Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

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

Following the requests made to the Government of Kenya by this Committee and the Conference Committee on the Application of Standards at its 102nd Session (June 2013) to accept a mission to the country, the Committee notes with interest that an ILO direct contacts mission took place in Nairobi from 26 to 28 August 2014.

Article 1 of the Convention. National policy and application of the Convention in practice. The Committee previously noted the information provided by the Government representative of Kenya to the Conference Committee in June 2013 concerning the various efforts taken to improve the child labour situation through legislative and constitutional reforms, technical assistance and relevant projects and programmes, including “Tackling child labour through education” (TACKLE) and Support to the National Action Plan (SNAP) project implemented with the support of the ILO–IPEC. It noted, however, that the Conference Committee, in its conclusions of June 2013, while noting the various measures taken by the Government to combat child labour, expressed its deep concern at the high number of children who were not attending school and were involved in child labour, including hazardous work, in Kenya. Additionally, the Committee noted that according to the findings of the ILO–IPEC Labour Market Survey carried out in the districts of Busia and Kitui in 2012, over 28,692 children were involved in child labour in the district of Busia, most of them involved in farm work, domestic work, street vending or engaged in drug trafficking. The survey report in the district of Kitui indicated that 69.3 per cent of children above five years of age were reported to be working, the majority of them between the ages of 10–14 years. Of these, 27.7 per cent were involved in farm work, 17 per cent in domestic work, 11.7 per cent in sand harvesting and 8.5 per cent in stone crushing and brick making.

The Committee notes the Government’s indication that it has established several social support programmes, including cash transfer programmes aimed at providing income security to vulnerable groups in society where children may be forced to drop out of school. It also notes that according to the report of the SNAP project of January 2014, a total of 8,489 children (4,687 girls and 3,802 boys) were prevented and withdrawn from child labour. The Committee further notes that the ILO–IPEC, through the Global Action Programme (GAP 11) has supported several activities including the carrying out of a situational analysis for child domestic workers in Kenya. Accordingly, a roadmap on strengthening the institutional and legislative framework for the protection of child domestic workers has been adopted. While noting the various measures taken by the Government, the Committee notes from the SNAP project report of 2014 that child labour remains a developmental challenge in Kenya that is linked to issues such as access to education, skills training and related services, social protection and the fight against poverty. The Committee therefore strongly encourages the Government to strengthen its efforts to improve the situation of children under the age of 16 years and to ensure the progressive elimination of child labour, including domestic work by children, in the country. It requests the Government to continue providing information on the measures taken in this regard, as well as the results achieved. In addition, the Committee requests the Government to take the necessary measures to make available updated statistical information on the employment of children and young persons in the country.

Article 3(2). Determination of hazardous work. The Committee previously noted the Government’s statement that the list of types of hazardous work prohibited to children under 18 years which had been approved by the National Labour Board would be incorporated into the Employment Act Regulations of 2013 and would be adopted soon. It requested the Government to ensure that the Regulations would be adopted in the near future.

The Committee notes with satisfaction that the fourth schedule of the Employment (General) Rules, adopted in 2014, contains a list of 18 sectors including 45 types of work prohibited to children under the age of 18 years (section 12(3) read in conjunction with section 24(e)). These sectors include: domestic work; transport; internal conflicts; mining and stone crushing; sand harvesting; miraa picking; herding of animals; brick making; agriculture (working with machinery, chemicals, moving and ferrying heavy loads); industrial undertaking, warehousing; building and construction work (earth digging, carrying stones, shoveling sand, cement, metalwork, welding, work at heights, in confined spaces and with risk of structural collapse); deep lake and sea fishing; matches and fireworks; tannery; urban informal sector and street work (begging); scavenging; tourism; and service work. The Committee further notes that according to section 16 of the Employment (General) Rules, any person who contravenes any of the provisions related to the employment of children, including the prohibition on employing children in the hazardous types of work listed in the fourth schedule, shall be punished with a fine not exceeding 100,000 Kenyan shillings (KES) (approximately US$982) or to imprisonment for a term not exceeding six months or both. The Committee requests the Government to provide information on the application in practice of section 16 of the Employment (General) Rules of 2014, including statistics on the number and nature of violations reported and penalties imposed for the violations pursuant to sections 12(3) and 24(e).

Article 7(3). Determination of light work. Noting the Government’s statement that the regulations prescribing light work in which a child of 13 years of age and above may be employed and the terms and conditions of that employment pursuant to section 56(3) of the Employment Act had been developed, the Committee expressed the firm hope that these regulations would be adopted soon.

The Committee notes with interest that according to section 12(4) of the Employment (General) Rules, a child between the ages of 13 and 16 may be employed in any light work contained in the fifth schedule which includes: work performed at school as part of the school curriculum; agricultural or horticultural work not exceeding two hours; delivery of non-bulk newspapers or printed materials; work in shops including shelf stacking; domestic hair dressing; light office work; car washing by hand in private residential settings; and work in a cafe or restaurant provided the nature of work is restricted to waiting on tables. Moreover, section 26 of the Employment (General) Rules prohibits children of 13 and 16 years of age from being employed in work which is likely to be harmful to the child’s health and development or which would interfere with the child’s education.

Article 8. Artistic performances. The Committee 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 also noted the Government’s information that a regulation on granting of permits for artistic performances has been formulated and forwarded for adoption under the Employment Act Regulations of 2013.

The Committee notes from the Report of the Ministry of Labour, Social Security and Services (Report of the MoLSS) to the ILO direct contacts mission visit of August 2014 that the rules and regulations concerning the participation by children below 18 years in advertising, artistic and cultural activities will be submitted to the Attorney General’s Office for gazettement. According to this report, this regulation includes provisions related to contracts of employment, remuneration, hours of work, area of protection and offences and legal proceedings. The Committee expresses the firm hope that the regulations concerning the participation of children in artistic performances will be adopted in the near future. It requests the Government to provide a copy, once it has been adopted.

Noting from the report of the MoLSS of its intention to seek ILO technical assistance in its efforts to combat child labour, the Committee encourages the Government to consider seeking technical assistance from the ILO.

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