A case contesting the National Social Security Fund (NSSF) Act 2013 has been referred to the Court of Appeal by the Supreme Court, citing an incorrect assumption of the jurisdiction of the Employment and Labour Relations Court.
The appeal court erred in determining that the Labour Court lacked jurisdiction to hear the case contesting the increase in NSSF contributions from Ksh. 200 to Ksh. 2,000, according to the ruling of the seven-judge bench Chief Justice Martha Koome chaired.
The Supreme Court overturned the appellate court's interpretation of the Employment and Labor Relations Court's jurisdiction in the case brought forth by the Kenya Tea Growers Association, Agricultural Employers Association, and County Pensioners Association. It also clarified that the Labour Court has explicit jurisdiction to decide whether a statute is constitutional.
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The appellate court ruled that the matter was clearly within the High Court's jurisdiction under Article 165(3) of the Constitution and that, in any case, the dispute was not the result of an employment-employee relationship as defined by Section 12 of the Employment and Labour Relations Court Act.
During the petition hearing, the appellants contended that their members had more advantageous long-term pension and social security plans with their employers than those suggested by the NSSF Act 2013.
In addition, the petitioners claimed they would lose their years of contributions to the current pension plans due to overburden.
In addition, they contested the Act's constitutionality, pointing to reasons such as inadequate public involvement, the requirement that employees register with the fund—as opposed to the prior NSSF Act, which exempted members of pre-existing pension schemes from registration—and the Senate's lack of involvement in the enactment process, even though county governments were required to make contributions to the fund.
They also protested about giving the NSSF Board of Trustees regulatory authority in place of the Retirement Benefits Authority, which would have increased social security benefits only for those in employment and discriminated against the unemployed; additionally, they objected to the Cabinet Secretary for Labour and Social Security having the authority to decide the board's compensation, which is usually the responsibility of the Salaries and Remuneration Commission (SRC);
The petitioners also mentioned giving the NSSF Board a monopoly on providing social security and pension services.
Justices Hannah Okwengu, Mohamed Warsame, and John Mativo of the Court of Appeal determined that the NSSF Act 2013 was lawful and that nothing would prevent the government from putting its amendments into effect.
However, in September of last year, Labour Court judges Nduma Nderi, Hellen Wasilwa, and Monica Mbaru declared the Act illegal and unconstitutional, cutting short the government's plan.
