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

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Kenya

In order to provide an overview of matters relating to the application of the ratified Conventions on migrant workers, the Committee considers it appropriate to examine Conventions Nos 97 and 143 together.

Matters commons to the application of Conventions Nos 97 and 143

Statistical data on migration. The Committee takes note of the migration profile established in 2015 and updated in 2018 by the International Organization for Migration (IOM), in partnership with the Government, showing that for the year 2017: 29.318 foreign nationals were registered in Kenya, a total of 488.415 refugees and asylum seekers were present in the country and the total amount of remittances sent by the diaspora into the country amounted approximately to USD 1.946.896. The Committee recalls that appropriate data and statistics are crucial in determining the nature of labour migration and inequalities of treatment faced by migrant workers, to set priorities and design measures, and to evaluate their impact (2016 General Survey, Promoting fair migration, paragraph 648). The Committee requests the Government to continue to: (1) collect and analyse relevant data on migration flows to and from Kenya; (2) collect and analyse data on the situation of migrant workers in Kenya, including data on the proportion and situation of migrant workers in irregular status in the country; and (3) to inform on whether such data are being collected by the National Bureau of Statistics.

Articles 1 of Convention No. 97 and Articles 10 and 12 of Convention No. 143. National migration policy. In its last comment, the Committee noted that a number of institutions were responsible for the implementation of the policies related to migration (such as the National Labour Board, the Work Permits Committee, the Kenya Citizens and Foreign Nationals Management, the External Remittances and Foreign Employment Committee, and the National Diaspora Council of Kenya (NADICOK)) and requested information on their respective activities. The Committee notes that in its reports, the Government indicates that the National Coordination Mechanism is responsible for the inter-agency coordination on migration, and that a Labour Migration Policy and of a Labour Migration Management Bill are currently under development. The Committee requests the Government to provide information on the results of its efforts to coordinate the activities of all the agencies competent to address labour migration, as well as on the status of the Labour Migration Policy and the Labour Management Bill, their content, and if adopted, their implementation in practice.

Articles 1, 7 and 10 of Convention No. 97 and Article 4 of Convention No. 143. Cooperation between States. The Committee takes note of the information provided by the Government on its engagement with other members on migration related issues. Specifically, the Government indicates that: (1) the Government discusses these matters in the context of the Regional Consultative Processes; (2) the country is part of the East African Community (EAC) and as such adopted the EAC Common Market Protocol that allows for the free movement of EAC nationals; (3i) the country is a member of the Northern Corridor Integration Program (NCIP) which allows the use of identity cards for travels; (4) Kenya is a member of the Steering Group of the Global Forum on Migration and Development (GFMD), of the International Organization for Migration, and of the Executive Committee of the Programme of United National High Commissioner for Refugees; and (5) Kenya has signed a number of bilateral labour agreements (BLA) and Memorandum of Understandings (MOUs) regarding migration, such as for example, two MOUs signed with Germany in 2007, and the BLAs signed with Saudi Arabia, Qatar and the United Arab Emirates (UAE) in 2017. In this respect, the Committee refers the Government to the ILO General Principles and Operational Guidelines for Fair Recruitment and Related Costs inviting Members to make the international agreements on labour migration publicly available.

Article 8 of Convention No. 97 and Article 8 of Convention No. 143. Legal status in the event of incapacity for work or loss of employment. Previously, the Committee had requested the Government to provide information on the practical implementation of section 41(1)(b) of the Kenya Citizenship and Immigration Act, 2011 providing, that where a permit has been issued to a person and that person ceases to engage in the said employment, occupation, trade, business or profession, the permit shall cease to be valid. The Committee recalls that article 8 of both instruments state that the loss of the employment of a migrant worker residing legally in the country shall not in itself imply the withdrawal of the authorisation of residence or the work permit. Noting that the Government does not provide information in this regard, the Committee reiterates its request to the Government to indicate in which cases of termination of employment section 41(1)(b) of the Kenya Citizenship and Immigration Act, 2011 applies.

Article 6 of Convention No. 97 and Articles 10 and 12 of Convention No. 143. Equality of treatment. Application in practice. In its previous comments, the Committee noted that pursuant to section 5 (1)(b) of the Employment Act, 2007 it shall be the duty of the Minister, labour officers and the Industrial Court to promote and guarantee equality of opportunity for a person who is a migrant worker or a member of the family of the migrant worker, lawfully within Kenya - and requested information on the application of this section in practice. The Committee also requested information on the work of the labour inspectorate in relation to the protection of migrant workers’ right to equal treatment. Noting that the Government is silent in this regard, the Committee requests again the Government to provide information on the number of cases related to the application of section 5 of the Employment Act, 2007 detected by or brought to labour inspectors, the nature of these cases and their outcomes (number of cases brought to court, sanctions and penalties imposed).

Matters specifically relating to the application of Convention No. 97

Articles 2 and 4. Free services and assistance to migrant workers. Measures in place to facilitate the departure, journey and reception of migrants for employment. The Committee requested the Government to indicate how it was ensured that sufficient information was provided to migrant workers, and whether the services provided to migrant workers were free of charge. The Committee notes the indication by the Government that it provides pre-departure trainings and collaborates with labour attachés in its missions in the destination countries, such as Qatar, United Arab Emirates and Saudi Arabia. The Committee also observes that the Strategic Plan 2018-2022 of the State Department of Labour refers to the implementation of a programme of pre-departure training and orientation, that has served 5,100 migrant workers since 2018. Furthermore, the Committee notes with interest the launch in 2019 of the Kenya Migrant Workers Information Website that includes detailed information on labour migration to the Gulf region. The Committee requests the Government to continue its efforts to provide accurate information to migrant workers and to indicate what other free services, if any, are delivered to migrant workers to facilitate their departure, journey and reception in countries of destination; and in particular on measures put in place to assist migrant workers during their stay in the country of destination.

Article 3. Measures against misleading propaganda. The Committee requests again the Government to provide information on the sanctions imposed for the dissemination of misleading propaganda on labour migration.

Article 5. Medical services. In the absence of information provided by the Government in this respect, the Committee reiterates its request to the Government to specify the conditions under which the medical examinations of migrant workers required, in virtue of sections 48(1)(d) and 33(2)(a) of the Kenya Citizenship and Immigration Act on the medical examination of migrant workers, is implemented in practice, including the kind of medical exams performed.

Matters specifically relating to the application of Convention No. 143

Articles 1 and 9. Basic human rights of all migrant workers and rights arising out of past employment. In its last comment, the Committee requested the Government to provide information on the measure taken to ensure that: (1) the fundamental rights of migrant workers in irregular situation; and (2) their rights deriving from previous employment are fully respected. The Committee notes that the Government does not provide information on both of these points. However, it observes that the Strategic Plan of the Kenya Commission on Human Rights (KCHR) 2018-2023 refers to the need for the KCHR to lobby for a human rights approach in Migration governance. The Committee also notes that the Employment Act, 2007 applies to “employees” defined as persons employed for wages or a salary (Section 2 of the Employment Act, 2007), which would cover migrant workers independently of their migration status. The Committee requests the Government to communicate on the measures taken to ensure the protection of the basic human rights of all migrant workers, including those without lawful status – such as information on: (i) the activities of the Kenya Commission on Human Rights (KCHR) to lobby for a human rights approach in migration governance; (ii) the investigations conducted by labour inspectors or other entities on human rights abuses against migrant workers; and (iii) the number of cases of human rights abuses against migrant workers detected and brought to justice, and on the outcome of these cases. The Committee also requests the Government to provide information on the measures adopted to facilitate the access of migrant workers in irregular status to remedies with regard to their rights deriving from previous employment – such as information on: (i) the number of complaints filed by undocumented migrant workers regarding their employment rights and the outcome of these complaints; and (ii) any facilities given to them to reside lawfully in the country while the proceedings are pending.

Articles 2-6. Measures to detect and address irregular migration and abuses against migrant workers. The Committee had requested the Government to provide information on the implementation of the Counter-Trafficking in Persons Act, 2010 and the Kenya Citizenship and Immigration Act, 2011, and of the policies and plans adopted to combat trafficking in person. The Committee takes note of the information provided by the Government regarding the activities of the Counter Trafficking in Persons Advisory Committee (CTPAC) and the National Assistance Trust Fund for Victims of Trafficking in Persons. Specifically, it notes that the CTPAC meets every four months to address issues of prevention, protection, and rehabilitation of victims of trafficking in persons, partners with other agencies, and trains government officials and stakeholders on counter trafficking. The Government also refers to the National Plan of Action for Combating Human Trafficking 2013-2017 which provides for actions on the capacity building of service providers, public awareness raising, data collection and research, the reduction of fraudulent employment, direct assistance to victims, and international cooperation. The Committee further notes that the Government indicates that for the year 2014, 65 cases of trafficking were prosecuted. Lastly, the Committee takes note of the indication by the Government that it put in place stern rules for the registration and monitoring of the activities of employment agencies for the placement of Kenyan workers abroad. The Committee asks the Government to provide information on:

• - the concrete results of the 2013-2017 National Plan of Action for Combating Human Trafficking (such as any statistical information available on human trafficking, and updated information on the number of cases detected and their outcome);
• - the sanctions applied in practice in the event of unlawful employment of migrant workers, or the organization of migration in abusive conditions;
• - the regulation of employment agencies (such as information on their registration process, the conditions for the revoking of their licenses, information on the monitoring system in place, on whether there is mechanism available to migrant workers to file complaints against these agencies, and a copy of the code of conduct adopted by the Kenya Association of Private Employment Agencies referred to in the past reports of the Government).

Articles 2(2) and 7. Consultation of employers’ and workers’ organizations. The Committee recalls that it had requested the Government to indicate how the employers’ and workers’ organizations are being consulted with regard to the measures designed and implemented to eliminate irregular migration and abuses against migrant workers. It notes the Government’s indication that it has undertaken a participatory approach by sharing and soliciting views of employers and workers for the formulation of the Labour Migration Management Bill. The Committee also notes that the National Plan of Action for Combating Human Trafficking 2013-2017 provides for the involvement of the social partners for its implementation and refers in this regard to the important role of the Central Organization of Trade Union (COTU) and the Federation of Kenya Employers (FKE). The Committee asks the Government to provide further information on the impact of the involvement of the social partners in the development, and if applicable, the implementation of the Labour Migration Policy and the Labour Migration Management Bill, and to indicate whether they are being consulted with regard to any other measure to eliminate irregular migration and abuses against migrant workers (specifying whether and how the proposals of the workers’ and employers’ organizations are assessed in practice).

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

The Committee notes with regret that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments initially made in 2012.

Repetition

The Committee notes that following the process of law reform undertaken by Kenya a series of new laws have been adopted. The Committee notes in particular the adoption of the Employment Act, 2007, the Labour Institutions Act 2007, the Labour Relations Act, the Work Injuries Benefits Act and the Occupational Safety and Health Act. The Committee notes in this respect, the Government’s indication that migrant workers are covered by these new laws. The Committee further notes the adoption of the Kenya Citizenship and Immigration Act 2011 and the Kenya Citizens and Foreign Nationals Management Service Act 2011. Finally, the Committee notes the Kenya National Commission on Human Rights Act, 2011 and the National Gender and Equality Commission Act 2011. The Committee requests the Government to indicate if migrant workers, and which categories of them, are covered by all of these laws, and to provide information on the manner in which their provisions give effect to the Convention. Noting that the Government’s report contains no substantive information, the Committee requests the Government to provide information on all the aspects covered by the Convention and refers in this respect to the questions set out in the report form of the Convention.

Articles 1 and 9 of the Convention. Basic human rights of all migrant workers and rights arising out of past employment. The Committee requests the Government once again to provide information on any legislative or other measures taken or envisaged to ensure that the fundamental rights of migrant workers in an irregular situation are fully respected and how their rights deriving from previous employment, particularly as regards remuneration and social security, are protected. Please include information disaggregated by sex, nationality and sector of activity on the situation of migrant workers, whether in a regular or irregular situation, subject to abusive conditions of work, as well as information on the measures adopted in relation to the protection of migrant workers’ human rights by the National Commission on Human Rights.

Articles 2–7. Measures to detect and address irregular migration. The Committee notes the adoption of the Counter-Trafficking in Persons Act, 2010 that contains provisions for the prosecution of those responsible for trafficking and the protection of victims of trafficking, including their repatriation, immunity from prosecution, the possibility to remain in Kenya until legal proceedings are concluded and the eligibility to work for the duration of their necessary presence in Kenya. The law also provides that the Minister shall formulate plans for the provision of appropriate services for victims of trafficking. The Committee also notes that the Kenya Citizenship and Immigration Act 2011 considers “prohibited immigrants those persons engaged in trafficking in persons and human smuggling”, as well as those persons whose presence or entry into Kenya is unlawful. The Committee further notes that the Kenya Citizens and Foreign Nationals Management Service Act 2011 provides that the Service will be responsible for the implementation of policies, laws and any other matters related to citizenship and immigration. The Committee requests the Government to provide information on the following:

• (i) the practical implementation of the Counter-Trafficking in Persons Act, 2010 and the Kenya Citizenship and Immigration Act 2011 and their impact on the elimination of irregular migration;
• (ii) the policies and plans drafted by the Kenya Citizens and Foreign Nationals Management Service, or any other national entity, to combat trafficking in persons;
• (iii) any administrative, civil and penal sanctions applied in practice in the event of the unlawful employment of migrant workers, the organization of migration in abusive conditions and assistance provided wittingly to such migration; and
• (iv) how employers’ and workers’ organizations are being consulted with regard to the measures designed and implemented to prevent and eliminate irregular migration and abuse against migrant workers.

Article 8. The Committee notes that section 41(1)(b) of the Kenya Citizenship and Immigration Act 2011 provides that where a permit has been issued to a person and that person ceases to engage in the said employment, occupation, trade, business or profession, the permit shall cease to be valid and the presence of that person in Kenya shall be unlawful. In this regard, the Committee recalls that Article 8(1) of the Convention provides that “On condition that he has resided legally in the territory for the purpose of employment, the migrant worker shall not be regarded as in an illegal or irregular situation by the mere fact of the loss of his employment, which shall not in itself imply the withdrawal of his authorisation of residence or, as the case may be, work permit”. In order to be able to determine to what extent section 41(1)(b) of the Kenya Citizenship and Immigration Act, 2011 is in conformity with Article 8(1) of the Convention, the Committee requests the Government to provide information on the practical application of this section, namely in which cases of termination of employment it is applied.

Articles 10 and 12. National policy on equality of opportunity and treatment. The Committee notes that section 46(6) of the Kenya Citizenship and Immigration Act 2011 provides that learning institutions shall, before admitting a person for purposes of training or instructions ensure that such person is not a foreign national who is unlawfully residing in the country. The Committee draws the Government’s attention to the fact that this type of measures may reinforce stereotypes and prejudices regarding the status of migrant workers and adversely affect measures designed to promote tolerance and mutual respect between the migrant population and nationals. The Committee requests the Government to provide information on the practical application of this provision.

Statistics on migration flows. The Committee notes that the Government refers to the difficulty faced in obtaining statistical information and indicates the readiness of the Government to receive technical assistance in this respect. The Committee hopes that the Government will soon be in a position, with the necessary ILO technical assistance, to provide relevant statistics regarding migration flows to and from Kenya, and asks the Government to continue to report on the progress made in this regard.

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

The Committee notes with regret that the Government’s report has not been received. It is therefore bound to repeat its previous comments initially made in 2012.

Repetition

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 matters in a request addressed directly to the Government.

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

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes that the Government’s report contains no reply to its previous comments. It hopes that the next report will contain full information on the matters raised in its previous comments initially made in 2012.

Repetition

The Committee notes that following the process of law reform undertaken by Kenya a series of new laws have been adopted. The Committee notes in particular the adoption of the Employment Act, 2007, the Labour Institutions Act 2007, the Labour Relations Act, the Work Injuries Benefits Act and the Occupational Safety and Health Act. The Committee notes in this respect, the Government’s indication that migrant workers are covered by these new laws. The Committee further notes the adoption of the Kenya Citizenship and Immigration Act 2011 and the Kenya Citizens and Foreign Nationals Management Service Act 2011. Finally, the Committee notes the Kenya National Commission on Human Rights Act, 2011 and the National Gender and Equality Commission Act 2011. The Committee requests the Government to indicate if migrant workers, and which categories of them, are covered by all of these laws, and to provide information on the manner in which their provisions give effect to the Convention. Noting that the Government’s report contains no substantive information, the Committee requests the Government to provide information on all the aspects covered by the Convention and refers in this respect to the questions set out in the report form of the Convention.

Articles 1 and 9 of the Convention. Basic human rights of all migrant workers and rights arising out of past employment. The Committee requests the Government once again to provide information on any legislative or other measures taken or envisaged to ensure that the fundamental rights of migrant workers in an irregular situation are fully respected and how their rights deriving from previous employment, particularly as regards remuneration and social security, are protected. Please include information disaggregated by sex, nationality and sector of activity on the situation of migrant workers, whether in a regular or irregular situation, subject to abusive conditions of work, as well as information on the measures adopted in relation to the protection of migrant workers’ human rights by the National Commission on Human Rights.

Articles 2–7. Measures to detect and address irregular migration. The Committee notes the adoption of the Counter-Trafficking in Persons Act, 2010 that contains provisions for the prosecution of those responsible for trafficking and the protection of victims of trafficking, including their repatriation, immunity from prosecution, the possibility to remain in Kenya until legal proceedings are concluded and the eligibility to work for the duration of their necessary presence in Kenya. The law also provides that the Minister shall formulate plans for the provision of appropriate services for victims of trafficking. The Committee also notes that the Kenya Citizenship and Immigration Act 2011 considers “prohibited immigrants those persons engaged in trafficking in persons and human smuggling”, as well as those persons whose presence or entry into Kenya is unlawful. The Committee further notes that the Kenya Citizens and Foreign Nationals Management Service Act 2011 provides that the Service will be responsible for the implementation of policies, laws and any other matters related to citizenship and immigration. The Committee requests the Government to provide information on the following:

• (i) the practical implementation of the Counter-Trafficking in Persons Act, 2010 and the Kenya Citizenship and Immigration Act 2011 and their impact on the elimination of irregular migration;
• (ii) the policies and plans drafted by the Kenya Citizens and Foreign Nationals Management Service, or any other national entity, to combat trafficking in persons;
• (iii) any administrative, civil and penal sanctions applied in practice in the event of the unlawful employment of migrant workers, the organization of migration in abusive conditions and assistance provided wittingly to such migration; and
• (iv) how employers’ and workers’ organizations are being consulted with regard to the measures designed and implemented to prevent and eliminate irregular migration and abuse against migrant workers.

Article 8. The Committee notes that section 41(1)(b) of the Kenya Citizenship and Immigration Act 2011 provides that where a permit has been issued to a person and that person ceases to engage in the said employment, occupation, trade, business or profession, the permit shall cease to be valid and the presence of that person in Kenya shall be unlawful. In this regard, the Committee recalls that Article 8(1) of the Convention provides that “On condition that he has resided legally in the territory for the purpose of employment, the migrant worker shall not be regarded as in an illegal or irregular situation by the mere fact of the loss of his employment, which shall not in itself imply the withdrawal of his authorisation of residence or, as the case may be, work permit”. In order to be able to determine to what extent section 41(1)(b) of the Kenya Citizenship and Immigration Act, 2011 is in conformity with Article 8(1) of the Convention, the Committee requests the Government to provide information on the practical application of this section, namely in which cases of termination of employment it is applied.

Articles 10 and 12. National policy on equality of opportunity and treatment. The Committee notes that section 46(6) of the Kenya Citizenship and Immigration Act 2011 provides that learning institutions shall, before admitting a person for purposes of training or instructions ensure that such person is not a foreign national who is unlawfully residing in the country. The Committee draws the Government’s attention to the fact that this type of measures may reinforce stereotypes and prejudices regarding the status of migrant workers and adversely affect measures designed to promote tolerance and mutual respect between the migrant population and nationals. The Committee requests the Government to provide information on the practical application of this provision.

Statistics on migration flows. The Committee notes that the Government refers to the difficulty faced in obtaining statistical information and indicates the readiness of the Government to receive technical assistance in this respect. The Committee hopes that the Government will soon be in a position, with the necessary ILO technical assistance, to provide relevant statistics regarding migration flows to and from Kenya, and asks the Government to continue to report on the progress made in this regard.

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes that the Government’s report contains no reply to its previous comments. It hopes that the next report will contain full information on the matters raised in its previous comments initially made in 2012.

Repetition

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 matters in a request addressed directly to the Government.

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

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

The Committee notes that following the process of law reform undertaken by Kenya a series of new laws have been adopted. The Committee notes in particular the adoption of the Employment Act, 2007, the Labour Institutions Act 2007, the Labour Relations Act, the Work Injuries Benefits Act and the Occupational Safety and Health Act. The Committee notes in this respect, the Government’s indication that migrant workers are covered by these new laws. The Committee further notes the adoption of the Kenya Citizenship and Immigration Act 2011 and the Kenya Citizens and Foreign Nationals Management Service Act 2011. Finally, the Committee notes the Kenya National Commission on Human Rights Act, 2011 and the National Gender and Equality Commission Act 2011. The Committee requests the Government to indicate if migrant workers, and which categories of them, are covered by all of these laws, and to provide information on the manner in which their provisions give effect to the Convention. Noting that the Government’s report contains no substantive information, the Committee requests the Government to provide information on all the aspects covered by the Convention and refers in this respect to the questions set out in the report form of the Convention.

Articles 1 and 9 of the Convention. Basic human rights of all migrant workers and rights arising out of past employment. The Committee requests the Government once again to provide information on any legislative or other measures taken or envisaged to ensure that the fundamental rights of migrant workers in an irregular situation are fully respected and how their rights deriving from previous employment, particularly as regards remuneration and social security, are protected. Please include information disaggregated by sex, nationality and sector of activity on the situation of migrant workers, whether in a regular or irregular situation, subject to abusive conditions of work, as well as information on the measures adopted in relation to the protection of migrant workers’ human rights by the National Commission on Human Rights.

Articles 2–7. Measures to detect and address irregular migration. The Committee notes the adoption of the Counter-Trafficking in Persons Act, 2010 that contains provisions for the prosecution of those responsible for trafficking and the protection of victims of trafficking, including their repatriation, immunity from prosecution, the possibility to remain in Kenya until legal proceedings are concluded and the eligibility to work for the duration of their necessary presence in Kenya. The law also provides that the Minister shall formulate plans for the provision of appropriate services for victims of trafficking. The Committee also notes that the Kenya Citizenship and Immigration Act 2011 considers “prohibited immigrants those persons engaged in trafficking in persons and human smuggling”, as well as those persons whose presence or entry into Kenya is unlawful. The Committee further notes that the Kenya Citizens and Foreign Nationals Management Service Act 2011 provides that the Service will be responsible for the implementation of policies, laws and any other matters related to citizenship and immigration. The Committee requests the Government to provide information on the following:

• (i) the practical implementation of the Counter-Trafficking in Persons Act, 2010 and the Kenya Citizenship and Immigration Act 2011 and their impact on the elimination of irregular migration;
• (ii) the policies and plans drafted by the Kenya Citizens and Foreign Nationals Management Service, or any other national entity, to combat trafficking in persons;
• (iii) any administrative, civil and penal sanctions applied in practice in the event of the unlawful employment of migrant workers, the organization of migration in abusive conditions and assistance provided wittingly to such migration; and
• (iv) how employers’ and workers’ organizations are being consulted with regard to the measures designed and implemented to prevent and eliminate irregular migration and abuse against migrant workers.

Article 8. The Committee notes that section 41(1)(b) of the Kenya Citizenship and Immigration Act 2011 provides that where a permit has been issued to a person and that person ceases to engage in the said employment, occupation, trade, business or profession, the permit shall cease to be valid and the presence of that person in Kenya shall be unlawful. In this regard, the Committee recalls that Article 8(1) of the Convention provides that “On condition that he has resided legally in the territory for the purpose of employment, the migrant worker shall not be regarded as in an illegal or irregular situation by the mere fact of the loss of his employment, which shall not in itself imply the withdrawal of his authorisation of residence or, as the case may be, work permit”. In order to be able to determine to what extent section 41(1)(b) of the Kenya Citizenship and Immigration Act, 2011 is in conformity with Article 8(1) of the Convention, the Committee requests the Government to provide information on the practical application of this section, namely in which cases of termination of employment it is applied.

Articles 10 and 12. National policy on equality of opportunity and treatment. The Committee notes that section 46(6) of the Kenya Citizenship and Immigration Act 2011 provides that learning institutions shall, before admitting a person for purposes of training or instructions ensure that such person is not a foreign national who is unlawfully residing in the country. The Committee draws the Government’s attention to the fact that this type of measures may reinforce stereotypes and prejudices regarding the status of migrant workers and adversely affect measures designed to promote tolerance and mutual respect between the migrant population and nationals. The Committee requests the Government to provide information on the practical application of this provision.

Statistics on migration flows. The Committee notes that the Government refers to the difficulty faced in obtaining statistical information and indicates the readiness of the Government to receive technical assistance in this respect. The Committee hopes that the Government will soon be in a position, with the necessary ILO technical assistance, to provide relevant statistics regarding migration flows to and from Kenya, and asks the Government to continue to report on the progress made in this regard.

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

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.

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

1. Article 1 of the Convention. The Committee takes note of the very brief report submitted by the Government which contains little information regarding the Committee’s previous request for information on the contents, implementation in practice of its law and policy, or application of the Convention. The Committee further notes that following the recent labour law reform, a number of bills have been passed by Parliament, such as the Work Injuries Benefits Bill, the Labour Relations Bill, the Employment Bill, the Labour Institutions Bill, and the Occupational Safety and Health Bill. The Committee once again refers the Government to the criteria established in the report form of the Convention and requests it to provide in its next report up to date information on the various aspects of the Convention. Such information should also specify whether and which migrant workers are covered by the newly adopted labour legislation such as the Employment Bill, the Labour Relations Bill and the Occupational Safety and Health Bill, with an indication of the relevant provisions applying the Convention.

2. Statistical information on immigration and emigration flows. The Committee notes the information provided by the Government that the number of Kenyan citizens abroad is estimated at 2 million. While skilled and professionals migrate to Europe and North America, unskilled middle-level managers and semi-skilled mostly migrate to the Middle East. Noting the Government’s statement that the statistical data on the numbers, nationality and geographical distribution by occupation of male and female migrant workers in Kenya will be sent in due course, the Committee hopes that this information will be included in the Government’s next report.

3. Articles 1 and 9 of the Convention. Human rights of all migrant workers and protective measures relating to rights arising out of past employment. In the absence of any further information on this point, the Committee reiterates its previous request to the Government to provide information on legislative and other measures taken or envisaged to ensure respect of the fundamental rights of migrant workers in an irregular situation and of their rights deriving from previous employment, particularly as regards remuneration and social security.

4. Articles 2–7. Measures to address irregular migration. The Committee recalls that Part I of the Convention aims at bringing migration flows under control with the aim of preventing and eliminating abuses against migrant workers, and requests ratifying States to take measures in this regard (see General Survey on migrant workers, 1999, paragraphs 96–98). The Committee notes from the Government’s report on the Migration for Employment Convention (Revised), 1949 (No. 97), that the draft Sessional Paper on employment policy and strategies for Kenya provides for the development of policies and legislation to combat human trafficking. The Committee asks the Government to provide information in its next report on any policies and legislation that have been adopted or envisaged to combat human trafficking as well as additional information, including statistics on administrative, civil and penal sanctions applied in practice in the event of the unlawful employment of migrant workers, the organization of migration in abusive conditions and assistance provided wittingly to such migration. Please also include information on the situation of documented as well as undocumented migrant workers subject to abusive conditions of work, as well as their number, sex, nationality and sector of activity, and indicate how employers’ and workers’ organizations are being consulted with regard to the measures designed and implemented to prevent and eliminate irregular migration and abuse against migrant workers.

5. Part II of the Convention (equality of opportunity and treatment). The Committee recalls that national policies must not only promote but also guarantee equality of opportunity and treatment in employment and occupation and with respect to social security, trade union and cultural rights, and individual and collective freedoms for migrant workers and members of their families lawfully within the territory of the country of employment. Additionally, equality of opportunity and treatment extends to conditions of work of migrant workers in respect of themselves regardless of their gender, and in respect of national workers (Article 12(g)). The Committee recalls that the Government has recognized in previous reports the need to take into consideration the provisions of Article 14(a) of the Convention which allows States which have ratified the Convention to make a free choice of employment of migrant workers subject to the conditions that they have resided lawfully in the country for the purpose of employment for a prescribed period not exceeding two years. The Committee notes the Government’s statement that in Kenya, there is no comprehensive policy on migration yet but that the draft employment policy has a component on equality of opportunity and treatment for migrant workers. The Committee requests the Government to supply a copy of the Employment Policy, once adopted, with an indication of the specific actions taken to pursue and implement a national policy on equality of opportunity and treatment for male and female migrant workers and members of their families lawfully in the country, in accordance with Articles 10 and 12(a)–(g) of the Convention.

Article 8. Non-return in the case of incapacity of work. The Committee notes that the Government’s report does not contain any information regarding the application of Article 8 of the Convention. Being one of the provisions cited most often by governments at the time of the General Survey as being difficult to apply (see General Survey, op. cit., paragraphs 577–597), the Committee reiterates its request to the Government to provide information on the application of the principle that the authorization of residence and/or work permit shall not systematically be withdrawn from a migrant worker in an irregular situation in the event of loss of his employment.

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

Articles 10, 12(d) and 14(a) of the Convention. National policy on equality of opportunity and treatment and free choice of employment. The Committee recalls its previous observation in which it raised concerns about the existence of a policy of “Kenyanization” of employment referred to by the Government. The Committee considered that such a policy was contrary to the principle established by the Convention of equality of opportunity and treatment between national and foreign workers provided that the latter are residing lawfully in the country of employment. The Committee notes the Government’s statement that the “Kenyanization” policy, which was initiated after independence in 1963 and aimed at correcting the existing racial imbalance in the various sectors of employment, was dissolved in 1981 after having achieved its objectives. The Committee is aware that Parliament passed a number of employment-related bills in October 2007, including the new Employment Act. The Committee recalls that according to Article 12(d) of the Convention, any provisions or administrative practices incompatible with the policy of equality of treatment and opportunity must be amended. The Committee hopes that the new employment legislation will reflect the principle of the Convention concerning equality of opportunity and treatment between migrant workers and nationals with respect to access to employment. It asks the Government to specify the legislative and policy measures that have been taken to bring its national policy and practice into conformity with the Convention and to ensure that migrant workers who are lawfully in the country enjoy equality of treatment with nationals regarding free choice of employment in accordance with Articles 10 and 14(a) of the Convention.

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

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

1.  The Committee notes the statistical information supplied by the Government but observes that it does not allow a distinction to be made, in the migration flows recorded, between labour migrants and persons visiting Kenya for tourism or on business, or leaving Kenya to work elsewhere or for other reasons. In its General Survey of 1999 on migrant workers, the Committee noted that the extent, direction and nature of international labour migration had undergone profound changes since the adoption of the Convention (see paragraphs 5-17 of the General Survey). It would be grateful if the Government would indicate how present trends in migration affect the content and implementation of its national emigration and immigration policy and legislation and to provide information on the questions contained in the report form of the Convention. Please also provide statistics of the number, nationality and geographical distribution by occupation of migrant workers in Kenya and the number of Kenyan nationals employed abroad.

2.  The Committee wishes to recall that according to Article 1 of the Convention, all migrant workers, whatever their position in law in the country of immigration, are entitled to have their fundamental rights respected. The Committee would therefore appreciate receiving information on the measures taken to ensure respect of the fundamental rights of migrant workers in an irregular situation and of their rights deriving from previous employment, particularly as regards remuneration and social security. It would also appreciate information, including statistics on administrative, civil and penal sanctions applied in practice in the event of the unlawful employment of migrant workers, the organization of migration in abusive conditions and assistance provided wittingly to such migration.

3.  Part II of the Convention (Equality of opportunity and treatment). Article 8, being one of the provisions cited most often by governments at the time of the General Survey as being difficult to apply (see paragraphs 577-597 of the General Survey), the Committee asks the Government to provide information on the application of the principle that the authorization of residence and/or work permit shall not systematically be withdrawn from a migrant worker in an irregular situation in the event of loss of his employment.

4.  The Committee again recalls that under Article 10 of the Convention, a national policy designed to promote and guarantee equality of opportunity and treatment for migrant workers and the members of their families lawfully residing in the territory of a State which has ratified the Convention, in respect of employment and occupation, social security, trade union and cultural rights and individual and collective freedoms, must be declared and pursued. According to Article 12(d), any provisions or administrative practices incompatible with the policy of equal treatment and opportunity must be amended.

5.  However, the Committee emphasizes that in its previous report the Government recognized the need to take into consideration the provisions of Article 14(a) of the Convention which allows States which have ratified the Convention to make free choice of employment for migrant workers subject to the condition that they have resided lawfully in the territory for the purpose of employment for a prescribed period not exceeding two years. The Committee hopes that the Government will review its national policy on migrant workers in the light of the provisions of Articles 10 and 12 of the Convention and that it will be able to indicate in the near future the measures taken or envisaged to bring national legislation and practice into line with the Convention.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

Article 10 of the Convention.  The Committee notes the Government’s statement that there are no laws, regulations or administrative instructions that provide for discrimination in employment between lawfully resident migrant workers and Kenyan nationals. It nonetheless recalls that in its previous report, the Government referred to a policy of "Kenyanization" of employment, which is contrary to the principle established by the Convention of equal opportunity and treatment between national and foreign workers provided that the latter are residing lawfully in the country of employment. It asks the Government to indicate whether this policy is still applied and would again draw its attention to Article 14(a) of the Convention under which ratifying States may make the free choice of employment of migrant workers subject to the condition that they have resided lawfully in the country for the purpose of employment for a prescribed period not exceeding two years.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the Government's statement that, in view of the very large influx of refugees into the country, combined with the serious unemployment problem, which also affects university graduates, the question of free choice of employment for migrant workers will have to depend on the discretion of the Government, in accordance with the declared localization policy. As a result, migrant workers, depending on their level of skills and experience, will normally not be allowed to take up jobs which could easily be done by nationals.

The Committee recalls once again that, under the terms of Article 10 of the Convention, 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 must be declared and pursued for migrant workers or members of their families who are lawfully within the territory of the State which has ratified the Convention. By virtue of Article 12(d), any administrative instructions or practices which are inconsistent with the policy of equality of opportunity and treatment set out above have to be modified.

However, the Committee notes that the Government recognizes in its latest report that it is now necessary to take into account Article 14(a) of the Convention, which permits States which have ratified the Convention to make the free choice of employment of migrant workers subject to the conditions that the migrant worker has resided lawfully in its territory for the purpose of employment for a prescribed period not exceeding two years. The Committee hopes that the Government will re-examine the national policy on migrant workers in the light of Articles 10 and 12 of the Convention and that it will be able to indicate in the near future the measures which have been taken or are envisaged to bring national law and practice into conformity with the Convention.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

In the comments it has made for a number of years, the Committee has drawn the Government's attention to the provisions of Article 14 (a) of the Convention which allows States that have ratified the Convention to make the free choice of employment subject to the condition that the migrant worker has resided lawfully in its territory for the purpose of employment for a prescribed period not exceeding two years. In its reports, the Government states that this question is not covered by specific legislation and each case is handled upon its own merits, i.e. depending on the country's policy of giving preference to a Kenyan over a migrant worker where both are equally qualified (the "Kenyanisation" policy).

In its last report, the Government states that the question of free choice of employment as far as migrant workers are concerned depends upon the discretion of the Government, in accordance with the "Kenyanisation" of jobs policy and as part of the effort to control unemployment, which is particularly prevalent among young university graduates. Migrant workers are not normally allowed to take up jobs which indigenous Kenyans can easily do. The Government indicates, however, its intention to make a careful study of present legislation vis-à-vis the Convention with a view to ensuring harmony between the two.

The Committee takes due note of this information. It recalls that Article 10 provides that a national policy designed to promote and guarantee equality of opportunity and treatment in respect of employment and occupation, of social security, of trade union and cultural rights and of individual and collective freedoms must be declared and pursued in respect of migrant workers and their families who are lawfully within the territory of a State which has ratified the Convention. Under Article 12 (d), statutory provisions or administrative practices that are incompatible with the above-mentioned policy of equality of opportunity and treatment must be modified. The Committee trusts that once the study referred to by the Government is completed, measures will be taken to bring national law and practice into line with the Convention on this point. It asks the Government to provide information on the measures adopted in this connection.

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

Article 14(a) of the Convention. For some years, the Committee has been drawing the Government's attention to the need to ensure in law and in practice the application of this provision, which authorises restrictions on the free choice of employment only during an initial period of residence not exceeding two years; at the end of that period migrant workers should have the free choice of employment. In its last report, the Government again indicates that the free choice of employment of migrant workers depends on the Government's discretion in the framework of its localisation policy. Since this approach to the free choice of employment of migrant workers is in conflict with the Convention, the Committee once again requests the Government to take appropriate measures to ensure that the legislation and national practice give full effect to the Convention on this point. It also requests the Government to report any progress accomplished in this respect.

Direct Request (CEACR) - adopted 1989, published 76th ILC session (1989)

Article 14(a) of the Convention. In reply to the Committee's previous direct request, the Government states that there is no specific legislation which covers the matter dealt with in this Article and each case is handled upon its own merit, depending on the country's Kenyanisation policy. The Government also states that the views expressed by the Committee on this subject have been carefully noted for future guidance. The Committee recalls that this Article of the Convention authorises restrictions on the free choice of employment only during an initial period of residence not exceeding two years, after which migrant workers should have the free choice of employment. It hopes that the Government will make the necessary changes to the national legislation (Regulation 11(2) of the Immigration Regulations) and practice, as they do not fully comply with the Convention, and that the next report will indicate the steps taken to this effect.