because the top management is also Kalenjin that is the reality around here!”
UNIONISATION
Permanent workers in the agricultural sector are represented by the Kenya Plantation and Agricultural Workers Unions (KPAWU). All permanent workers interviewed for this research were members of the trade union. One of them who was interviewed for this report, lamented that the major issues handled by the union, were dismissals. No cases of sexual harassment had been reported to the union offices. The union official also complained that the large tea estates do not issue their workers with letters of appointment. A union official noted that their members from both companies had been gradually decreasing over the years; the official noted that the companies were not employing permanent workers and casual workers were unable to join the union. From the analysis one of the major complaints from the workers was the inefficiency of the union.
Ethical Tea Partnership (ETP)
ETP is a non-commercial alliance of the major tea packing companies working together towards the promotion of social responsibility in the global tea sector so as to ensure the ethical sourcing of tea. ETP defines ethical trade as, ‘a shared responsibility to ensure that the social and ethical conditions involved in growing the tea that its members buy meets, at a minimum, local laws, trade union agreements and some international standards, and to encourage improvements where needed.’
ETP is active in twelve regions – Argentina, Kenya, Malawi, Assam (Northern India), Kerala (Southern India), Tamil Nadu (Southern India), Sri Lanka, Brazil, China, Indonesia, Tanzania and Zimbabwe. ETP carries out independent monitoring of six areas – employment (including minimum age and wage levels), education, maternity, health and safety, housing and some areas of basic rights. Tea producers who meet these requirements are awarded a graded certification.
ETP utilises the Ethical Trading Initiative (ETI) Base Code, which contains nine clauses which reflect the most relevant international standards with respect to labour practices. The ninth clause is tabled below:
| 9. No Harsh or Inhumane Treatment is Allowed | • Physical abuse or discipline, the threat of physical abuse, sexual or other harassment and verbal abuse or other forms of intimidation shall be prohibited. |
DISCRIMINATION AGAINST WOMEN
Discrimination against women in the tea estates takes the form of sexual harassment and ‘forced’ pregnancy tests. Sexual harassment violates the equal protection provisions in the ICCPR, the ICESCR, the CEDAW and ILO’s Discrimination (Employment and Occupation) Convention. The Committee on the Elimination of Discrimination against Women in 1992 acknowledged that gender specific violence such as sexual harassment in the workplace was a form of discrimination that, ‘seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men.’ In recognition of the widespread and grotesque nature of this violation, the Beijing Platform for Action adopted in 1995 at the Fourth World Conference on Women called on governments and employers to, ‘enact and enforce laws and develop workplace policies against gender discrimination in the labour market, especially………..regarding discriminatory working conditions and sexual harassment (and to develop mechanisms) for the regular review and monitoring of such laws.’
Kenya as noted earlier has ratified the CEDAW which clearly recognises that discrimination against women violates the principles of equality of rights and respect for human dignity. State parties to this Convention are mandated to take effective steps to ensure the elimination of discrimination against women. The Convention lays down measures that state parties have to comply with to meet this objective. Some of the measures include, to adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women and to take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise. Tandem to this the ILO Declaration on Fundamental Principles and Rights at Work outlines four fundamental rights at work – freedom of association and recognition of the right to collective bargaining, the elimination of all forms of forced and compulsory labour, the abolition of child labour and the elimination of discrimination in respect of employment and occupation. The Declaration mandates all member states (irrespective of whether they have ratified the Conventions related to these rights) to respect, to promote and realise the four fundamental rights.
The Kenyan Constitution guarantees freedom from discrimination however none of the repealed labour laws recognised sexual harassment as a violation. Sexual harassment is criminalised in the Sexual Offences Act (Cap 3 of 2006) Section 23 (1). The Act stipulates, ‘any person, who being in a position of authority, or holding a public office, who persistently makes any sexual advances or requests which he or she knows, or has reasonable grounds to know, are unwelcome, is guilty of the offence of sexual harassment and shall be liable to imprisonment for a term of not less than three years or to a fine of not less than one hundred shillings or both.’ This is a relatively new Act and many of the workers were not aware of the provisions contained therein which guarantee their rights against sexual harassment.
FREEDOM OF ASSOCIATION AND THE EFFECTIVE RECOGNITION OF THE RIGHT TO COLLECTIVE BARGAINING
This is one of the fundamental rights spelt out in the UDHR, ICESCR and the ICCPR. In recognition of this right, the ILO in its Declaration on Fundamental Rights and Principles at Work obligates members to respect and promote freedom of association. As noted above Kenyan workers are guaranteed the freedom of association and the government recognises the right to effective collective bargaining, this provision is guaranteed under the repealed Trade Unions Act. From the analysis carried out, it is imperative to note that the effective representation of 31 Laws of Kenya, Sexual Offences Act www.kenyalaw.org/kenyalaw/klr_app/
CONCLUSIONS AND RECOMMENDATIONS
Of notable concern was the issue of sexual harassment. From the analysis presented in this research report sexual harassment is prevalent in the large-scale tea estates. Due to the nature of this crime, women victims suffer in silence due to the enormous costs associated with seeking redress and the stigma associated with ‘coming out’ and reporting this crime. Sexual harassment causes incalculable economic, psychological and physical harm to its victims and it serves to entrench patriarchal systems that inhibit the empowerment of women. It should be noted that the formal mechanisms to report cases of sexual harassment are either absent in the case of James Finlays or under utilised in the case of Unilever. It is our recommendation to the management of both companies to take the issue of sexual harassment seriously and develop suitable and impartial avenues in which such cases can be reported and seriously acted upon by the management. The management of James Finlays needs to speed up the development of their Gender Policy and ensure its immediate implementation.
Sexual harassment of women was identified by all workers interviewed as a major violation that women experience. Women workers who refused the sexual advances of the male supervisors were usually targeted for dismissals and retributions in the form of allocation of excess work. Workers – male and female – revealed
that potential women employees were subjected to pregnancy tests, women who were exempted from these tests were those who were holders of family planning cards. Kenya as noted earlier
has ratified the CEDAW which clearly recognises that discrimination against women violates the principles of equality of rights and respect for human dignity. State parties to this Convention are mandated to take effective steps to ensure the elimination of discrimination against women. The Convention lays down measures that state parties have to comply with to meet this objective. Some of the measures include, to adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women and to take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise. Tandem to this the ILO Declaration on Fundamental Principles and Rights at Work outlines four fundamental rights at work – freedom of association and recognition of the right to collective bargaining, the elimination of all forms of forced and compulsory labour, the abolition of child labour and the elimination of discrimination in respect of employment and occupation. The Declaration mandates all member states (irrespective of whether they have ratified the Conventions related to these rights) to respect, to promote and realise the four fundamental rights.
The Kenyan Constitution guarantees freedom from discrimination however none of the repealed labour laws recognised sexual harassment as a violation. Sexual harassment is criminalised in the Sexual Offences Act (Cap 3 of 2006) Section 23 (1). The Act stipulates, ‘any person, who being in a position of authority, or holding a public office, who persistently makes any sexual advances or requests which he or she knows, or has reasonable grounds to know, are unwelcome, is guilty if the offence of sexual harassment and shall be liable to imprisonment for a term of not less than three years or to a fine of not less than one hundred shillings or both’. This is a relatively new Act and many of the workers were not aware of the provisions contained therein which guarantee their rights against sexual harassment.
Freedom of association and the effective recognition of the right to collective bargaining
This is one of the fundamental rights spelt out in the UDHR, ICESCR and the ICCPR. In recognition of this right, the ILO in its Declaration on Fundamental Rights and Principles at Work obligates members to respect and promote freedom of association. As noted above Kenyan workers are guaranteed the freedom of association and the government recognises the right to effective collective bargaining, this provision is guaranteed under the repealed Trade Unions Act. From the analysis carried out, it is imperative to note that the effective representation of workers has been violated by the union. As noted earlier, the union neither has a budget or a work plan, without any of these basics, the trade union was unable to effectively represent workers. The inefficiency surrounding the union has created apathy among the workers who seem more interested in salary increments during the collective bargaining process moreover the workers are not consulted during the collective bargaining process.
