Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) - Kenya (Ratification: 1979)

Articles 10, 12 and 14(a) of the Convention. National policy on equality of opportunity and treatment, and free choice of employment. For a number of years, the Committee has addressed the issue of the existing policy of “Kenyanization” of employment which was considered by the Committee as contrary to the principle established by the Convention of equality of opportunity and treatment between national and foreign workers provided that foreign workers are residing lawfully in the country of employment. The Committee notes with interest that section 5 of the Employment Act 2007 provides that the Minister, labour officers and the Industrial Court shall promote and guarantee equality of opportunity for a person who is a migrant worker or a member of his or her family lawfully within Kenya. Section 5 also prohibits direct and indirect discrimination on the grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, mental status or HIV status, with respect to recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of employment. Besides, it establishes that an employer shall pay his or her employees equal remuneration for work of equal value. The Committee further notes the adoption of the National Gender and Equality Commission Act, 2011 and the Citizens and Foreign Nationals Management Service Act, 2011. The Committee requests the Government to indicate the manner in which section 5 of the Employment Act 2007 is applied in practice, namely how it is translated into a national policy designed to promote and to guarantee equality of opportunity and treatment in respect of employment and occupation, social security, trade union and cultural rights and individual and collective freedoms for persons who, as migrant workers or as members of their families are lawfully within its territory, as provided in Articles 10 and 12(a)–(g) of the Convention. Please provide information on the functioning of and the measures adopted on these issues by the National Gender and Equality Commission and the Citizens and Foreign Nationals Management Service.

The Committee is raising other points in a request addressed directly to the Government.