Atwoli vs Fazul: The flex of muscles and security guards' yearn for decent pay

PSRA Director-General Fazul Mohamed said that the workers’ umbrella union – COTU - had failed on its mandate to cater for the interests of its members and further, had persisted in disregarding, declining and neglecting to advocate for the rights of their members. Fazul was categorical that “as outlined in COTU's core mandate, its core mission is to be the voice of workers and actively fight for their social and economic welfare.

However, COTU had had failed in their core mandate." Further, he cautioned all private security companies to “desist from remitting the said fees to COTU, pending the conclusion of the investigation. Failure to, he said “they will be subjected to a statutory review of its registration and licensing status in accordance with Section 32 of the PSRA Act." 

Barely a day after, the trade union came out with both barrels blazing. COTU Secretary-General Francis Atwoli “condemned” the directive from Fazul as ill-advised and unfortunate. Atwoli said that the union dues COTU receives from private security workers, is through their unions (The Protective and Safety Association of Kenya (PROSAK) and the Protective Security Industry Association (PSIA)) as affiliate members of COTU which is an umbrella union based on a Gazette Notice by the Ministry of Labor dated 2 September 2016. A defiant Atwoli reiterated that COTU, as an umbrella workers’ union, is free and independent, neither regulated by PSRA nor any other government body. 

Meanwhile, there is a growing list of orders issued by the PSRA boss to the private security sector since the late last year. He began by ordering the sector players to not only register all their employees into the PSRA database but also ensure they raise the minimum monthly salary of all employees within the sector to at least thirty thousand Kenya shillings. 

In March, the PSRA held a mass open-air registration exercise of security guards at Uhuru Park, Nairobi where the issuance of Guard Force Numbers (GFNs) took place. The PSRA said the exercise on that day was not definitive and they promised to roll out country-wide registration of all other Kenyans working within the sector. 

Fazul followed fast with another order on April 4, 2024 to all private security companies to submit the credentials of their security guards within 48 hours. Demanded from the firms were details of national IDs, academic certificates and other personal documents. He faulted some of the private security firms for illegally withholding the same documents which he said further demeans the rights of Private Security Officers. 

He said the Authority is committed to ensuring that the rights of private security officers are upheld and that any form of exploitation is eradicated. Most companies complied but when nine companies failed to meet the deadline, their operations were halted when the PSRA cancelled their licenses through a legal notice. All other firms were issued with a five-years’ operating license after vetting them.

Inevitably this sparked a row with the affected companies going to court together with the trade unions which represent the private security sector security workers. On February 15, they began the legal process to stop the PSRA's minimum wage bill directive which they said posed a significant threat to the survival of many private security companies in the country. 

They argued that the Ministry of Labor, and not the PSRA, is responsible for adjusting minimum wages as stipulated under the Employment Act No 11 of 2007. Then to the surprise of many observers, Cabinet Secretary for Labor, Florence Bore also disowned the PSRA's directive that requires private security firms to pay their guards a minimum salary of Ksh.30,000. 

The Ministry of Labor last amended wage adjustments through Gazette Notice No 125 of 2022. The petitioners claimed that PSRA's cancellation of licenses for some private security firms did not follow proper procedures as outlined in the PSRA Act Articles 32 and 43, which require notice and appeal before taking such a drastic measure. They accused the PSRA of disregarding the law and "demonstrating impunity". 

Further to the foregoing, the private security firms said they support and also seek higher salaries for the security guards but averred that current economic circumstances make it neither practical nor immediately possible. 

To meet this goal, they say, would require broad collaboration and input from all stakeholders to strike middle ground. They were of the opinion that, "only a few companies would afford to pay the thirty thousand salary per guard based on the financial muscle of their clients who are the determinants of the pay the guards receive. 

Failure to approach the pay issue soberly, they said, could force many firms to reduce their operations, lay off staff, and, in some cases, close down due to the weak economy and increased taxes. The private security firms warned that if the PSRA went ahead with this demand, about 700, 000 jobs would be at risk.

The private security firm’s union also went ahead to petition the National Assembly to look into the arising issue of higher pay on February 20 and for the reinstatement of the licenses of 9 security firms cancelled by PSRA. Officials of the PSIA led by Chairman Cosmas Mutava claimed that PSRA's cancellation of licenses was done without following the proper procedures outlined in the PSRA Act when they appeared before the Departmental Committee on Administration and Internal Security chaired by Narok West MP Tongoyo Gabriel. The PSIA accused PSRA of disregarding the law and "demonstrating impunity". 

However, in a strange twist of events, the PSIA, withdrew the court case against the PSRA, setting the stage for the implementation of the various directives issued by the authority.

For close observers, this came as no surprise. The combative PSRA boss Fazul is no stranger to controversy. Those who remember his time at the NGO Board, as the NGO coordination board boss, might recall the controversial dictums with which he was driving the sector before he fell off besieged by scandal. 

The then Devolution CS Mwangi Kiunjuri sent him on compulsory leave after dissolving the entire board. The Ombudsman declared him unfit to hold public office and requested the DCI to institute investigations against him for presenting forged documents to secure the board position. 

The Commission on Administrative Justice, in a thirty-eight-page report accused Fazul of abuse of power and misconduct and further established that he was irregularly appointed."

However, Fazul moved to court seeking to suspend implementation of the investigative report and in 2017 lost the bid to block it from implementation and his application was duly dismissed. Justice Odunga, sitting in Nairobi, declined to issue temporary orders barring the implementation of the report saying “it would be a violation of rules of natural justice.”

The PSRA has been mandated and set up to regulate and work in the interest of the private sector security in Kenya, but the speed with which it is acting thus far and its disregard of stakeholders input in the sector is a wake-up call for it to change tact, focus on collaboration and strive for consensus to achieve its aims. But thus far, it seems unlikely as the regulator is moving all out to issue and demand the implementation of edict after edict. 

Every Kenyan wishes the very best for the courageous and long suffering workers within the private security sector and thus a collective framework that is sensitive to all stakeholders is the route to take. The PSRA might have avoided until now the long spells it might have spent the courts of law over its unilateral actions but inevitably, many legal minds are of the opinion that it is overstepping its mandate in trying to exert its authority and hold sway over the entire sector. 

To the extent that even the ministry of labor is reading from a different script from the PSRA on matters setting salaries for the sector as each now claims primacy over the matter. A slippery and long winding ground might be lying ahead for PSRA in fulfilling its mandate.