Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

Minimum Age Convention, 1973 (No. 138) - Kenya (Ratification: 1979)

The Committee takes note of the Government’s report as well as of the detailed discussion which took place at the Conference Committee on the Application of Standards in June 2006. The Committee notes that the Government’s report contains no reply to its previous comments. It is therefore bound to repeat its previous observation, which read as follows:

Article 2, paragraph 1, of the Convention. Scope of application. 1. Branches of economic activity covered by the Convention. The Committee had previously noted that, according to section 25(1) of the Employment Act, the prohibition on employing children (i.e. a person under 16 years according to section 2 of the Act) is limited to work performed in industrial undertakings. It had noted that the Employment Act of 1976 (Chapter 226) and the Employment Act (Children) Rules of 1977, were being revised so as to bring the national legislation in line with the requirements of ILO Conventions. The Committee had hoped that the amended legislation would extend the application of the minimum age for admission to employment or work to all sectors of the economy. The Committee notes the Government’s information that the draft Employment Bill has extended the application of the minimum age for admission to employment to all sectors of the economy. It accordingly asks the Government to provide information on the progress made in adopting the amended version of the Employment Bill and to supply a copy of it as soon as it has been adopted.

2. Unpaid work. The Committee had previously noted that section 10(5) of the Children Act, 2001, defines the term “child labour” as any situation where a child provides labour in exchange for payment. Therefore, unpaid workers do not benefit from the protection laid down in the Children Act. The Committee had also noted the Government’s indication that 78 per cent of children (according to the 1998–99 Child Labour Report, published by the Central Bureau of Statistics of the Ministry of Finance and Planning in June 2001) were working for free in family agricultural activities and business enterprises during school holidays and after school. The Committee had requested the Government to take the necessary measures to ensure that children working for free in family agricultural activities and business enterprises were entitled to the protection afforded by the Convention, notably by amending the definition of child labour contained in section 10(5) of the Children Act. The Committee notes the Government’s indication that it intends to harmonize all legislation dealing with children and child labour to conform to the provisions of Conventions Nos 138 and 182. It hopes that the necessary amendments will soon be adopted.

Article 2, paragraph 3. Age of completion of compulsory schooling. The Committee had previously noted that, under section 7(2) of the Children Act, every child shall be entitled to free basic education which shall be compulsory. It had also noted that according to the Child Labour Report 1998-99 and the “Child labour policy”, primary education is compulsory from 6 to 13 years of age. The Committee had further noted the Government’s statement that the draft legislation on compulsory schooling which would address the gap between the age of completion of compulsory schooling (14 years of age) and the minimum age for admission to employment or work (16 years of age), was being prepared. It had requested the Government to provide a copy of the text fixing the age of completion of compulsory schooling. The Committee notes that the Government is committed to the implementation of free primary education for all children. It also notes that, the draft Employment Bill and the Children Act are in agreement over a definition of a child, described as a person under the age of 18 years. However, it notes the Government’s indication that there is no text that specifically fixes the age of completion of compulsory schooling. The Committee requests the Government to indicate whether it is envisaged to adopt legislation which would fix the age of completion of compulsory schooling at 16.

Article 3, paragraph 2. Determination of hazardous work. In its previous comments, the Committee had noted that section 10(1) of the Children Act, provides that every child under 18 shall be protected from economic exploitation and any work that is likely to be hazardous, or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development. The Committee had reminded the Government that, by virtue of Article 3, paragraph 2, of the Convention, the types of work or employment considered to be hazardous shall be determined in the national legislation after consultation with the organizations of employers and workers concerned, where such exist. It had hoped that the list of types of hazardous work would be adopted rapidly so as to bring the national legislation in line with the Convention. The Committee notes the Government’s information that it has developed a draft list of hazardous work in consultation with social partners and stakeholders. The list will be reviewed and presented to stakeholders for validation. The Committee asks the Government to provide a copy of the list of types of hazardous work as soon as it has been adopted.

Article 3, paragraph 3. Admission to hazardous work as from 16 years of age. The Committee had previously noted that section 10(4) of the Children Act provides that the minister shall make regulations in respect of periods of work and establishments where children aged at least 16 years may work. It had requested the Government to indicate whether such regulations had been issued by the competent minister and, if so, to provide a copy. The Committee notes the Government’s information that the competent minister has issued regulations referred to in section 10(4) of the Children Act, which is an act of Parliament. It once again asks the Government to provide a copy of these regulations.

Article 6. Apprenticeship. The Committee had previously noted that section 25(2) of the Employment Act, 1976, exempts any child employed in an industrial undertaking under a deed of apprenticeship from the provisions on the minimum age for admission to employment. It had also noted that, by virtue of section 8(3) of the Industrial Training Act (Chapter 237), a minor (i.e. a person under 15 years of age according to section 2 of the Act) may enter into apprenticeship with the authorization of his or her parents or guardian or, in the absence of such authorization, of a district officer or a labour officer. Therefore, there appeared to be no provisions in the national legislation that set a minimum age for entry into apprenticeship. The Committee had recalled that, by virtue of Article 6 of the Convention, only work done by persons of at least 14 years of age within the context of a programme of training or vocational guidance in enterprises is excluded from the scope of this Convention. It had hoped that the necessary amendments would be adopted so as to bring the legislation in line with the Convention. The Committee notes the Government’s indication that the Government has undertaken amendments to the Industrial Training Act (Chapter 237) in order to bring the legislation into conformity with the Convention. The Committee requests the Government to indicate whether these amendments have come into force and, if so, to provide a copy of the amended Industrial Training Act.

Article 7, paragraph 1. Admission to light work. In its previous comments, the Committee had noted that under section 3(1) of the Employment (Children) Rules, 1977, children may be permitted to work with the written permission of an authorized officer except in bars, hotels, restaurants or clubs where intoxicating liquors are sold or anywhere as a tourist guide. Employment in such places will be accepted if the Labour Commissioner has consented in writing and the child is in possession of a copy of such consent (section 3(1)). The Committee had recalled that, by virtue of Article 7, paragraph 1, of the Convention, only children from 13 years of age may be permitted to undertake light work which is not likely to be harmful to their health or development; and not such as to prejudice their attendance at school, or their participation in vocational training programmes. It had urged the Government to indicate the measures taken or envisaged to ensure that light work carried out pursuant to section 3(1) of the Employment (Children) Rules, 1977 may only be performed by children of at least 13 years of age. The Committee notes the Government’s indication that this issue has been taken into consideration in the process of reviewing the legislation. It hopes that the necessary amendments will soon be adopted.

Article 7, paragraph 3. Determination of light work. The Committee had previously reminded the Government that, by virtue of Article 7, paragraph 3, of the Convention, the competent authority shall determine the activities in which employment or work may be permitted as part of light work. The competent authority shall also prescribe the number of hours during which, and the conditions in which, such employment or work may be undertaken. The Committee had hoped that the Government would take the necessary measures to ensure that its legislation determines light work activities. The Committee notes that the Government’s report contains no information on this point. It therefore once again requests the Government to indicate the measures taken or envisaged to determine light work activities and to prescribe the number of hours during which, and the conditions in which, such employment or work may be undertaken by young persons of 13 years of age and above, in conformity with the Convention.

Article 8. Artistic performances. In its previous comments, the Committee had observed that section 17 of the Children Act provides that a child shall be entitled to leisure, play and participation in cultural and artistic activities. However, it had noted that national legislation does not provide for permits to be granted when children participate in cultural artistic performances. The Committee had drawn the Government’s attention to Article 8 of the Convention, which lays down that after consultation with the organizations of employers and workers concerned, the competent authority may, by permits granted in individual cases, allow exceptions to the prohibition of employment or work provided for in Article 2 of this Convention, for such purposes as participation in artistic performances. Permits so granted shall limit the number of hours during which, and the conditions in which, such employment or work is allowed. The Committee had requested the Government to indicate the measures taken or envisaged in this regard. The Committee notes the Government’s indication that this matter will be addressed in the subsidiary legislation, which is being revised. It asks the Government to inform it on the progress made in the revision of national legislation in order to ensure that approval for young persons below 16 years of age to take part in artistic activities is granted in individual cases.

Part V of the report form. Application of the Convention in practice. The Committee notes the Government’s statement that it will endeavour to provide information on the practical application of the Convention including statistical data on employment of children and inspection reports. It hopes that the Government will provide the requested information in its next report.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.