The Private Security Regulatory Authority (PSRA) in November 2023 released a Legal Notice which set the minimum wage for private security officers at Kshs.30,000 per month. While this was a move that was highly welcomed by the private security guards in the country, their employers were not amused, let alone ready to comply. The Legal Notice came with a Legal Commitment from PSRA, requiring employers to pay the set minimum wage within seven days, failure to which their firms would be deregistered. 

The PSRA is a government agency created under the Private Security Regulation Act, 2016.  The Act regulates persons involved in carrying out private security services, such as private security officers, security guards, private security service providers, private security firms and private investigators.

The function of the PSRA, as stipulated under the Act, includes but is not limited to registering and licensing all persons involved in conducting private security services in Kenya but also provides and sets standards that ensure compliance with the minimum wage regulations. PSRA Regulations were annulled by Parliament in 2019 for various reasons, including inadequate public participation where views from consumers and the public were only conducted in Nairobi. The Regulations had provided proof of compliance with the set minimum wages published. However, since the Regulations were annulled, the Legal Commitment lacks a legal basis for implementation. Additionally, failure to comply with the Legal Commitment cannot be a reason for deregistering a security firm. The Private Security Regulation Act sets out grounds under which PSRA can cancel a licence, which does not include failure to comply with minimum wages.

The Cabinet Secretary for Labour published Regulations of Wage (General) (Amendment) Order, 2022 vide Legal Notice No. 125 which set out the minimum wages for different occupations. The Order took effect in May 2022, setting out the minimum wage per month for a day and night watchman at Kshs. 15,201 and Kshs. 16,959 respectively. This Order is still in force. The minimum wage set by PSRA was twice the minimum wage Order published in 2022. This prompted a petition in Eldoret High Court by the Association of North Rift Security Firms protesting the Legal Notice. The hearing of the petition was set for 18th January 2024, however, two days to the hearing date, the petition was settled, and the file closed upon the consent of the petitioner. This meant that the High Court gave implementation of the Legal Notice the green light. 

In a surprising turn of events and yet barely a week later, another petition was filed at the High Court in Nairobi by a different petitioner who sought stay orders on implementation of the set minimum wage for private security guards. The application certified as urgent was issued with conservatory orders on implementation of the Legal Notice pending the hearing and determination of the Petition. The interparty hearing of the petition has been set for 12th February 2024.

Cautious not to breach the subjudice rule, the Legal Notice by PSRA does not observe the freedom of contract. Whilst the Minimum Wage Order is still in force, parties have the freedom to contract and agree on remuneration for services offered. Penalising an employer for failure to pay their employees a set minimum wage is a breach of the freedom of contract. Additionally, ballooning lawsuits on breach of contracts will be inevitable as employers sue their employees for breach of contract. This, in effect, will lead to a scaling down of employees as the employers cannot afford the burgeoning employment costs. Loss of jobs has a huge impact on the economy, which continues to worsen every other day.

Public participation is among the national values enshrined in Article 10 of the Constitution. The principle of public participation entails consultation of the public and relevant stakeholders in decision-making. The Cabinet Secretary in charge of Internal Security is mandated under the Act while publishing the code of conduct, which contains rules on ensuring payment of minimum wage to conduct public participation. This seems not to have been the case. Public participation would have highlighted the bases considered by PSRA in reaching the minimum wage of Kshs.30,000. 

One might have thought that the Ministry of Labour gave a nod to the Legal Notice published by PSRA, which was twice as high as the minimum wage published in its 2022 Order. After all, the government is expected to be speaking from the same page and the Ministry of Labour is mandated with the responsibility of setting minimum wages. Unfortunately, in a press release statement by the Ministry of Labour, the Cabinet Secretary distanced himself from the contents of the PSRA’s Legal Notice. The Cabinet Secretary, in the statement, stated that a private security wage council will be established to investigate the matter.  

The Labour Institutions Act provides that a wage council may investigate the remuneration and conditions of employment in any sector and make recommendations to the Cabinet Secretary of Labour on minimum wage remuneration and conditions of employment.

It would be keen to monitor the establishment of the Private Security Wage Council and their recommendations on minimum wages. Noting that this may open a pandora’s box for other sectors that will raise issues of discrimination. Also keen is the High Court hearing on the Legal Notice and its accompanying legal commitment.