A safe and healthy working environment for workers is a globally recognized and guaranteed right! Uganda recognized and accepted this right through the ratification of the Convention on Economic, Social and Cultural Rights in 1987 which states under Article 7 (b) “that the state parties to the present convention recognize the right of everyone to the enjoyment of just and favorable conditions of work which ensure in particular safe and healthy working conditions”.
A progressive country it is! Uganda reinforced her recognition of this right at the Continental level through the ratification of the African Charter on Human and People’s Rights which provides under Article 15 that every individual shall have the right to work under equitable and satisfactory conditions. Subsequently, the right has since been constitutionally guaranteed under the 1995 Constitution of Uganda. The 1995 Constitution of the Republic of Uganda in different provisions provides for this right. Among others, these provisions include; Objective XIV: State’s duty to fulfill the fundamental right of all Ugandans to social justice and economic development; Article 39 of the Constitution provides that every Ugandan has a right to a clean and healthy environment; Article 40 provides for economic rights where Clause 1(a) provides that Parliament shall enact laws to provide for the right of persons to work under satisfactory, safe and healthy conditions.
In 2006, the parliament of Uganda in the exercise of the powers under Article 40 of the Constitution of Uganda enacted the Occupational Safety and Health Act 2006 which is the law to harmonize, consolidate and update the laws relating to occupational safety and health and to provide for connected matters. Importantly, the Act provides for the enforcement mechanisms through administration of the Act, the rights and duties of both employers and employees, and duties owed to third parties in relation to employers.
Despite the enactment of the Occupational Safety and Health Act of 2006, 15 years ago, the right to a safe and healthy working environment has continued to be violated by employers due to limited government efforts to effectively implement the provisions of the Act. This leaves the employees/workers prone to occupational injuries, work-related diseases, and sometimes deaths with some workers compensated while others haven’t. According to Uganda National Governance Baseline Survey (UNGBS) 2014 Report; Uganda Bureau of Statistics: Page 36. 54% of workers in Uganda work in harmful environments while only 20% are given protective gear. The right has been highly neglected by the duty bearers that is the government and the employers.
On enforcement of the provisions of the Occupational Safety and Health Act 2006. The 2016 Report by the Auditor General on the Enforcement of Occupational Safety and Health Activities at Workplaces by the Department of Occupational Safety and Health under the Ministry Of Gender Labor and Social Development provides that the Ministry of Gender, Labor and Social Development is the line Ministry responsible for the enforcement of the Occupational Safety and Health Act 2006 and making sure that the right is being observed by employers. Under the Ministry, the Department of Occupational Safety and Health (DOSH) is the department responsible for the enforcement through inspections, registration, and licensing of workplaces. The Department is headed by the Commissioner in charge of Occupational Safety and Health who reports to the Director, Labor, Employment, and Occupational Safety and Health. The Commissioner is assisted by an Assistant Commissioner (OSH) and three (3) Principal Safety Inspectors.
It should be noted that currently, Uganda has more than 130 districts and approximately one million workplaces all over the country. According to the ILO standard, the inspector to worker ratio is 1:500. In Uganda, the population employed is estimated at 34 million as compared to the 26 inspectors, which implies an inspector to worker ratio is 1:1,307,692. No wonder on average, the department conducts a few inspections since the ratio is very high meaning that the inspectors are inadequate.
In addition, the inadequate staffing within the OSH department has affected the effective administration and enforcement of the Act in as far as registration and certification of workplaces as being safe and healthy for workers. For instance, Out of approximately one million workplaces all over the country, only 3000 have been inspected, registered, and certified by the Ministry as safe and healthy working environments. This leaves the Majority 99.7% of workplaces uninspected, unregistered, and uncertified workplaces for workers which risk such workers of getting occupational injuries, diseases that result in deaths, and permanent incapacitation.
Furthermore, 15 years since the OSH Act was enacted, the government has not fully constituted the implementation structures/ bodies necessary for the implementation and enforcement of the Act. While Section 10 provides for the establishment of the Occupational Safety and Health Board whose role is to give expert advice to the Minister on matters concerning occupational safety and health, welfare, and the working environment in Uganda, to date this board has never been constituted and the ministry and the department as a whole continue to act in violation of the provisions of the law without expert advice from the board of experts envisioned under the law. More so, Section 11 also provides for the Advisory panels necessary to give advice or assistance on any workplace process, chemical, hazard, injury, or disease. Section 15 further mandates the Minister to make regulations to provide for the appointment, in prescribed cases, of safety representatives which shall be consulted by the employers as of duty regarding safety at work.
All these gaps have greatly affected the implementation and administration of the Act and thereby the government failing in the fulfillment of a constitutional right to work under a safe and healthy working environment. Therefore the understaffing of the OSH Department is a government failure to protect, respect, and remedy the right to work in a healthy and safe working environment. This failure has resulted in the majority of workers working in unsafe workplaces and thereby leading to violation of this right. It should be declared that government is in violation of this right to work in a safe working environment should increasing staffing for the department to meet the current staffing structure, appoint the persons in the statutory bodies established under the Act so that it can ease the administration.
The resource allocation to the OSH Department has over the 5 years been very low thereby impeding the enforcement of the Act for the promotion of a safe and healthy working environment. The Auditor-General Report of 2016 stated that the department last received enhanced funding in 2012 through the project “Strengthening Safeguards, Safety and Health at Workplaces (SSASHEW)”, where it received UGX 7,451.72 million for three financial years of 2012/2013, 2013/2014, 2014/2015.
Currently, the funding to the Occupational Safety and Health Department is solely funded by the government of Uganda under the Ministry of Gender, Labor, and Social Development through the National Budget. Even though the Department is solely funded by the government, the funding is not adequate to facilitate the activities of the department. Compared to other departments, the OSH is the least budgeted for the department under the Ministry of Gender, Labour, and Social Development. According to the Approved Estimates Of Revenue And Expenditure (Recurrent And Development) F/Y 2020/21 Volume I: Central Government Votes For The Year Ending On The 30th June 2021 in the Financial Year 2019/2020 when the OSH Department was allocated UGX 145, 121, 000/=, the Industrial Court was allocated UGX 1,141,200,000/= in wages and UGX 1,263,351,000/= in non-wages. The Promotion of Greener Jobs and Fair Labor Market in Uganda (PROGREL) was allocated UGX 1,580,200,000/= in wages and UGX 2,180,200,000/= in non-wages while the department of Youth and Children Affairs was allocated UGX 404,043,000/= in wages and 868,991,000/= in non-wages. It's quite ironic and alarming to find that the budget of wages under the Youth and Children Affairs department is bigger compared to that of the whole OSH Department.
The funding and appropriation to the department were found to be interfered with at the release stage by the accounting officers of the Ministry (Permanent Secretary to the Ministry). In the Ministry, the Permanent Secretary has often used the discretionary powers to channel the monies for the department to other use which leaves the department with little funding. More so, it was found that the Permanent Secretary releases the money following the Appropriation in Aid (AIA) method where the money is released depending on the performance of the department. Low output by the department attracts little funding and the department has to meet the target of the Permanent Secretary which targets the staff within the department reported to have no idea about. It is important to note that the spillover effect of inadequate staffing of the department greatly affects the performance of the department which the Accounting officer does not take into consideration while using the AIA method and therefore using the Appropriation in Aid method ignores the factors that contribute to the performance of any given government department.
Thus, such underfunding and inadequate staffing cripple the activities of the department thereby affecting the enforcement and enjoyment of the right to a safe and healthy working environment for all workers in Uganda.
Part VII of the Act provides for the registration of workplaces. Section 40(2) mandates a person who before opening up a business and occupies or uses any premises as a workplace to notify the Commissioner. And Subsection 3 prevents any person to occupy any premises as a workplace without a certificate of registration in his or her name issued by the commissioner. 99.7% of workplaces are in violation of this provision by the mere fact that they have never been registered and certified as safe and healthy working environments. Many workplaces have not adhered to this provision thus they are in breach of law. However, the law does not provide for penalties for violation of this provision.
Conclusively, the right to a safe and healthy working environment is of paramount importance for decent work and social protection pillars which are key targets in the global agenda 2030 Uganda inclusive. If not observed and adequately enforced, it affects the human Capital Development policy objective which is well-positioned in Uganda’s National Development Plans as a catalyst for economic development. Also, its non-enforcement will reduce the performance of workers at workplaces thus reducing labor capital and productivity. The reasons as to why the right is not observed in Uganda are due to the reluctance of the duty bearers the government and the employers. The problems faced like inadequate staff and resource allocation can be easily addressed to ensure that the right is adhered to and enforced.
The author Muganga Ambrose Ibabaza Fellow at the EAEPIAP, and Legal Intern at Platform for Labor Action.