Texts of pending comments

The Committee notes 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.

Repetition

The Committee takes note of the observations of the International Trade Union Confederation (ITUC) received on 1 September 2017, referring to restrictions to collective bargaining processes in the health sector, as well as the observations of Education International and the Kenya National Union of Teachers, also received on 1 September 2017, alleging that the Salaries and Remuneration Commission (SRC) unduly interferes in negotiations in the education sector and that the Government does not comply with the law providing for the issuance of orders requiring the deduction of agency fees from non-unionized workers benefiting from a collective agreement. The Committee requests the Government to provide its comments in this respect.

Articles 1 and 3 of the Convention. Protection against anti-union discrimination. In its previous observation, the Committee requested the Government to indicate the average time period of proceedings in anti-union discrimination cases. The Committee notes that the Government states that the timeframe taken as a performance indicator for proceedings for the adjudication of anti-union discrimination cases by the courts is of 360 days, but that such target maximum duration is only met on 33 per cent of the cases. The Government notes that this inability to meet the 360-days target is due to a number of constraints, including the reliance on the action of the parties to move procedures, the absence of a statutory period set by law stipulating the duration within which the matters are to be determined and the fact that there are only 12 judges appointed to resolve the many cases filed in court. While taking note of the information provided by the Government on the duration of court proceedings, as well as the constraints faced, the Committee observes that in most cases the target duration set out by the Government is not met and considers that 360 days can be an excessively long duration for a procedure to ensure access to adequate remedies against acts of anti-union discrimination. Recalling once again the importance of effective and rapid procedures to ensure the application in practice of legal provisions prohibiting acts of anti-union discrimination, the Committee requests the Government to evaluate with the social partners the existing rules and procedures with a view to taking measures, including if necessary of a legislative nature, to improve the efficient handling of anti-union discrimination cases. The Committee requests the Government to provide information on the progress achieved in this respect and recalls that it may avail itself of the technical assistance of the Office.

Article 2. Protection against acts of interference. In its previous observation, the Committee welcomed the Government’s indication that its comments would be considered within the current review of the Labour Relations Act (LRA) 2007. The Committee notes that the Government does not provide any information in this regard. The Committee requests the Government to provide information on progress in the review of the LRA. The Committee expects that the Government will ensure the existence of legislative provisions expressly prohibiting acts of interference contemplated in Article 2 and allowing for rapid appeal procedures, coupled with effective and dissuasive sanctions against acts of interference. The Committee recalls that the Government may avail itself of the technical assistance of the Office in this regard.

Articles 4 and 6. Collective bargaining in the public sector. In its previous observation, the Committee requested the Government to provide information on the establishment of collective bargaining machinery in the public sector pursuant to section 61(1) of the LRA, as well as a copy of the Salaries and Remuneration Commission (Remuneration and Benefits of State and Public Officers) Regulations 2013, indicating if any category of state and public officers does not fall within the mandate of the Commission. The Committee notes that the Government provided a copy of the Regulations and states that all state and public officers are subject to the mandate of the said Commission regarding the determination of remuneration and benefits. The Committee observes that, in accordance with such Regulations, before the commencement of any collective bargaining process the Commission advises the management of a public service on the fiscal sustainability of the proposal of the union – and that when the collective bargaining process is successful the management needs to confirm with the Commission the fiscal sustainability of the negotiated package before the signing of the agreement. Recalling that the obligation to promote collective bargaining set out in the Convention is applicable to public servants who are not engaged in the administration of the State, the Committee requests the Government to provide information on any collective bargaining machinery established for the public sector pursuant to section 61(1) of the LRA, or through any other means.

Right to collective bargaining in practice. The Committee requests the Government to provide statistics on the number of collective agreements concluded, specifying the sectors of activity concerned and the number of workers covered.

Formulation of a national policy. Article 2 of the Convention. The Committee notes the information provided in the Government’s report regarding the activities of the National Industrial Training Authority (NITA). The Government indicates that the NITA collects, manages and distributes funds from the industrial training levy, whose main purpose is to support skilling, upskilling and reskilling of workers engaged in industry. It adds that the NITA makes payments from a fund for training and education-related purposes. The Committee notes that the NITA also grants paid study leave to its employees pursuant to the guidelines set out in the Human Resource Policies and Procedures Manual for the Public Service of May 2016 and Guidelines on Managing Training in the Public Service of June 2016. The Government refers to the NITA Human Resource Policy and Procedures Manual of 2015 as the main reference document which guides the award of paid study leave to its employees. The Committee notes that, according to the information provided by the Government, the paid educational leave provided by the NITA is provided for continuing education and training, including higher education. The Committee recalls that Article 2 of the Convention requires Members to formulate and apply a policy designed to promote … the granting of paid educational leave for the purpose of: (a) training at any level; (b) general, social and civic education; and (c) trade union education. Noting that the Government does not fully respond to the Committee’s previous comments, the Committee once again requests that the Government provide information regarding the measures taken to formulate, adopt and apply a national policy to promote paid educational leave for the purposes set out in Article 2 of the Convention, including for the purpose of civic and trade union education (Article 2(b) and (c). The Committee once again invites the Government to adopt measures to create the necessary conditions for formulating and applying a national policy to promote the granting of paid educational leave, in association with the employers’ and workers’ organizations and institutions or bodies providing education and training (Article 6).

The Committee notes with deep concern that the Government’s report has not been received. It expects that the next report will contain full information on the matters raised in its previous comments. The Committee informs the Government that, if it has not supplied replies to the points raised by 1 September 2022, then it may proceed with the examination of the application of the Convention on the basis of the information at its disposal at its next session.

Repetition

Article 1(1) of the Convention. Adoption and implementation of policies and programmes of vocational guidance and training. Close link with employment. The Committee notes the Government’s report received in September 2013 which includes information in reply to its 2009 direct request. The Government indicates that, under the Decent Work Country Programme, young women and men have acquired entrepreneurial skills as well as business start-up skills. The Committee understands that the development of a national integrated human resources development strategy, one of the flagship projects of the Kenya Vision 2030, consists of the development of a human resources strategy to align the supply and demand for human resources with the labour market. The Committee invites the Government to supply detailed information in its next report on the results achieved by the programmes and measures taken to promote skills. It also asks the Government to provide detailed information on the existing methods for developing comprehensive and coordinated policies and programmes of vocational guidance and vocational training indicating, in particular, the manner in which the National Labour Board, through the National Manpower Development Committee, contributes to the effective coordination of policies and programmes and the manner in which they are linked to employment and to public employment services.

Article 1(5). Equality of opportunity. The Committee takes note of the introduction by the National Gender and Equality Commission (NGEC) of a performance monitoring tool for the public sector, including the access to training opportunities. The NGEC is working with key members of the private sector, in order to determine how a similar tool could be adopted to ensure compliance with the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), in the private sector. Moreover, the Government’s report under the Paid Education Leave Convention, 1974 (No. 140), received in September 2013, refers to certain programmes currently in the course of implementation, namely the Youth Employment Facility initiative, the Cobblestone Work Project, and the Youth Employment for Sustainable Development (YESD). The Committee invites the Government to continue to provide information on the measures taken to encourage women to develop and use their professional abilities in all branches of economic activity and at all levels of skill and responsibility. Please also indicate the measures taken to promote access to education, training and lifelong learning for persons with specific needs, such as young persons and the other categories of vulnerable persons identified in Paragraph 5(h) of the Human Resources Development Recommendation, 2004 (No. 195).

Articles 2 and 3. Vocational guidance information. The Government indicates that national vocational training institutions advertise their programmes through the media and local dailies. The information provided includes information on the courses offered, the entry level, the duration or pattern of attendance, and cost implications. The Committee invites the Government to continue providing information on the measures which ensure that comprehensive information and the broadest possible guidance are available to all persons concerned and to indicate the measures specifically taken concerning persons with disabilities.

Employment and training opportunities in small and medium-sized enterprises (SMEs). In reply to previous comments, the Government reports the adoption of the Micro and Small Enterprises Act, 2012, which aims to provide a legal and institutional framework for the promotion, development and regulation of micro- and small enterprises (MSEs). The Committee notes with interest that the functions of the MSE Authority include: the promotion of the mainstreaming of the youth, gender and persons with disabilities in all MSE activities and programmes; the promotion of innovation and development of products; the formulation of capacity building programmes; the facilitation of technology development, acquisition and transfer; and the development of mechanisms, tools and programmes for the collection of comprehensive data, in collaboration with key stakeholders. The Committee also notes the creation of an MSE Fund, whose purposes include the financing of capacity building and research development, innovation and transfer of technology. The Committee invites the Government to continue providing information on the measures taken on employment and training opportunities in SMEs, particularly on the activities of the MSE Authority.

The Committee notes 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.

Repetition

Article 5 of the Convention. Effective tripartite consultations. In its 2015 direct request, the Committee requested the Government to report on the content and outcome of tripartite consultations on international labour standards held within the National Labour Board. The Government reports that the National Labour Board discussed an item related to international labour standards during its meetings in 2015, 2016, 2017 and 2018, indicating that the Board had made progress in its decisions. The Committee notes with interest that, in the context of the tripartite consultations, the Government expressed its readiness to ratify the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), given that the requirements of the Convention are already incorporated in national law, through the Labour Relations Act, 2007 as well as the Constitution of the Republic of Kenya, 2010. The Committee notes that the social partners were in general agreement that ratification of Convention No. 87 and the Labour Administration Convention, 1978 (No. 150) should be considered, but that this should go through the due process procedures required by the 2010 Constitution. The Committee notes the Government’s indication that the National Labour Board discussed the need to ratify the Domestic Workers Convention, 2011 (No. 189); however, they also expressed the need to give the constituents an understanding of the specific requirements of the instrument and the implications of ratification, to enable them to take a decision in this respect. Accordingly, the Board requested a comprehensive report justifying the ratification of Convention No. 189 and indicating its implications for the country. The Board also requested the Government to carry out public education and a national dialogue in this regard, through a National Tripartite Conference. The Committee requests the Government to continue to provide updated detailed information the content and outcome of tripartite consultations held on all matters concerning international labour standards covered by the Convention, particularly with regard to submission to the competent authorities of Conventions and Recommendations (Article 5(1)(b)), the re-examination of unratified Conventions and of Recommendations to which effect has not yet been given (Article 5(1)(c)), and on reports on ratified Conventions (Article 5(1)(d)). In particular, the Committee requests the Government to provide information on developments with respect to the possible ratification of Conventions Nos 87, 150 and 189.

Impact of the COVID-19 pandemic. The Committee takes note of the observations of the International Transport Workers’ Federation (ITF) and the International Chamber of Shipping (ICS), received by the Office on 1 and 26 October 2020 and 4 October 2021, alleging that ratifying States have failed to comply with certain provisions of the Convention during the COVID-19 pandemic. Noting with deep concern the impact of the COVID-19 pandemic on the protection of seafarers’ rights as laid out in the Convention, the Committee refers to its general observation of 2020 and its comments on the General Report of 2021 on this issue.

The Committee notes 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.

The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). It notes that Kenya previously ratified four maritime Conventions, which were denounced following the entry into force of the Convention for Kenya. It further notes that Kenya has not submitted a declaration of acceptance of the amendments to the Code of the Convention adopted in 2014 by the International Labour Conference and is therefore not bound by these amendments. The Committee notes the efforts undertaken by the Government for the implementation of the Convention. Following a first review of the information and documents available, the Committee draws the Government’s attention to the following issues. If considered necessary, the Committee may come back to other matters at a later stage.

Article I. General questions on application. Implementing measures. The Committee notes the Government’s indication that draft Merchant Shipping (Maritime Labour) Regulations, 2014 are in preparation to complete the national measures giving effect to the Convention. In this respect, the Committee reminds the Government that it may avail itself of the technical assistance of the Office and requests the Government to provide a copy of all relevant new legislation or other regulatory instruments implementing the Convention once they are adopted.

Article II, paragraph 1(f). Scope of application. Seafarer. The Committee notes that section 2, Part I, of the Merchant Shipping Act, concerning interpretation, indicates that seafarer includes every person employed or engaged in any capacity on board a ship save the case of master, pilot or apprentice duly contracted or indentured or registered. Masters. The Committee recalls that, in accordance with Article II, paragraph 1(f), the term “seafarer” means any person who is employed or engaged or works in any capacity on board a ship to which the Convention applies. While pilots can be excluded from this definition, masters should be covered by the Convention. The Committee requests the Government to provide information on any measures adopted to amend the legislation in order to give full effect to this provision of the Convention.

Cadets. The Committee notes that section 2, Part I of the Merchant Shipping Act excludes apprentices from the definition of seafarers. Recalling the definition of seafarers mentioned above, the Committee considers that obtaining on-board training for the purpose of becoming a seafarer by definition implies working on board and, as a result, no question of doubt can arise concerning the fact that cadets are to be regarded as seafarers for the purpose of the Convention. The Committee underlines that the protection afforded by the Convention is particularly important for the more vulnerable categories of persons, such as cadets. The Committee therefore requests the Government to adopt the necessary measures in order to ensure that cadets and apprentices are regarded as seafarers and that they enjoy the protection provided for by the Convention. The Committee is certainly aware of the reported and anticipated shortage of qualified officers to effectively man and operate ships engaged in international trade and the difficulties encountered to ensure that cadets meet the minimum mandatory seagoing service which forms part of the requirements prescribed in the Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW) for certification. In these circumstances, the Committee recalls that, as foreseen in Article VI, paragraph 3, of the Convention, Governments, in consultation with social partners, could agree on substantial equivalent measures applicable to cadets where needed, in accordance with the Convention.

Article II, paragraphs 1(i), 5 and 6. Scope of application. Ship. The Committee notes that section 2(1), Part I, of the Merchant Shipping Act indicates that sailing vessels do not include pleasure vessels, but does not provide a description of the latter. The Committee further notes that section 165(3) of the Merchant Shipping Act empowers the minister to exempt any ship from any requirements of the regulations and the Director-General to grant other exemptions from any such requirements with respect to any ship. The Committee recalls that Article II, paragraph 6, of the MLC, 2006, provides that “where the competent authority determines that it would not be reasonable or practicable at the present time to apply certain details of the Code referred to in Article VI, paragraph 1, to a ship or particular categories of ships flying the flag of the Member, … such a determination may only be made in consultation with the shipowners’ and seafarers’ organizations concerned and may only be made with respect to ships of less than 200 gross tonnage not engaged in international voyages”. The Committee requests the Government to indicate what provisions have been made to ensure that all ships ordinarily engaged in commercial activities are covered by the Convention. The Committee also requests the Government to provide information on any decisions taken under section 165(3) of the Merchant Shipping Act and to specify whether any determinations were made after consultation with shipowners’ and seafarers’ organizations with respect to the application of the Convention to all categories of ships.

Regulation 1.1 and Standard A1.1. Minimum age. The Committee notes that section 56 of the Employment Act prohibits employment of children between 13 and 16 years of age, but subject to exceptions. The Committee further notes that under section 12 of the Employment (General) Rules, 2014, on employment of a child below 16 years “(1) No person shall employ a child who has not attained the age of sixteen years without the prior written permission of an authorized officer.” It also notes that, according to section 53 of the Employment Act, the employment of seafarers under 18 years of age seems not to be expressly prohibited where the work is likely to jeopardize their health or safety. The Committee recalls, in this respect, that Regulation 1.1 prohibits the employment, engagement or work of seafarers under the age of 16 years, and Standard A1.1, paragraph 4, prohibits the employment of seafarers under the age of 18 years in hazardous work, without exception. The Committee requests the Government to clarify how the national legislation gives effect to the absolute prohibitions provided for in the Convention. As regards the elaboration of the list of hazardous work, pursuant to Standard A1.1, paragraph 4, the types of work to be considered hazardous shall be determined by national laws or regulations or by the competent authority, after consultation with the shipowners’ and seafarers’ organizations concerned. The Committee requests the Government to indicate the measures taken to adopt the list of such types of work after consultation with shipowners’ and seafarers’ organizations.

Regulation 1.4 and the Code. Recruitment and placement. The Committee notes the Government’s indication that there are no public or private recruitment and placement services operating in its territory. The Committee also notes the Government’s indication that there are around 300 seafarers who are nationals or residents or otherwise domiciled in the country. The Committee requests the Government to provide information on the manner in which those seafarers have been recruited. The Committee notes that the Government has not provided information on the measures adopted or envisaged with regard to the use of recruitment and placement services that operate in countries that have not ratified the Convention, by shipowners of ships flying the Kenyan flag. The Committee therefore requests the Government to indicate how it gives effect to Standard A1.4, paragraphs 9 and 10.

Regulation 2.1 and the Code. Seafarers’ employment agreements. The Committee notes that sections 119 and 122 of Merchant Shipping Act lay down that a crew agreement has to be drawn in a prescribed form, including a number of particulars, and that the Registrar of Seafarers shall cause the agreement to be read over and explained to each seafarer or otherwise ascertain that each seafarer understands the agreement before signing it. The Committee also notes that the crew agreement has to be signed in triplicate by the master and the seafarer, and a copy sent to the shipowner, the Registrar and the master. The Committee recalls that under Standard A2.1, paragraph 1(a), each Member shall adopt laws or regulations requiring that all seafarers working on ships that fly its flag covered by the Convention have a seafarers’ employment agreement (SEA) signed by both the seafarer and the shipowner or a representative of the shipowner; and that under Standard A2.1, paragraph 1(b), seafarers shall be given an opportunity to examine and seek advice on the agreement before signing, as well other facilities necessary to ensure that they enter into the agreement on a free and informed manner. The Committee requests the Government to provide information on whether according to national law it is considered that the master is the legal representative of the shipowner and if it is not, to indicate the measures taken to ensure that the SEA is signed by the shipowner or a representative. It further requests the Government to indicate how the national legislation gives full effect to Standard A2.1, paragraph 1(b), of the Convention. The Committee also requests the Government to take the necessary measures to ensure that the seafarer concerned has a signed original of the SEA in accordance with Standard A2.1, paragraph 1(c), of the Convention. The Committee also requests the Government to provide information on how sections 123 and 125 of the Merchant Shipping Act give effect to the requirements set up in Standard A2.1, paragraph 1(d), (information on conditions of employment easily obtained on board) and (e) (record of employment), of the Convention. With regard to minimum notice periods, the Committee notes that neither the Merchant Shipping Act nor the Employment Law give effect to the detailed requirements of Standard A2.1, paragraphs 5 and 6, of the Convention. The Committee therefore requests the Government to take the necessary measures to ensure the full conformity of the national legislation with Standard A2.1, paragraphs 5 and 6 of the Convention.

Regulation 2.2 and the Code. Wages. The Committee notes, in relation to wages, that while section 136 of the Merchant Shipping Act requires the master to pay wages to seafarers, it does not indicate that the payments should be made at no greater than monthly intervals and in accordance with any applicable collective agreement, as required by Standard A2.2, paragraph 2. The Committee further notes that while section 119(3) of the Merchant Shipping Act recognizes seafarers’ rights to allot wages, there is no provision ensuring that any charge for the service of allotments shall be reasonable in amount (Standard A2.2, paragraph 4). The Committee requests the Government to indicate the measures taken to give full effect to these provisions of the Convention.

Regulation 2.3 and the Code. Hours of work and hours of rest. The Committee notes that the Government has adopted a system of hours of rest. The Committee observes that the national legislation does not indicate the normal working hours standard for seafarers, nor does it include measures that have been adopted for seafarers under the age of 18. Recalling the principle of eight-hours per day with one day of rest per week and rest on public holidays, the Committee requests the Government to adopt the necessary measures in the near future to ensure the conformity of its legislation with the requirements provided in Standard A2.3, paragraph 3, and Standard A1.1, paragraph 2, of the Convention. Furthermore, the Committee recalls the requirements of Standard A1.1, paragraph 2, which prohibits night work of seafarers under the age of 18. The Committee further requests the Government to explain how the guidance provided in Guideline B2.3.1 will be given due consideration in the national measures adopted in the future.

Regulation 2.4 and the Code. Entitlement to leave. The Committee notes that the Merchant Shipping Act does not require shipowners to give seafarers appropriate shore leave. It also notes that national legislation does not seem to prohibit agreements to forgo the minimum annual leave with pay. Recalling that any agreement to forgo the minimum annual leave with pay is prohibited under paragraph 3 of Standard A2.4, the Committee requests the Government to indicate the measures taken to give effect to Regulation 2.4, paragraph 2, and Standard A2.4, paragraph 3, of the Convention.

Regulation 2.5 and the Code. Repatriation. The Committee notes that section 194 (1) of the Merchant Shipping Act stipulates the circumstances in which a seafarer has a right to repatriation. The Committee notes however that this provision does not include all the cases foreseen in the Convention. The Committee further notes that the maximum period of service on board following which a seafarer is entitled to repatriation has not been established in the legislation. The Committee therefore requests the Government to indicate the measures taken to give full effect Standard A2.5.1, paragraphs 1 and 2 of the Convention. The Committee notes that sections 195 and 196 of the Merchant Shipping Act contain provisions specifying the circumstances in which a seafarer can be expected to pay for the cost of his or her repatriation (Standard A2.5.1, paragraph 3). The Committee notes that section 196 provides that a seafarer may recover expenses incurred in respect of repatriation from the employer unless the employer proves either that, under the terms of his or her employment, they are to be borne by the seafarer, or that the seafarer would not have been left behind but for his or her own wrongful act or neglect. Recalling that Standard A2.5.1, paragraph 3, of the Convention prohibits shipowners from requiring that seafarers make an advance payment towards the cost of repatriation at the beginning of their employment, and also from recovering the cost of repatriation from their wages except where the seafarer has been found to be in serious default of seafarer’s employment obligation, in accordance with national laws, regulations or other measures or applicable collective bargaining agreements, the Committee requests the Government to indicate the measures taken or envisaged to ensure full compliance with this provision of the Convention. The Committee further notes that section 194 of the Merchant Shipping Act lays down some entitlements to be accorded by shipowners for repatriation, but it does not include those relating to the destination of repatriation and the mode of transport in accordance with the provisions of Standard A2.5.1, paragraph 2(c), of the Convention. The Committee requests the Government to indicate how effect is given to this provision of the Convention. Finally, noting the absence of provisions requiring ships to provide financial security to ensure that seafarers are dully repatriated in accordance with the Convention, the Committee requests the Government to indicate the measures adopted to ensure the conformity with Regulation 2.5, paragraph 2 of the Convention.

Regulation 2.7 and Standard A2.7, paragraph 3. Manning levels. The Committee notes that under section 166 of the Maritime Shipping Act three or more seafarers can complain to the master if they consider the provisions or water on board not in accordance with safety regulations under that Act, who shall investigate the complaint. The Committee further notes that the Government did not provide information on how, when determining manning levels, the competent authority takes into account the requirements set out in Regulation 3.2 and Standard A3.2 with respect to food and catering. The Committee requests the Government to indicate how effect is given to Standard A2.7, paragraph 3 of the Convention.

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee notes the Government’s indication that the draft Merchant Shipping (Maritime Labour) Regulations, 2014 will give effect to Regulation 3.1 and the Code and that, pending the adoption of those Regulations, the requirements of the Convention are directly being followed regarding crew accommodation. The Committee notes that the provisions of the Merchant Shipping Act are of a general nature and not cover all the requirements of Regulation 3.1 of the Convention. The Committee requests the Government to provide detailed information on the progress made in the adoption of the draft Regulations and indicate any other measure taken to give effect to the requirements of Regulation 3.1 and Standard A3.1. The Committee notes that the Merchant Shipping (Small Vessel Safety) Regulations, 2012 deals with ship construction and section 14 of the First Schedule provides for exemptions on crew accommodation on matters which go beyond those included in Standard A3.1, paragraphs 7(b), 11(b) and 13, and paragraph 9(f) and (h)–(l), inclusive, with respect to floor area only (Standard A3.1, paragraph 20). The Committee recalls that any exemptions with respect to the requirement of Standard A3.1 may be made only where they are expressly permitted and only for particular circumstances (Standard A3.1, paragraph 21), after consultation with the shipowners’ and seafarers’ organizations concerned (Standard A3.1, paragraph 20). The Committee requests the Government to indicate the measures taken to review the Maritime Shipping (Small Vessel Safety) Regulations, 2012, in order to ensure that exemptions from the requirements regarding accommodation and recreational facilities are only permitted in accordance to and in full compliance with Standard A3.1.

Regulation 3.2 and the Code. Food and catering. The Committee notes that the Merchant Shipping Act and the legislative texts in force provided by the Government do not give effect to all of the requirements of Regulation 3.2 and the respective provisions of the Code. The Committee notes the Government’s reference to the draft Regulations that will give effect to the provisions related to food and catering. The Committee requests the Government to indicate the measures adopted to give effect to the provisions of the Convention, and to ensure that: (i) ships that fly its flag meet the minimum standards with respect to food and drink supplies, having regard to the duration and nature of the voyage (Standard A3.2, paragraph 2(a)); (ii) all ships operating with a prescribed manning of more than ten carry a fully qualified cook (Standard A3.2, paragraph 5); (iii) in circumstances of exceptional necessity, the limitation of a dispensation permitting a non-fully qualified cook to service in a specified ship only until the next convenient port of call or for a period not exceeding one month (Standard A3.2, paragraph 6); and (iv) documented inspections are carried out in scheduled frequency, in accordance with the ongoing compliance procedure under Title 5 (Standard A3.2, paragraph 7).

Regulation 4.1 and the Code. Medical care on board ship and ashore. The Committee notes that sections 117 and 167 of the Merchant Shipping Act contain some rules respecting medical care on board ship and ashore. The Committee notes that section 6 of the Merchant Shipping (Occupational Safety) Regulations provides that a portable first aid kit have to be carried on board Kenyan ships employing more than five seafarers in the event medicine and medical appliances are not easily available. In the absence of more detailed provisions, the Committee requests the Government to ensure that the national legislation gives full effect to the requirements of Regulation 4.1 and Standard A4.1, in particular seafarers’ access to prompt and adequate medical care while working on board, provided free of charge, as comparable as possible to that available for workers ashore and right to visit a qualified medical doctor or dentist without delay in ports of call, where practicable. The Committee also notes that the Kenya Maritime Authority has issued an International Medical Guide for Ships. The Committee requests the Government to provide detailed information on the measures adopted or envisaged to conform to the provisions of Standard A.4.1, paragraph 4(a), of the Convention (obligation to carry a medicine chest, medical equipment and a medical guide). The Committee notes the Government’s indications on the operation of a system of satellite or radio communication in order to provide medical advice, as available. The Committee requests the Government to provide information on the legislation that establishes this system and the measures taken to provide the services free of charge in accordance with Standard A4.1, paragraph 4(d), of the Convention.

Regulation 4.2 and the Code. Shipowners’ liability. The Committee notes the Government’s reference to section 167 of the Maritime Shipping Act, which provides for medical and other expenses during voyage: (1) Where a person, while employed in a Kenyan ship, receives outside Kenya any surgical or medical treatment or such dental or optical treatment, including the repair or replacement of any appliance, as cannot be postponed without impairing efficiency, the reasonable expenses thereof shall be borne by the persons employing him. (2) Where a person dies while employed in a Kenyan ship and is buried or cremated outside Kenya, the expenses of his burial or cremation shall be borne by persons employing him.” The Committee further notes that the Government has provided one example of financial security in the event of sickness, injury or death of seafarers. However, in the absence of more detailed statutory provisions, the Committee requests the Government to indicate the measures taken or envisaged to give effect to the requirements of Regulation 4.2 and the Code (shipowner liability, including financial security, in respect of sickness and injury of the seafarers occurring between the date of commencing duty and the date upon which they are deemed duly repatriated, or arising from their employment between those dates).

Regulation 4.4 and the Code. Access to shore-based welfare facilities. The Committee notes the Government’s indication that there is only one shore-based welfare facility in its territory. The Committee requests the Government to provide information on the evaluation of needs for seafarers’ welfare facilities in ports in Kenya, in accordance with the requirement of Standard A4.4, paragraphs 2 and 3 of the Convention. In particular, it requests the Government to indicate whether the possibility of establishing a welfare board has been envisaged with a view to ensuring that welfare facilities and services are appropriate for the needs of seafarers.

Regulation 4.5 and the Code. Social security. The Committee notes that, upon ratification, in accordance with Standard A4.5, paragraphs 2 and 10, the Government specified the following branches of social security as being provided to seafarers ordinarily resident in Kenya: medical care, sickness benefit, old-age benefit, employment injury benefit, and maternity benefit. In this regard, the Committee notes that the National Social Security Fund, National Hospital Insurance Fund, Health Act and WIBA are relevant, and provide the invalidity benefit and the survivors’ benefit in addition to the abovementioned branches. Recalling that Standard A4.5, paragraph 3, requires a member to undertake steps according to its national circumstances to provide the complementary social security protection referred to in paragraph 1 of this Standard to all seafarers ordinarily resident in its territory, including those working on ships operating under the flag of another country, the Committee requests the Government to provide detailed information on the national measures adopted or envisaged to give full effect to the provisions of the Convention. The Committee also requests the Government to indicate any bilateral or multilateral arrangements in which Kenya participates in relation to social security protection, including the maintenance of rights acquired or in the course of acquisition (Regulation 4.5, paragraph 2 and Standard A4.5, paragraphs 3, 4 and 8).

Regulation 5.1 and the Code. Flag State responsibilities. The Committee notes that the Merchant Shipping Act and the other national measures in force provided by the Government do not give effect to the detailed requirements of Regulation 5.1. Noting the Government’s indications that the draft Regulations will give effect to Regulation 5.1, the Committee requests the Government provide information on the adoption of the draft Regulations and any other measures adopted to give effect to these requirements of the Convention.

Regulation 5.1.2 and the Code. Flag State responsibilities. Authorization of recognized organizations. The Committee notes the Government’s reference to the International Maritime Organization Code on Recognized Organizations. It also notes an agreement concluded with one recognized organization provided by the Government which, however, does not contain a reference to the MLC, 2006. The Committee draws the Government’s attention to the lack of legislation establishing a system to ensure the adequacy of work performed by recognized organizations, and procedures for communication with and oversight of such organizations. The Committee requests the Government to provide detailed information on the national measures adopted to give effect to Regulation 5.1.2 and Standard A5.1.2, including an example of an agreement with a classification society relevant for the MLC, 2006. The Committee requests the Government to provide a current list of recognized organizations, specifying the functions that they have been authorized to carry out (Standard A5.1.2, paragraph 4).

Regulation 5.1.3 and the Code. Flag State responsibilities. Declaration of Maritime Labour Compliance. The Committee notes the Government’s indication that it has conducted one MLC, 2006 inspection and so far has not issued maritime labour certificates. The Committee notes that the Government has provided a draft of Maritime Labour Certificate, a copy of two samples DMLC, Part I and an example of DMLC, Part II. The Committee recalls that Standard A5.1.3, paragraph 10(a), provides that the DMLC, Part I, drawn up by the competent authority shall not only “identify the national requirements embodying the relevant provisions of this Convention by providing a reference to the relevant national legal provisions” but also provide, “to the extent necessary, concise information on the main content of the national requirements”. The Committee also recalls that Guideline B5.1.3, paragraph 1, provides guidance with respect to the statement of national requirements including recommending that “where national legislation precisely follows the requirement stated in this Convention, a reference may be all that is necessary”. However, in many cases a reference will not provide enough information on national requirements where they relate to matters for which the Convention envisages some differences in national practices. The Committee requests the Government to indicate the measures taken or envisaged to amend its DMLC in order to give full effect to this provision of the Convention.

Regulation 5.1.4 and the Code. Flag State responsibilities. Inspection and enforcement. The Committee notes that sections 409 et seq. of the Maritime Shipping Act provide that inspections shall be carried out to conform with registration and maritime safety, but not to maritime labour, requirements by surveyors of ships and inspectors that are appointed by the Director-General of the Kenya Maritime Authority “as he deems fit”. The Committee also notes that this discretionary basis for appointment might be in contradiction with the Government’s indication that inspectors are permanent and pensionable employees and therefore independent of changes of government and of improper external influences. The Committee also notes the Flag State Maritime Labour Survey Form and the Guidelines for On-Board Complaint Procedures for Kenyan Ships. The Committee requests the Government to provide detailed information on the national measures adopted to give effect to Regulation 5.1.4 and Standard A5.1.4, in particular measures taken to ensure: (i) the inspectors’ training, competence, terms of reference, guidelines, powers, status and independence necessary or desirable to perform inspections effectively (Standard A5.1.4, paragraphs 3, 6, 11(a) and 17); (ii) the intervals at which inspections have to be carried out (Standard A5.1.4, paragraph 4); (iii) the procedures for receiving and investigating complaints (Standard A5.1.4, paragraphs 5, 10, 11(b) and 12); and (iv) and the penalties to be imposed in case of deficiencies under the Convention (Standard A5.1.4, paragraph 7(c)).

Regulation 5.1.6 and the Code. Flag State responsibilities. Marine casualties. The Committee notes that section 425 of the Maritime Shipping Act provides that the report of the inquiry shall make available to the seafarer’s next of kin and “in any case, to any person requesting it who appears to the Director General to be interested.” The Committee recalls that, in accordance with Regulation 5.1.6, an official inquiry into any serious casualty shall be held in all cases and that the final report of the inquiry shall normally made public. The Committee requests the Government to indicate the measures taken or envisaged to give effect to this provision of the Convention.

Regulation 5.2.1 and the Code. Port State responsibilities. Inspections in port. The Committee notes that Kenya participates in the Indian Ocean Memorandum of Understanding (MOU) on Port State Control. The Committee notes that, while section 2 of the Indian Ocean MOU refers to the MLC, 2006, it has not been amended to include the requirements set out in the MLC, 2006, among those that are to be inspected in port. The Committee requests the Government to provide information concerning a possible revision of the Indian Ocean MOU in order to fulfil the requirements of the Convention.

Regulation 5.2.2 and the Code. Port State responsibilities. Onshore seafarer complaint-handling procedures. The Committee notes that the Government indicates that measures are yet to be adopted to implement this Regulation and notes that the Government has provided copy of an on-shore complaint form. The Committee therefore requests the Government to indicate the measures taken to give effect to the detailed requirements of Regulation 5.2.2 and Standard A5.2.2.

Legislative reform. Further to its previous comments, in which it took note of the ongoing process of amendment of the Work Injury Benefits Act, 2007 (WIBA, 2007) and development of a new legislation that would address current gaps, the Committee notes the indication provided by the Government in its report that a Bill is now before the National Treasury to seek concurrence on the financial implications if enacted. The Committee further notes with interest that the Government has initiated a process to develop the Occupational Diseases Fund established by the Bill into a social insurance-based employment injury scheme, and that the first high-level Social dialogue meeting to address this matter was held on 23 September 2020. The Committee expects that these legislative developments will give full effect to the Convention and that its comments will be duly taken into account for this purpose. The Committee requests the Government to keep it informed of the adoption of the bill and of the establishment of the Occupational Diseases Fund, and of the adoption of any other measures related to their implementation.

Article 5 of the Convention. Payment of compensation for permanent incapacity or death in the form of periodical payments. In its previous comments, the Committee noted that, in accordance with section 30 of the WIBA, 2007, an employee who suffered permanent disablement was entitled to a lump-sum payment equivalent to 96 months’ earnings. It invited the Government to review the WIBA, 2007, so as to compensate victims of occupational accidents suffering permanent incapacity, or their dependants in cases of fatal accidents, with periodical payments and to limit compensation by way of lump sum to cases where the competent authority was satisfied that it would be properly utilized. The Committee notes the indication provided by the Government that the new social insurance-based employment injury scheme “will introduce periodical payments for victims of occupational accidents suffering permanent incapacity or survivors of victims of occupational fatalities”, and that in cases of payment of a lump sum, the Government agency under which the scheme will be administered will ensure that compensation will be paid on assurance that the lump sum will be properly utilized. The Committee hopes that the Government will take the necessary measures to ensure that permanently injured workers or their dependents, as the case may be, are provided with compensation in the form of periodical payments, in accordance with Article 5 of the Convention, under the new employment injury insurance scheme. The Committee also hopes that, in cases where compensation is paid in the form of a lump sum, the Government will put in place the necessary safeguards to ensure that it is properly used by beneficiaries. The Committee requests the Government to provide information on the measures taken for these purposes upon adoption of the new employment injury insurance scheme.

Articles 9 and 10. Provision of medical, surgical and pharmaceutical aid free of charge. In its previous comments, the Committee noted that section 47 of the WIBA, 2007, provides that an employer must defray reasonably incurred medical expenses which occurred after an occupational accident. The Committee further noted the indication by the Government that the term “reasonable expenses” would be defined at the occasion of the review of the WIBA, 2007, so as to include all medical intervention necessary and welcomed the Government’s indication that Clause 55 of the Bill would contain a list of the expenses incurred by an employee as the result of an accident arising out of, and in the course of, the employee’s employment to be defrayed by the employer. The Committee hopes that the Government will take the necessary measures, without further delay, to ensure that injured workers are provided, free of charge, with all the medical, surgical and pharmaceutical aid as well as with the artificial limbs and surgical appliances that are recognized to be necessary in consequence of accidents at work, without limitation of cost, with a view to give full effect to Articles 9 and 10 of the Convention. The Committee requests the Government to provide information on the legislative provisions and other measures adopted or envisaged for that purpose.

Article 11. Compensation of industrial accidents in the event of the insolvency of the employer or insurer. In its previous comments, the Committee noted that the WIBA, 2007, did not provide the necessary arrangements to ensure in all circumstances, in the event of the insolvency of the employer or insurer, the payment of compensation to workers who suffer personal injury due to industrial accidents, as required by Article 11 of the Convention. The Committee hopes that the Government will take advantage of the ongoing legislative reform to address this issue and requests the Government to provide information on the measures taken or envisaged to ensure that victims of occupational accidents and their dependents are provided with the compensation they are entitled to in all circumstances, in line with Article 11 of the Convention.

The Committee has been informed that, based on the recommendations of the Standards Review Mechanism Tripartite Working Group (SRM Tripartite Working Group), the Governing Body has decided that member States for which the Convention is in force should be encouraged to ratify the more recent Employment Injury Benefits Convention, 1964 [Schedule I amended in 1980] (No. 121), or the Social Security (Minimum Standards) Convention, 1952 (No. 102), and accept its Part VI (see GB.328/LILS/2/1). Conventions Nos 121 and 102 reflect the more modern approach to employment injury benefits. The Committee therefore encourages the Government to follow up the Governing Body’s decision at its 328th Session (October–November 2016) approving the recommendations of the SRM Tripartite Working Group and to consider ratifying Convention No. 121 or Convention No. 102 (Part VI) as the most up-to-date instruments in this subject area, taking opportunity of the ongoing legislative review and of the establishment of an employment injury insurance scheme.

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).

Articles 1 and 2 of the Convention. Legislation. Scope of application. The Committee previously asked the Government to provide information on how it ensures the application of the principle of equal remuneration for men and women for work of equal value to workers excluded from the scope of the Employment Act, 2007, namely members of the armed and police forces, the prison service and the National Youth Service (NYS), and dependants in family undertakings. In its report, the Government indicates that the Salaries and Remuneration Commission (SRC) sets and reviews the remuneration and benefits of public officials and that the Salaries and Remuneration Commission Act, 2011, requires the SRC to be guided by the principle of equal remuneration for work of equal value. While noting the information provided regarding the application of the principle of equal remuneration for work of equal value to public officials, the Committee requests the Government to also provide information on the application of the principle of the Convention to dependants in family undertakings and on the manner in which the SRC ensures the application of the principle so as to avoid gender bias and discrimination based on sex.

Articles 2 and 3. Determination of minimum wages and objective job evaluation. In its previous comment, the Committee requested the Government to provide information on: (1) the status of the National Wages and Remuneration Policy; (2) the outcome of the job evaluation exercise conducted by the SRC in the public sector; and (3) the results of the review of the Kenya National Occupational Classification Standards (KNOCS). In this regard, the Committee notes the Government’s indication that: (1) an inter-agency committee, in which the social partners participate, has been established to spearhead the development of the National Wages and Remuneration Policy and that a draft report has already been shared for consultation; and (2) the SRC evaluated 52,047 jobs divided into five broad skill levels that resulted in a job grading system based on the values of the jobs and an equitable pay structure in the public sector. The Committee notes that the Government does not provide information on the review of the KNOCS for the private sector. In this regard, it observes that wages councils make recommendations to the Minister on the minimum wage levels to be set (section 44 of the Labour Institutions Act, 2007). The Committee requests the Government to provide information on: (i) the status of the National Wages and Remuneration Policy; and (ii) how it is ensured that the criteria followed by wage councils in their deliberations and recommendations are free from gender bias.

Collective agreements. The Committee previously noted that the collective agreements communicated by the Government did not refer explicitly to the principle of the Convention and encouraged the Government to take steps, in cooperation with the social partners, to ensure that the provisions of collective agreements comply with the principle of the Convention. The Committee notes that the Government has not provided information on this subject in its report. The Committee asks the Government to provide information on any steps taken, in cooperation with the social partners, to ensure that the provisions of collective agreements observe the principle of equal remuneration for men and women for work of equal value.

Article 4. Cooperation with workers’ and employers’ organizations. National Labour Board. In its previous comments, the Committee asked the Government to provide information on the activities of the National Labour Board to promote equal remuneration for men and women for work of equal value. Noting that the Government has not provided such information, the Committee reiterates its request in this regard.

Awareness raising and enforcement. Further to its previous request to provide information on the training activities for the labour inspectorate, the Committee takes note of the information provided by the Government that in the two previous years 23 women labour inspectors and 37 men labour inspectors were trained by the African Regional Labour Centre of the ILO on the application of the principle of equal remuneration.

Statistics. In its previous comment, the Committee requested the Government to collect data on the respective levels of remuneration of men and women and to provide information on the measures taken for this purpose. While noting that the Government’s report does not include the information, the Committee observes that, according to the 2019 National Policy on Gender and Development: (1) one of the policy actions is the establishment of a database on employment records of women and men in the formal and informal sectors to evaluate and improve employment conditions for everyone, particularly women; and (2) the Kenya National Bureau of Statistics is responsible for the collection of national and county sex disaggregated data and gender statistics. The Committee therefore requests the Government to provide information on the data collected by the Kenya National Bureau of Statistics, or any another agency, on the respective levels of remuneration of men and women in the various sectors of the economy.

Articles 1 and 2 of the Convention. Legislation. Scope of application. In its last comment, the Committee requested the Government to indicate how it ensured the application of the principle of equality and non-discrimination to workers explicitly excluded from the scope of Employment Act, 2007 – namely members of the armed and police forces, the prison service and the National Youth Service (NYS), and dependants in a family undertaking. The Committee notes that the Government does not provide information in this regard in its report and observes that the Armed Forces Act, 1980, the National Police Service Act, 2011, the Prisons Act, 1977 and the National Youth Service Act, 2018 do not explicitly prohibit discrimination. Therefore, the Committee asks again the Government to specify the measures adopted to ensure that workers excluded from the scope of application of the Employment Act, 2007 are protected against discrimination in employment and occupation in practice. In follow up to its previous comments, the Committee also requests information on the implementation of the Gender Policy of the Ministry of Defense and on the activities of the National Gender and Equality Commission in relation to the protection of workers against discrimination in the armed and police forces, the prison service and the National Youth Service (NYS).

Article 2. Equality of opportunity and treatment of men and women. Statistics. In its last comment, the Committee requested the Government to provide statistics on the distribution of men and women in employment and occupation. While noting that the Government does not provide such information, the Committee observes that the 2019 National Policy on Gender and Development shows an increase in the proportion of women’s participation in wage employment in different sectors (agriculture, manufacturing, wholesale and financial sector). The Committee also notes that the same policy provides for the establishment of a database on employment records of women and men to evaluate and improve their employment conditions and for the collection of national and county sex disaggregated data and gender statistics by Kenya National Bureau of Statistics. The Committee requests the Government to provide information on the data collected by the Kenya National Bureau of Statistics on the distribution of men and women in employment and occupation.

National policies on gender equality. The Committee had previously requested the Government to provide information on the status and implementation of the national policies on gender equality. In this regard, the Committee takes note of the adoption of: (1) the 2019–2024 Strategic Plan of the National Gender and Equality Commission (NGEC); (2) the 2018–2022 Strategic Plan of the Ministry of Public Service, Youth and Gender Affairs; and (3) the 2019 National Policy on Gender Development. The Committee requests the Government to provide information on the implementation and the results of these policies.

Women’s self-employment, access to land, credit and other material goods and services. The Committee had requested the Government to inform on the steps taken to promote women’s self-employment, and their access to land, credit and other material goods and services needed to perform an occupation. The Committee notes that the Government refers to: (1) the establishment in 2007 of the Women’s Enterprise Fund (WEF) with the objective to give women entrepreneurs access to credit and support services; (2) the launch in 2012 of the National Affirmative Action Fund, sought to increase access to financial facilities and employment services; (3) the programme “Access to Government Procurement Opportunity” (AGPO) initiated in 2013 to facilitate marginalized groups to participate in government procurement; and (4) the Uwezo Fund established in 2014 to provide business mentorship opportunities and access to funds to set up businesses. The Committee further observes that one of the objectives of the 2019 National Policy on Gender Development is to harmonize land laws and secure land rights for women to enable their participation in and benefit from the agriculture. The Committee also notes that according to the 2019–2024 Strategic Plan of the NGEC, this commission will work closely with national government institutions and the county governments to promote equitable distribution of resources. The Committee requests the Government to provide information on the concrete results of these measures and policies, including statistical or qualitative data.

Addressing gender stereotypes. Recalling that it requested the Government to provide information in this regard, the Committee notes that the 2019 National Policy on Gender and Development provides for specific policy actions to eliminate gender stereotypes such as for example, increasing women access to media content and decision-making positions in this industry, censoring media contents that perpetuate gender stereotypes, and addressing negative gender stereotypes among with children and youth. The Committee requests the Government to provide information on the measures adopted to implement the actions envisaged in these policies to combat gender stereotype in training, employment and occupation.

Equality of opportunity and treatment of ethnic minority groups and indigenous people. In its last comment, the Committee requested the Government to provide information on: (1) the measures adopted or envisaged to ensure that indigenous people have access to their traditional occupations and livelihood activities; (2) the follow up given to the decisions of the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights (ACHPR) on the situation of the Endorois and Ogiek people; (3) the findings of the NGEC’s Status Report on Equality and Inclusion; and (4) the activities of the NGEC and the National Land Commission in relation with the indigenous people. While the report of the Government does not address these matters, the Committee observes that: (1) one of the objectives of the 2019 National Policy on Gender and Development is to enhance and intensively promote the social, economic and political inclusion of all, irrespective of age, sex, disability, race, ethnicity, origin, religion, economic or other status; and that (2) based on the 2018–2023 Strategic Plan of the Kenya National Commission on Human Right (KNCHR), the KNCHR facilitates the restoration of the Endorois people’s rights and the implementation of the ACHPR decisions. The Committee requests the Government to provide detailed information on the activities conducted by the Kenya National Commission on Human Rights (NCHR), the National Land Commission, or other institutions and actors (including workers and employers’ organizations), to promote and implement the principle of equality of opportunity and treatment of workers belonging to ethnic minority groups and indigenous people.

Persons with disabilities. In follow to its request for information on the measures adopted or envisaged to promote the inclusion of persons with disabilities in employment and occupation, the Committee takes note of the 2018–2022 Strategic Plan of the National Council for Persons with Disabilities that addresses extensively non-discrimination in employment opportunities and provides for the adoption of a number of specific measures, including the creation of an employment portal linked to the Kenyan labour market, access to scholarships, and opportunities for self-employment and entrepreneurship. The Committee requests the Government to provide information on the concrete measures adopted and their impact on the employment of persons with disabilities.

Article 4. Measures affecting persons justifiably suspected of, or engaged in, activities prejudicial to the security of the State. The Committee once again requests the Government to specify the scope of application of section 5(3) of the Employment Act, 2007 and to provide information about the “good conduct” certificate.

Enforcement. In its last comment, the Committee requested the Government to provide information on: (1) the number of cases of discrimination in employment or occupation reported to or detected by labour inspectors – including in Export processing zones (EPZs); and (2) on such cases processed by the NGEC and the courts. The Committee takes note of the reference of the Government to the 2014 judicial decision of the Industrial Court of Nairobi, imposing sanctions following a finding of wage discrimination on the basis of race. The Committee notes however that the Government does not provide information on the number of cases of discrimination handled by the labour inspection, the NGEC or the courts. It therefore requests the Government to provide information on the number of cases related to the implementation of the Convention, processed by the labour inspectorate, the NGEC or the courts, including information on the nature of the discrimination and the outcome of these cases.

Article 2(3) of the Convention. Age of completion of compulsory schooling. As regards compulsory education and measures to improve the functioning of the educational system as well as statistical information concerning school enrolments, the Committee refers to its detailed comments under the Worst Forms of Child Labour Convention, 1999 (No.182).

Article 3(2). Determination of hazardous work. With regard to the application in practice of section 16 of the Employment (General) Rules of 2014 on the list of hazardous types of work, the Committee refers to its detailed comments under the Worst Form of Child Labour Convention, 1999 (No.182).

Article 8. Artistic performances. The Committee previously noted 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 would 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, areas of protection and offences and legal proceedings. The Committee expressed the firm hope that the regulations concerning the participation of children in artistic performances would be adopted in the near future. Noting the absence of information in the Government’s report, the Committee once again requests the Government to take the necessary measures to ensure that the regulations concerning the participation of children in artistic performances are adopted without delay, and to provide information on any progress made in this regard.

Article 1 of the Convention. National policy and application of the Convention in practice. The Committee previously noted the Government’s indication that it had established several social support programmes, including the Cash Transfer Programmes to Orphans and Vulnerable Children (CT–OVC); Urban Food Subsidy; and several bursaries such as the Presidential Bursary Scheme for Orphans and Vulnerable Children. It further noted several activities undertaken by the ILO–IPEC, through the Global Action Programme (GAP 11) as well as the achievements made under the Support to the National Action Plan (SNAP) project. The Committee, however, noted from the SNAP project report that child labour remained a developmental challenge in Kenya that was linked to issues such as access to education, skills training and related services, social protection and the fight against poverty. The Committee therefore strongly encouraged 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 in the country.

The Committee notes the detailed information provided by the Government in its report on the measures taken to eliminate child labour through improving the functioning of the educational system. In this regard, the Committee notes the measures taken to improve school enrolment and attendance rates and reduce drop-out rates, such as the implementation of: (i) free primary education policy; (ii) provision for primary school infrastructure improvement grants; and (iii) the implementation of feeding programmes in selected primary schools in arid and semi-arid lands (ASAL), slums and poverty-stricken areas.

The Committee further notes the information from the ILO website that in October 2016, the National Assembly of Kenya adopted a National Policy on Elimination of Child Labour (NPCL) which aims at building synergies and mainstreaming child labour interventions in national, county and sectoral policies. The National Policy focuses on strategies that are aimed at the prevention, identification, withdrawal, rehabilitation and reintegration of children involved in all forms of child labour. It also notes from the Government’s report to the Human Rights Council that a National Plan of Action (NPA) for Children 2015-2022 has been adopted which proposes to implement programmes for children (A/HRC/WG.6/35/KEN/1, paragraph 16).

However, the Committee notes the Government’s further indication that 17 per cent of children aged between 5-17 years are involved in child labour with the agricultural and domestic sectors being the main areas where child labour is more prevalent. The Committee further notes from the UNICEF Situation Analysis of Children and Women in Kenya, 2017 that a total of 9.5 million children in Kenya are experiencing multidimensional child poverty. While noting the measures taken by the Government, the Committee must express its concern at the significant number of children who are involved in child labour and are at risk of being engaged in child labour. The Committee therefore urges the Government to intensify its efforts to improve the situation of children under the age of 16 years and to ensure the progressive elimination of child labour in the country. It requests the Government to continue to provide specific information on the concrete measures taken in this regard, including the measures taken within the framework of the NCLP and the NPA 2015-2022 as well as the results achieved. The Committee also requests the Government to provide detailed information on the manner in which the Convention is applied in practice, including, for example, statistical data on the employment of children and young persons, extracts from the reports of the inspection services, and information on the number and nature of violations detected and penalties applied involving children and young persons.

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

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019

Articles 2(2) and 3(1) of the Convention. National policy concerning nursing services and nursing personnel. Nursing education and training. In its previous comments, the Committee noted the Government’s indication that nursing in Kenya was undergoing transformation, with the sector being reformed to align itself with the Constitution. The Committee noted the Government’s reference to the Nursing Strategic Direction towards Vision 2030, which aimed to: reorganize the Scheme of Service for Nurses, mainstream processes for improved quality of nursing services; and introduce new programmes. The Committee requested the Government to provide information on the implementation of these large-scale reforms and their impact, particularly in relation to the quality of nursing care. The Government reports that nursing in the country has undergone extensive transformation during the reporting period. It adds that the Scheme of Service for nursing personnel, established in 2015, is due for review, indicating that a Directorate in nursing was established with the support of the Scheme. With respect to measures to promote the retention of nurses, the Committee notes the Government’s indication that the promotion of nurses is being carried out using the current Scheme of Service, and there has been an increase in allowances. The Committee further notes the Government’s indication that nurses are being trained on processes, resulting in improved collaboration with other health workers and better patient care. The availability of specialized care has been increased through nurses who have completed the requisite courses. In addition, mobile clinics have enabled nurses and midwives to provide comprehensive care in communities, reducing healthcare disparities. The Government refers to the “Big Four” plan announced in December 2017, which will guide the development agenda of the country in the period 2018–22, and includes Universal Health Coverage (UHC). The Committee notes with interest the launch of Kenya’s Nursing Now campaign in 2018, which seeks to strengthen leadership in nursing as a central principle as well as to achieve UHC. The Government indicates that compiling data on the overseas migration of nurses remains a challenge given that many nurses migrate for other purposes, but start working overseas. Moreover, few nurses request a license from the national regulatory body before migrating. The Committee takes note of the detailed Annexes provided by the Government on the public and private institutions providing nursing education and training and the number of students who graduate from nursing colleges annually. It also notes the detailed information regarding the organization of nursing studies (requirements for entry, levels of education, duration). The Government indicates that there are currently 26 different training programmes (five at certificate level, 19 at diploma level and two at degree level) with different entry requirements and duration of study. Furthermore, post-basic diploma courses are offered in Kenya, providing specialized training in areas such as cardiac nursing and community nursing. With respect to the manner in which nursing education and training is monitored, the Government indicates that the Nursing Council of Kenya (NCK) is mandated to set standards related to the education and practice of nursing and midwifery and of health care through: regulation of nurses and midwives training syllabi and institutions; conducting of licensing examinations; compilation and maintenance of registers, rolls and records required to be kept under the Nurses Act; undertaking disciplinary measures as necessary to maintain a proper standard of conduct and nursing care; and advising the Cabinet Secretary on matters concerning all aspects of nursing. The Committee requests the Government to continue to provide updated information on measures taken or envisaged to promote the retention of nursing personnel and to provide information on the impact of new programmes to improve working conditions of nursing personnel and the quality of nursing care, including on the impact of the Nursing Now campaign. The Committee requests the Government to provide detailed information, including disaggregated statistical data concerning trends in the overseas migration of nurses and information on the impact of measures taken to address this issue. The Committee also requests the Government to continue to provide information on the number of students who graduate from nursing colleges annually and the number of institutions offering nursing education and training, and on the organization and monitoring of nursing education and training.

Article 5(2). Determination of conditions of employment and work. The Government indicates that, although the Kenya National Union of Nurses (KNUN) has concluded collective bargaining agreements with various private nursing institutions, it has not yet concluded a collective agreement to improve the terms and conditions of employment for nurses employed by county governments. The Committee reiterates its request that the Government provide a copy of the collective bargaining agreement between the KNUN and the Government once it has been concluded. In addition, the Committee once again requests the Government to provide copies of the collective bargaining agreements in force between the Government and the Union of Kenya Civil Servants and the Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers that contain provisions on the employment conditions of nursing personnel.

Part V of the report form. Practical application. The Committee takes note of the registration data provided by the Government, according to which, for the fiscal year 2019-20, there were 366 nurses in private practice and 1,316 nurses registered with the Nursing Council of Kenya. The Committee requests the Government to provide detailed information, disaggregated by age, sex and region, concerning the situation of nursing personnel in the country, including the nurse-population ratio, the number of nursing personnel broken down by those working at public and private healthcare establishments, and the number of those who leave the profession each year and copies of any recent reports or studies addressing nursing-related issues.

Article 7. Occupational, safety and health. The Committee notes the establishment of a National Emergency Response Committee on Coronavirus on 28 February 2020 through Executive Order No. 2 of 2020 and the adoption of the “interim guidelines and protocols for SARS-CoV 2 and COVID-19”. The Committee notes that the guidelines include recommendations for comprehensive prevention and case management strategies, addressed to health care workers taking care of patients suspected or confirmed to have COVID-19. According to “ILO: Country policy responses, COVID-19 and the world of work”, the Government has established the COVID -19 Emergency Response fund in partnership with the private sector. The Committee draws the attention of the Government to Paragraph 49 of Recommendation No. 157, which provides that: “(1) all possible steps should be taken to ensure that nursing personnel are not exposed to special risks. Where exposure to special risks is unavoidable, measures should be taken to minimise it; (2) measures such as the provision and use of protective clothing, immunisation, shorter hours, more frequent rest breaks, temporary removal from the risk or longer annual holidays should be provided for in respect to nursing personnel regularly assigned to duties involving special risks so as to reduce their exposure to these risks; (3) In addition, nursing personnel who are exposed to special risks should receive financial compensation.” The Committee also draws the Government’s attention to the ILO Guidelines on decent work in public emergency services, 2018, which recognize the need to protect public emergency workers, including emergency health workers, from exposure to communicable diseases. In particular, paragraphs 50 and 51 of the Guidelines stress that suitable and sufficient personal protective equipment (PPE) should be provided as protection against exposure to hazardous conditions for public emergency services (PES) workers and that workers and/or their representatives should be consulted and participate in relation to the selection and correct use of PPE. Noting that nursing personnel, are at high risk of being infected while treating patients with suspected or confirmed COVID-19 when infection control precautions, including use of personal protective equipment (PPE) are not strictly practiced, the Committee requests the Government to provide detailed updated information on the safety measures being taken or that are envisaged, including the provision of PPE and training in its use, as well as provision of adequate rest breaks during workers’ shifts and limitations on excessive hours wherever possible, with a view to protecting the health and wellbeing of nurses and limiting as much as possible their risk of contracting COVID-19.

Article 1 of the Convention. Measures taken to secure the prohibition and elimination of the worst forms of child labour and application of the Convention in practice. In its previous comments, the Committee noted with regret that the Government had been referring to the adoption of the National Child Labour Policy (NCLP) since 2004, and requested the Government to take the necessary measures to ensure its adoption in the very near future.

The Committee notes an absence of information in the Government’s report on this point. However, it notes the information from the ILO website that Kenya’s National Assembly adopted the NCLP in October 2016 which focuses on strategies that are aimed at the prevention, identification, withdrawal, rehabilitation and reintegration of children involved in all forms of child labour. The Committee also notes the Government’s information in its report of 11 November 2019 to the Human Rights Council of 2019 that a National Plan of Action (NPA) for Children in Kenya 2015-2022 is in place which provides an operational framework to guide stakeholders and funding partners in coordinating, planning, implementing and monitoring programmes for children (A/HRC/WG.6/35/KEN/1, paragraph 16). According to the NPA 2015-22 document, this NPA proposes to implement programmes that promote prevention of child labour, implement the provisions prohibiting commercial sexual exploitation and trafficking of children, strengthen the National Steering Committee on child trafficking, improve the provision of psychosocial support for victims of the worst forms of child labour and strengthen social protection programmes for vulnerable children. The Committee notes from the report of the UNICEF Situation Analysis of Children and Women (SITAN report) in Kenya, 2017 that the worst forms of child labour in Kenya include illicit drug trafficking, the employment of children as domestic workers, the commercial sexual exploitation of children, trafficking of children for child labour along with begging and scavenging (paragraph 406). The Committee requests the Government to provide information on the concrete measures taken within the framework of the NCLP and the NPA 2015-2022 to combat the worst form of child labour in Kenya and the results achieved. It also requests the Government to provide information on the nature, extent and trends of the worst forms of child labour, the number of children covered by the measures giving effect to the Convention, the number and nature of infringements reported, investigations, prosecutions, convictions and penal sanctions applied. To the extent possible, all information provided should be disaggregated by age and gender.

Articles 3(d) and 4. Hazardous work. The Committee previously noted 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)). It also noted 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. Noting the absence of information in the Government’s report, the Committee once again 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(2). Effective and time-bound measures. Clauses (a) and (c). Prevent the engagement of children in the worst forms of child labour and ensure access to free basic education for all children removed from the worst forms of child labour. In its previous comments, the Committee noted the various measures taken by the Government to improve access to basic education which led to an increase in the school enrolment rates at the primary level from 7.4 million in 2004 to 10.2 million in 2013 (95.9 per cent) and at the secondary level from 20.5 per cent to 33.1 per cent. Noting that the school enrolment in secondary level remained low, the Committee requested the Government to pursue its efforts to improve the functioning of the educational system, particularly by increasing secondary school enrolment, attendance and completion rates and decreasing the drop-out rates.

The Committee notes the Government’s information in its report on the measures taken to improve school enrolment and attendance rates and reduce dropout rates, including (i) awareness raising and empowerment of parents, teachers, communities and other partners to support children; (ii) the provision of more teachers to improve teacher-student ratio in secondary education; (iii) provision of increased grants to primary and secondary schools to implement policies for free primary and secondary school education and school infrastructure improvements; (iv) the implementation of feeding programmes in selected primary schools in arid and semi-arid lands (ASAL), slums and poverty-stricken areas; (v) the development of National Guidelines for school re-entry in early learning and basic education to prevent exclusion of children from education; and (vi) the adoption of a policy for the alternative provision of basic education and training. The Government indicates that through these efforts, the enrolment in public and private secondary schools increased from 2.8 million in 2018 to 3.3 million in 2019, an increase by 10.8 per cent. The Government report also provides statistical information on the school enrolment rates in the pre-primary level and primary level in 2019 which are 2,738,600 and 10,072,000 respectively. The Committee further notes the Government’s information in its report of November 2019 to the Human Rights Council that the total number of pre-primary, primary and secondary schools have increased by 1.7 per cent, 6.7 per cent, and 7.2 percent respectively, from 2016 to 2017. Furthermore, primary school enrolment of girls has increased from 5,060,300 in 2016 to 5,178,300 in 2018 (A/HRC/WG.6/35/KEN/1, paragraphs 62 and 63). However, the Committee notes the Government’s indication that more than 850,000 children aged between 6-17 years are out of school in Kenya. The Committee encourages the Government to pursue its efforts to improve the functioning of the educational system, by increasing the primary and secondary school enrolment, attendance and completion rates and decreasing the drop-out rates. It requests the Government to continue to provide information on the measures taken in this regard and the results achieved.

Articles 3(a) and 7(1) of the Convention. Worst forms of child labour and penalties. Trafficking of children. The Committee notes from the Assessment Report on Human Trafficking Situation in the Coastal Region of Kenya, 2018 by the International Organization for Migration (IOM Assessment Report), that Kenya has been identified as a source, transit and destination country for men, women and children subjected to forced labour and sex trafficking. The IOM has documented that internal trafficking occurs within Kenya mainly for purposes of domestic labour and sexual exploitation, while international or cross-border trafficking occurs for purposes of forced labour, domestic servitude and sexual exploitation. Child trafficking constitutes the main category of cases reported in the country and children are trafficked to work as domestic labourers, work in farming, fisheries, begging and for sex work in the coastal region of Kenya. This report also indicates that trafficking in persons in the coastal region of Kenya has been increasing with the most prevalent forms being trafficking for labour and sexual exploitation and child trafficking. The Committee also notes that the Committee on the Elimination of Discrimination against Women (CEDAW) in its concluding observations of November 2017 expressed its concern that women and girls, including in refugee camps, remain at risk of trafficking for purposes of sexual exploitation or forced domestic labour and at the low level of prosecutions of traffickers, particularly under the Counter-Trafficking in Persons Act of 2010 (CEDAW/C/KEN/CO/8, paragraph 26). The Committee therefore urges the Government to take the necessary measures to ensure the effective implementation and enforcement of the provisions of the Counter Trafficking in Persons Act by conducting thorough investigations and prosecutions against persons who engage in the trafficking of children and ensuring that sufficiently effective and dissuasive sanctions are imposed. It requests the Government to provide information on the measures taken in this regard and on the number of investigations, prosecutions, convictions and penalties imposed for the offences related to the trafficking of children under 18 years of age.

Articles 3(d), 4(1) and 7(2)(a) and (b). Hazardous work and effective and time-bound measures to prevent the engagement of children in, and to remove them from the worst forms of child labour and to provide for their rehabilitation and social integration. Child domestic work. In its previous comments, the Committee noted that section 12(3), read in conjunction with section 24(e) of the Employment (General) Rules of 2014, prohibits the employment of children under the age of 18 years in various types of hazardous work listed under fourth schedule of the Rules, including domestic work. The Committee also noted that 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. According to the GAP report of 2014, the situation analysis revealed that, children over 16 years of age, some of whom started working at 12–13 years, are involved in domestic work in Kenya. Many are underpaid and work for long hours averaging 15 hours per day and are subject to physical and sexual abuse. It further noted that according to the report entitled Road Map to Protecting Child Domestic Workers in Kenya: Strengthening the Institutional and Legislative Response, April 2014, there were estimated 350,000 child domestic workers in Kenya, the majority of whom are girls between 16 and 18 years of age. The Committee requested the Government to take the necessary measures to prevent child domestic workers from engaging in hazardous work and to take effective and time bound measures to remove them from such work and to provide for their rehabilitation and social integration.

The Committee notes that the Government has not provided any information on the measures taken to remove children from hazardous domestic work nor on measures for their rehabilitation and social integration. However, it notes the Government’s indication in its report that 17 per cent of children aged between 5-17 years are involved in child labour with the agricultural and domestic sectors being the main areas where child labour is more prevalent. About 82 per cent of the domestic workers are girls from rural areas working in urban centres. The Committee notes with concern the large number of children under the age of 18 years who are involved in domestic work and are subject to hazardous working conditions. The Committee therefore once again urges the Government to take the necessary measures to ensure that its new regulation on hazardous work is effectively applied so as to prevent domestic workers under 18 years of age from engaging in hazardous work. It also requests the Government to take effective and time-bound measures to provide the necessary and appropriate direct assistance to remove children engaged in domestic work from hazardous working conditions and ensure their rehabilitation and social integration. The Committee finally requests the Government to provide information on the measures taken in this regard and on the results achieved, in terms of the number of child domestic workers removed from such situation and rehabilitated.

Article 7(2). Effective and time-bound measures. Clause (d). Identifying and reaching out to children at special risk. 1. Street children. In its previous comments, the Committee noted the Government’s information that the Government, in partnership with ILO–IPEC was working to support the removal of children from street work and to enrol them in skills training programmes and entrepreneurship training. The Committee requested the Government to continue to provide information on the measures taken by the Government to protect street children from the worst forms of child labour and to provide for their rehabilitation and social integration.

The Committee notes the Government’s information that it has been implementing the Street Family Rehabilitation Trust Fund and that it is in the process of developing a National Policy on Rehabilitation of Street Families. The Committee also notes that according to the UNICEF Situation Analysis of Children and Women (SITAN report) in Kenya, 2017 under the Street Family Rehabilitation Trust Fund, more than 80,200 street children and youth have been enrolled in primary and secondary schools, while 18,000 street children have been re-integrated with their families. However, SITAN report indicates that there are an estimated 50,000 to 250,000 children who are living and/or working on the streets in Kenya. While noting the measures taken by the Government the Committee must express its concern at the significant number of children working on the streets. The Committee therefore urges the Government to intensify its efforts to protect street children from the worst forms of child labour, and to ensure the rehabilitation and social integration of children actually removed from the streets. It also requests the Government to provide information on the measures taken in this regard and the results achieved in terms of the number of street children removed from such situations and socially reintegrated.

2. Orphans of HIV/AIDS and other vulnerable children (OVCs). The Committee previously noted, that according to the ILO–IPEC TACKLE project report entitled “Combating child labour in Siaya District, Kenya through sustainable home grown school feeding programme”, the Government of Kenya estimated that 1.78 million children are orphans in Kenya, half of them being due to HIV/AIDS related deaths, with 40 per cent of them living with their grandparents. The Committee requested the Government to strengthen its efforts to protect child victims and orphans of HIV/AIDS from the worst forms of child labour, in particular by increasing their access to education.

The Committee notes that the Government has not provided any information in this regard. It notes from the SITAN report that currently 353,000 households are benefitting from the Cash Transfer Programme for OVCs. Moreover, the Presidential Bursary Scheme for OVCs is being provided to 50 children per constituency. The SITAN report further indicates that there are 854 registered Charitable Children’s Institutions in Kenya providing care and protection to around 43,000 children. The Committee, however, notes from the SITAN report that approximately 3.6 million Kenyan children are orphans or otherwise classified as vulnerable. Of these, 646,887 children have lost both parents, while 2.6 million have lost one parent (one million of these due to AIDS). Other children are made vulnerable due to poverty, harmful cultural practices, abandonment, natural disasters, ethnic and political conflict and/or poor care arrangements. Recalling that orphans and OVCs are at a greater risk of being involved in the worst forms of child labour, the Committee urges the Government to intensify its efforts to ensure that such children are protected from the worst forms of child labour and to facilitate their access to education. It requests the Government to provide information on the effective and time bound measures taken and the results achieved in this regard.

Clause (e). Take account of the special situation of girls. Commercial sexual exploitation of girls. In its previous comments, the Committee noted that children were exploited in prostitution throughout Kenya, including in the coastal sex tourism industry, in the eastern khat cultivation areas, and near Nyanza’s gold mines. Brothel-based child prostitution was reportedly increasing in Migori, Homa Bay, and Kisii counties, particularly around markets along the border with the United Republic of Tanzania. The Committee requested the Government to take effective and time bound measures to protect girls from becoming victims of commercial sexual exploitation and to provide information on such measures.

The Committee notes an absence of information in the Government’s report on this point. The Committee, however, notes from the SITAN report that the sexual exploitation of children in travel and tourism is reportedly common in major tourist destinations such as Nairobi, Mombasa, Kisumu, Kakamega, Nakuru as well as in other major towns in Kenya. It also notes from the IOM Assessment Report that an estimated 10,000 to 15,000 girls between 12 and 18 years living in Diani, Kilifi, Malindi and Mombasa are involved in sex work. This report also indicates that child sex workers including beach boys, bar staff, waiters and others are often compelled to deliver sexual services and that during the low tourist season, the local market for child sex workers keeps the system going. The Committee further notes that the Committee on the Rights of the Child, in its concluding observations of 2016, expressed concern about the high level of child prostitution and child pornography, particularly in the tourism and travel sector (CRC/C/KEN/CO/3-5, paragraph 37). The Committee notes with deep concern the significant number of children who are engaged in this worst forms of child labour in Kenya. The Committee therefore urges the Government to take effective and time-bound measures to protect girls from becoming victims of commercial sexual exploitation, particularly in the coastal regions of Kenya. It requests the Government to provide information on the measures taken in this regard and the results achieved in terms of the number of children who are, in practice, removed from commercial sexual exploitation and rehabilitated.

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

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. 1. Law enforcement measures. The Committee previously noted the adoption of the Counter Trafficking in Persons Act, No. 8 in 2010, as well as the establishment of the Counter Trafficking in Persons Advisory Committee in 2014. The Committee requested the Government to continue to provide information on the measures taken to combat trafficking in persons. It also requested the Government to provide information on the measures taken to implement the 2013–17 National Plan of Action for Combatting Trafficking; and the results achieved in combatting trafficking in persons, including information on the number of investigations carried out, convictions and the penalties imposed on perpetrators.

The Committee notes that the Government once again refers in its report to the establishment in 2014 of the Counter Trafficking in Persons Advisory Committee and to its functions. The Committee also notes the Government’s indication that, the Advisory Committee meets on a quarterly basis to discuss and deliberate issues of prevention, protection and rehabilitation of victims of trafficking in persons. In collaboration with various international agencies, the Advisory Committee has received considerable training on counter-trafficking and has also in turn conducted the same among non-state actors, thereby increasing their level of awareness. The Government also refers to the 2013–17 National Plan of Action for Combatting Trafficking and indicates that, in 2014, it revoked all accredited certificates issued to private employment agencies to better regulate foreign contracts for Kenyans working in the Middle East. While noting this information, the Committee requests the Government to provide updated information on the measures taken to implement the Counter Trafficking in Persons Act No. 8, including the activities of the Counter Trafficking in Persons Advisory Committee. It also requests the Government to provide information on the results achieved in implementing the 2013–17 National Plan of Action for Combatting Trafficking. Lastly, the Committee once again requests the Government to provide information on the number of investigations carried out, convictions and the penalties imposed on perpetrators.

2. Protection and assistance to victims. The Committee notes that the Government indicates that the Counter Trafficking in Persons National Assistance Trust Fund is yet to be launched and is therefore not operational, and that the Advisory Committee is also working on the modalities of setting up a rehabilitation system for victims. The Committee requests once again the Government to provide information on the specific measures taken and concrete results achieved with regard to the protection, assistance and rehabilitation of victims of trafficking. Please also indicate whether the Counter Trafficking in Persons National Assistance Trust Fund has become operational, and if so, the manner in which it guarantees the protection of victims of trafficking.

The Committee notes an absence of information on this point in the Government’s report. The Committee hopes once again that section 266 of the Penal Code will be either repealed or amended, to ensure that the exaction of forced labour is punishable as a penal offence and that the penalties imposed are adequate. The Committee requests the Government to provide information on the progress made in this regard.

Articles 1(1) and 2(1). Compulsory labour in connection with the conservation of natural resources. For a number of years, the Committee has been referring to sections 13–18 of the Chief’s Authority Act (Cap. 128), as amended by Act No. 10 of 1997, according to which able-bodied male persons between 18 and 50 years of age may be required to perform any work or service in connection with the conservation of natural resources for up to 60 days in any year. The Committee previously noted the Government’s indication that sections 13–18 of the Chief’s Authority Act referred to above had never been enforced and that the Chief’s Authority Act would be replaced by the Administrative Authority Act. The Government stated that the Administrative Authority Bill which was intended to replace the Chief’s Authority Act had been published and submitted to Parliament for debate and enactment. It also undertook to communicate a copy of the new Act, once it was approved.

The Committee notes once again an absence of information on this point in the Government’s report. The Committee once again trusts that the Administrative Authority Act, which is intended to replace the Chief’s Authority Act, will be adopted in the near future and that the legislation will be brought into conformity with the Convention and indicated practice. It requests the Government to supply a copy of the Administrative Authority Act, as soon as it is adopted.

Adequate penalties. The Committee previously hoped that section 266 of the Penal Code, under which compelling a person to labour is punishable with a misdemeanor will be either repealed or amended, to ensure that the exaction of forced labour is punishable as a penal offence and that the penalties imposed are adequate.

Article 1(a) of the Convention. Penal sanctions involving compulsory labour as a punishment for expressing political views. Political Parties Act. In its earlier comments, the Committee had drawn the Government’s attention to certain provisions of the Political Parties Act, 2011. It noted that, under section 4(2), the Registrar shall not register a political party if the requirements of article 91 of the Constitution are not met, that is, if it is founded on a religious, linguistic, racial, ethnic, gender or regional basis. The Registrar shall also deregister a political party on the same grounds under section 21(1) of the Act. Under section 22(1) where the registration of a political party has been cancelled, no person shall summon a meeting of its members or officers, or attend a meeting in the capacity of a member or officer, or invite persons to support the political party, etc. The Committee noted that, according to section 46 any violation of the provisions of the Act is punishable with fines or imprisonment for a term of not less than two years. It further noted that imprisonment involves compulsory prison labour under Rule 86 of the Prison Rules.

With reference to sections 21 and 46 of the Political Parties Act, the Committee notes the Government’s repeated indication in its report that the prohibition of using compulsory labour does not include the use of compulsory labour as a punishment with regard to criminal offences such as the misappropriation of public funds by individuals within a political party. Moreover, the Government states that the Political Party Act does not establish sanctions for citizens or members of political parties who hold or express political views opposed to the established political system. Lastly, the Government indicates that there are currently no court decisions pursuant to section 46 of the Act.

The Committee observes however that the above-mentioned provisions of the Political Parties Act, 2011 are not only limited to criminal offences such as the misappropriation of public funds by individuals within a political party or to acts of violence or incitement to violence. These provisions are broad enough that they may lead to the imposition of penalties involving compulsory labour as a punishment of various non-violent actions relating to the organization of political parties.

The Committee recalls once again, that Article 1(a) of the Convention prohibits the use of compulsory labour as a means of political coercion or education or as a punishment for holding or expressing political views ideologically opposed to the established political, social or economic system. The range of activities which must be protected, under this provision, from punishment involving compulsory labour thus comprises the freedom to express political or ideological views which may be exercised orally or through the press and other communications media or through the exercise of the right of association, including by the establishment of political parties or societies. However, certain limitations may be imposed by law on the rights and freedoms concerned, which must be accepted as normal safeguards against their abuse, examples being laws against incitement to violence, civil strife or racial hatred (see General Survey of 2012 on the fundamental Conventions, paragraphs 302–303). The Committee requests once again the Government to provide information on the application in practice of the above mentioned provisions of the Political Parties Act, indicating whether or not any registration of a political party has been refused or cancelled on the grounds of article 91 of the Constitution, and whether any sanctions, involving compulsory labour have been applied in the case of a deregistered political party whose activities are still being carried out by its members.

Article 1(a) of the Convention. Penal sanctions involving compulsory labour as a punishment for expressing political views or views ideologically opposed to the established political, social or economic system. Penal Code and the Public Order Act. For many years, the Committee has been referring to certain provisions of the Penal Code and the Public Order Act, under which sentences of imprisonment may be imposed as a punishment for participating in certain meetings and gatherings or the publication, distribution or importation of certain kinds of publications. These sentences involve compulsory labour under Rule 86 of the Prison Rules. The Committee has been referring, in particular, to section 5 of the Public Order Act (Cap. 56), under which the police is entitled to control and direct the conduct of public gatherings and has extensive powers to stop or prevent the holding of public gatherings, meetings and processions (section 5(8)–(10)), contraventions being punishable with imprisonment (section 5(11) and (17)), which involves compulsory labour. The Committee has been also referring to section 53 of the Penal Code, under which printing, publishing, distributing, offering for sale, etc. of any prohibited publication is punishable with imprisonment; under section 52 of the Penal Code any publication can be declared a prohibited publication if it is necessary in the interests of public order, public morality or public health. The Committee requested the Government to bring into conformity the above-mentioned provisions in order to limit their application to only acts of violence.

The Committee notes with regret an absence of information on this point in the Government’s report. The Committee notes that sections 52 and 53 of the Penal Code and section 5(8), (10), (11) and (17) of the Public Order Act referred to above are not limited to acts of violence or incitement to violence and their application may lead to the imposition of penalties involving compulsory labour as a punishment for various types of non-violent actions relating to the expression of views through certain kinds of publications and participation in public gatherings.

The Committee once again recalls that Article 1(a) of the Convention prohibits the use of any form of forced or compulsory labour, including compulsory prison labour, as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. Referring to paragraph 303 of its General Survey of 2012 on the fundamental Conventions, the Committee points out that the Convention does not prohibit punishment by penalties involving compulsory labour of persons who use violence, incite violence or engage in preparatory acts aimed at violence. However, sanctions involving compulsory labour fall within the scope of the Convention if they enforce a prohibition of the peaceful expression of views or of opposition to the established political, social or economic system, whether the prohibition is imposed by law or by an administrative decision. Such views may be expressed orally or through the press or other communications media or through the exercise of the right of association (including the establishment of political parties or societies) or participation in meetings and demonstrations. The Committee therefore urges the Government to take the necessary measures to bring the provisions referred to above into conformity with the Convention (for example by limiting their scope to acts of violence or incitement to violence or by replacing sanctions involving compulsory labour with other kinds of sanctions, such as fines); and to report on the progress made in this regard. Pending the adoption of such amendments, the Committee requests the Government to provide information on the application in practice of sections 52 and 53 of the Penal Code and sections section 5(8), (10), (11) and (17) of the Public Order Act.

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

Comments adopted by the CEACR: Kenya

Adopted by the CEACR in 2021

C098 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C140 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C142 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C144 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

MLC, 2006 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Adopted by the CEACR in 2020

C017 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

C097 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Matters commons to the application of Conventions Nos 97 and 143

Matters specifically relating to the application of Convention No. 97

Matters specifically relating to the application of Convention No. 143

C100 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

C111 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

C138 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

C138 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

C149 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

C182 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

C182 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Adopted by the CEACR in 2019

C029 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

C105 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

C105 - Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Comments adopted by the CEACR: Kenya

Display the list by:

Adopted by the CEACR in 2021

C098 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C140 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C142 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C144 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

MLC, 2006 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Adopted by the CEACR in 2020

C017 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

C097 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Matters commons to the application of Conventions Nos 97 and 143

Matters specifically relating to the application of Convention No. 97

Matters specifically relating to the application of Convention No. 143

C100 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

C111 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

C138 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

C138 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

C149 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

C182 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

C182 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Adopted by the CEACR in 2019

C029 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

C105 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

C105 - Observation (CEACR) - adopted 2019, published 109th ILC session (2021)