Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

Workmen's Compensation (Accidents) Convention, 1925 (No. 17) - Kenya (Ratification: 1964)

1. With reference to its previous comments, the Committee notes the following information that was provided by the Government in its report and the information communicated to the Conference Committee in 1990. As regards the amendments made by Act no. 22 of 1987 to the Workmen's Compensation Act (Revised edition 1988), the Committee refers to its observation of 1989 and recalls that these amendments, which had the effect of raising the amount of the benefits payable to workmen and their dependants, have still not given full effect to Articles 5, 9, 10 and 11 of the Convention.

The Committee also notes with interest the draft Work Injury Benefits (Insurance) Scheme Act which was transmitted by the Government with its report. This draft text provides for important improvements in relation to the legislation that is in force. It provides for the replacement of the workmen's compensation scheme financed by the employer with a social insurance scheme against industrial accidents and occupational diseases, which should make it possible to give effect to Article 11 of the Convention. Furthermore, under the terms of the draft text, the compensation due in the event of occupational injury to victims who are permanently disabled, or to their dependants (in the event of the victim's death), will be paid principally in the form of periodical payments, which should make it possible to give better effect to Article 5 of the Convention.

The Committee however notes that this draft text, on which the International Labour Office made a number of comments and communicated them to the Government, at its request, in a letter dated 12 October 1990, includes certain divergencies with the Convention on the following points:

Article 2 of the Convention. Section 13(2) of the draft text excludes the compensation of workers employed ordinarily outside Kenya but temporarily employed in Kenya by an employer who carries on business chiefly outside Kenya, unless an agreement has been concluded to the contrary. This exclusion is not covered by the cases mentioned in Article 2, paragraph 2, of the Convention.

Article 5. Sections 53(2)(c) and 61 of the draft text provide for the payment of a lump sum where a degree of incapacity is less than 40 per cent or where the amount of the compensation is less than a certain sum. Section 63 of the draft text provides for monitoring of the payment of compensation in the form of a lump sum, although it would not appear to provide for sufficient guarantees to ensure that the sum is properly utilised, as set out in Article 5 of the Convention.

Article 7. The Committee notes that by virtue of section 61(1) of the draft text (at the bottom of page 42) the payment of the additional allowance in the event of incapacity that necessitates the constant assistance of another person may be limited to a specific period, whereas such a restriction is not authorised by the Convention, since the additional compensation shall be provided for as long as the state of health of the victim necessitates it.

Article 8. The draft text should be completed in such a way as to explicitly lay down that any workman who is victim of an employment accident, whose degree of incapacity is subsequently altered following a worsening of his condition, may have the amount of his pension reviewed.

Articles 9 and 10. Section 73(2)(a) of the draft text provides for the setting of maximum limits for the reimboursement of expenses, particularly those incurred for medical, surgical or pharmaceutical care and for the supply and replacement of artificial limbs and surgical appliances, whereas the determination of such limits is not authorised by the Convention, as the Committee has been emphasising for many years.

The Committee therefore hopes that the draft Work Injury Benefits (Insurance) Scheme Act will be amended so as to take into account the above points and the comments made by the ILO. It also hopes that the draft text, once it has been amended, will be adopted in the near future in order to give full effect to the Convention. The Committee requests the Government to supply information on any progress achieved in this respect and to transmit the text of the legislation when it has been adopted.

2. The Committee wishes to draw the Government's attention to the fact that there appears to be an error in the wording of section 32 of the Workmen's Compensation Act (Revised Edition) 1988, since subsection 1(a) respecting medical care has not been reproduced, even though reference is made to it in subsection (2).

[The Government is asked to report in detail for the period ending 30 June 1991.]