Workers in the technology sector have moved to court, seeking to quash a proposed law that grants immunity to global tech firms against prosecution for employment and human rights violations in Kenya.
They claimed the Business Laws (Amendment) Bill 2024 was unconstitutionally passed by the Senate.
The Bill, which provides tech companies with immunity from being sued in Kenya for labour and human rights violations, is awaiting presentation to the National Assembly, when MPs resume from recess later this month.
The tech workers say that while the Senate asked the public to submit memoranda on the Bill, no real effort was made to consider the memoranda.
They said a public participation report was not presented to the Senate, and the tech workers were, therefore, denied an opportunity to participate in the legislative process.
“An order of certiorari to bring to this court and quash the proceedings of the Senate and the decision of the Senate to pass the Business Laws (Amendment) Bill (Senate Bill No. 51 of 2024) without amendment on grounds that the process of passing the Bill was procedurally and substantively flawed and in violation of the Constitution,” reads the petition.
The 36 petitioners argue that the Bill was introduced to the Senate by Majority leader Aaron Cheruiyot in November 2024, shortly after the Court of Appeal dismissed a dispute involving social media giant, Meta.
Petitioners said the Bill, as it is, carries with it the procedural vice of its unconstitutional passage.
And if the National Assembly were to receive and process it, it would, in effect, be ratifying and giving constitutional legitimacy to the Senate’s unconstitutional conduct.
“The harm is irremediable. The window for public participation at the Senate stage is closed. No further action by the National Assembly can restore the lost opportunity. Allowing the National Assembly to consider a Bill that was processed without public participation at the Senate would be a gross injustice and an affront to the constitutional right to public participation,” the petitioners added.
Tech workers said of interest to them is Clause 10 of the Bill, which provides that in cases where tech workers have been engaged through Business Process Outsourcing (BPO) companies acting as agents for tech companies, it is the BPO that would be liable for any claim raised by tech workers regardless of whether another party (the tech company) was responsible for providing the tools of trade and was the sole beneficiary of the tech worker’s labour.
The impact of the provision, argued tech workers, is to cushion tech companies from being held accountable for violations of Kenyan laws.
They said they sought an audience with the Standing Committee when the public was asked to submit memoranda, to discuss how the Bill would impact them, but the committee allegedly did not respond to the request for the meeting.
They added that Mr Cheruiyot, the mover of the Bill, is on record publicly stating that tech companies had pushed for a law to shield them from liability, pushing all liability for unlawful action on BPOs.
The petitioners added that Mr Cheruiyot said that it was the only way to keep Kenya competitive in the global market for tech jobs and that tech companies needed the changes made to the law if they were to continue investing in the country and creating more jobs.
The petitioners maintained that they do not seek to usurp the role of the legislature but rather to ensure its actions are confined within the bounds of the constitution, particularly regarding the right to public participation.
“While the Business Laws (Amendment) Bill has yet to be considered by the National Assembly and therefore yet to become law, the harm addressed by this Petition has materialized, making this Petition one that is ripe for consideration by the court,” stated the petition.
The petitioners pointed out that the extensive use of these technology services in Kenya and in Africa has created a huge appetite for tech workers to power their operations.
Most tech companies are foreign companies that do not have registered or set up offices in Kenya, as the borderless nature of the internet makes it possible to draw revenue from any country in the world without a physical presence in that country.
Given their absence from Kenya, tech companies engage tech workers from Kenya through agents, who may take the form of BPOs or online platforms where workers can sign up and be assigned work, which is monitored through extensive surveillance features.
