Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

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

Article 2, paragraph 3, of the Convention. Age of completion of compulsory schooling. The Committee had previously noted that, under section 7(2) of the Children’s 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 information that children in Kenya complete schooling at different ages and that the Government had not envisaged fixing the age of completion of compulsory schooling. In this respect, the Committee had noted the information provided by the Government of Kenya to the Conference Committee on the Application of Standards in June 2006 concerning the application of the Minimum Age Convention, 1973 (No. 138), that it had appointed a committee to review the Education Act with a view to modifying, inter alia, the age of completion of compulsory schooling. Recalling that this Convention had been ratified by Kenya more than 25 years ago, the Conference Committee had urged the Government to ensure that legislation addressing the gap between the age of completion of compulsory schooling and the minimum age for admission to employment or work would be adopted shortly.

The Committee notes the Government’s indication that the average age for completing free primary education is 14–16 years. It also notes the Government’s statement that in order to address the gap between the minimum age for admission to employment and the age of completion of compulsory schooling, the Government has waived the tuition fees for the first two years in secondary schooling. It further notes the Government’s indication that it has not envisaged adopting any legislation fixing the age of completion of compulsory education. The Committee notes, however, that according to UNICEF statistics for 2007, the gross enrolment rate in primary education is 75 per cent for boys and 76 per cent for girls, and that the rate for secondary education is 52 per cent for boys and 49 per cent for girls. It also notes that according to the Global Monitoring Report 2009 on Education for All, published by UNESCO, there are about 0.9 million out-of-school children in Kenya. The Committee expresses concern at the relatively low enrolment rate for secondary education and the number of out‑of‑school children in Kenya. The Committee is of the view that compulsory education is one of the most effective means of combating child labour and it is important to emphasize the necessity of linking the age of admission to employment to the age limit of compulsory education. If the two ages do not coincide, various problems may arise. If compulsory schooling comes to an end before the young persons are legally entitled to work, there may be a period of enforced idleness (see ILO: Minimum age, General Survey of the reports relating to Convention No. 138 and Recommendation No. 146 concerning minimum age, report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 4(B)), ILC, 67th Session, Geneva, 1981, paragraph 140). The Committee therefore urges the Government to take the necessary measures to set the age of completion of compulsory schooling at 16 years, as a matter of urgency. It requests the Government to provide information on the developments made in this regard. The Committee also requests the Government to redouble its efforts to improve the operation of the education system, in particular by increasing school enrolment and attendance rates among children under 16 years of age at the primary as well as the secondary level.

Article 3, paragraph 2. Determination of hazardous work. The Committee had previously noted the Government’s statement that the stakeholders had approved a list of the types of hazardous work which would be presented to the National Labour Board for final approval, before the minister assented to it as part of legislation. The Committee notes the Government’s information that the list is still undergoing the process of approval by the National Labour Board and thereafter adoption by the minister. The Committee expresses the firm hope that the list of types of hazardous work will be adopted in the very near future. It requests the Government to supply a copy of the same 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’s 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, including hazardous work. It had also noted the Government’s indication that the competent Minister had issued regulations referred to in section 10(4) of the Children’s Act, which is an Act of Parliament. The Committee notes the Government’s statement that the Children’s Act is currently being reviewed and that the copy thereof will be sent after adoption by the Parliament. The Committee hopes that the regulations issued under section 10(4) of the Children’s Act will be adopted soon. It requests the Government to provide a copy thereof, as soon as it has been adopted.

Article 6. Apprenticeship. The Committee had previously noted the Government’s indication that the Industrial Training Act was being amended to bring the legislation into conformity with the Convention with regard to apprenticeship. It had noted that, according to section 58(1) of the Employment Act of 2007, no person shall employ a child of between 13 and 16 years of age, other than one serving under a contract of apprenticeship or indentured learnership in accordance with the provisions of the Industrial Training Act, in an industrial undertaking to attend to machinery. Similarly, section 57 of the Employment Act, which lays down the penalties for breach of the provisions of light work by children, exempts children between the ages of 13 and 16 years who are subject to the provisions of the Industrial Training Act relating to contracts of apprenticeship. The Committee had observed that, according to the Employment Act of 2007, children between 13 and 16 years of age are allowed to take part in apprenticeship programmes subject to the provisions of the Industrial Training Act. In this regard, the Committee had reminded the Government that Article 6 of the Convention fixes a minimum age of 14 years for work done in undertakings, where such work is carried out in accordance with conditions prescribed by the competent authority, after consultation with the organizations of employers and workers concerned, where such exist, and is an integral part of: (a) a course of education or training for which a school or training institution is primarily responsible; (b) a programme of training, mainly or entirely, in an undertaking, which programme has been approved by the competent authority; or (c) a programme of guidance or orientation designed to facilitate the choice of an occupation. The Committee once again notes the Government’s information that the Industrial Training Act is being amended to bring the legislation into conformity with the Convention. The Committee expresses the firm hope that the amendments to the Industrial Training Act will be adopted in the near future with a view to bringing it into conformity with the Convention. It requests the Government to provide information on any developments in this regard.

Article 7, paragraph 3. Determination of light work. The Committee had previously noted that, according to section 56(3) of the Employment Act, the minister may make rules prescribing light work in which a child of 13 years may be employed and the terms and conditions of that employment. The Committee had requested the Government to take the necessary measures to determine the light work activities that may be undertaken by children of 13 years of age and to prescribe the number of hours during which, and the conditions in which, such work may be undertaken. The Committee notes the Government’s statement that while the reviewing of the rules and regulations has not yet been completed, these rules and regulations clearly stipulate the types of light work activities permitted to children under 13 years, and the hours and conditions of such employment. The Committee expresses the firm hope that the regulations determining the light work activities that may be undertaken by children of 13 years of age and the number of hours during which, and the conditions in which, such work may be undertaken, will be adopted in the near future. It requests the Government to provide a copy of the regulations as soon as they have been adopted.

Article 8. Artistic performances. The Committee had previously noted section 17 of the Children’s Act, which provides that a child shall be entitled to leisure, play and participation in cultural and artistic activities. It had noted that the national legislation does not provide for permits to be granted to children participating in cultural artistic performances. The Committee once again notes the Government’s information that no consultations with the social partners with regard to the granting of individual permits for artistic performances have been so far undertaken. It further notes the Government’s indication that this matter will be addressed in the subsidiary legislation yet to be completed. The Committee once again expresses the firm hope that in its next report the Government will be in a position to provide information 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 performances is required in individual cases. It also reminds the Government that the permits so granted must prescribe the number of hours during which, and the conditions in which, such employment or work shall be permitted.

Article 1 and Part V of the report form. National policy and application of the Convention in practice. The Committee notes the Government’s information that the incidence of child labour in Kenya has reduced tremendously from 1.9 million in 1998–99 to 951,273 in 2005. According to the Government’s report this reduction is attributed to the following measures taken by the Government: free primary education; fee waiver for the first two years of secondary education; financial assistance to orphans and vulnerable children; policy development and legislation; social mobilization and awareness raising among the general population; enhanced capacity among stakeholders on child labour issues; expanded knowledge base through research; and strong partnerships with stakeholders among other interventions. The Committee notes, however, the Government’s statement that it is also experiencing the following challenges in the fight against child labour:

–           information on the employment of children is hard to obtain as most of the employers do not keep records of child employment or claim other reasons for keeping them as employees;

–           serious unemployment problems coupled with high poverty and the HIV pandemic;

–           enforcement of child labour legislation is weak due to lack of resources, transport, and manpower;

–           lack of alternative placement such as vocational training institutions for children removed from child labour.

The Committee notes, however, the information provided by the Government in its report under Convention No. 182 that in order to face the above challenges the Government has adopted several measures including: strengthening and enhancing the monitoring capacity of the district child labour committees and the local child labour committees; reviewing and upgrading the child labour monitoring system under the ILO–IPEC TACKLE project in order to develop a central data system for children; and implementing a cash transfer programme for families having orphans and vulnerable children (OVC) including orphans of HIV/AIDS. The Committee encourages the Government to continue taking similar measures to face the abovementioned challenges experienced in the fight against child labour and to provide information in this regard. Moreover, while noting the improvement in reducing the incidence of child labour over the past few years, the Committee nevertheless urges the Government to redouble its efforts to ensure the progressive abolition of child labour. The Committee further requests the Government to provide information on the application of the Convention in practice, including, for example, statistics on the employment of children and young persons, extracts from the reports of the inspection services and information on the number and nature of the contraventions reported and sanctioned imposed.