Solicitud directa (CEACR) - Adopción: 2022, Publicación: 111ª reunión CIT (2023)

Convenio sobre el trabajo marítimo, 2006 (MLC, 2006) - Kenya (Ratificación : 2014)

The Committee notes the Government’s second report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). The Committee notes that the amendments to the Code adopted by the International Labour Conference, in 2014, 2016 and 2018, entered into force for Kenya on 4 August 2022, 8 January 2019 and 26 December 2020, respectively.

Impact of the COVID-19 pandemic. The Committee refers to 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. The Committee notes that it did not have the opportunity to examine the application of the MLC, 2006 by Kenya during the peak of the pandemic. Noting with deep concern the impact that the COVID-19 pandemic had on the protection of seafarers’ rights as laid out in the Convention, the Committee refers to its general observation of 2020 and its comments in the general report of 2021 on this issue and requests the Government to ensure that any remaining restrictions are lifted in order to guarantee full compliance with the MLC, 2006.

Article I of the Convention. General questions on application. Implementing measures. The Committee previously requested the Government to provide a copy of all relevant new legislation or other regulatory instruments implementing the Convention once they are adopted. The Government indicates that Kenya has proposed amendments to the Merchant Shipping Act, 2009 and drafted the Merchant Shipping (Maritime Labour) Regulations 2022 (hereafter, the draft Regulations) which are due to be subjected to stakeholder participation. Noting that these amendments would represent a significant step forward in the implementation of the Convention, the Committee expects that they will be adopted in the very near future. The Committee requests the Government to adopt all the necessary measures to implement the Convention taking into account the points raised below, indicate the progress made in this regard and provide a copy of the amended legislation once adopted.

Article II, paragraph 1(f) and 2. Definitions and scope of application. Seafarers. The Committee notes that, in reply to its previous comments on section 2, Part I, of the Merchant Shipping Act, 2009 which excludes masters and apprentices from the definition of “seafarers”, the Government states that amendments to the Merchant Shipping Act, 2009 have been proposed taking into account the recommendations of the Committee so as to require that “seafarer means any person who is employed or engaged or works in any capacity on board a ship except a pilot”. The Committee expects that the amended legislation will be adopted in the very near future and requests the Government to provide a copy of the amended texts once adopted.

Article II, paragraphs 1(i) and 4. Definitions and scope of application. Ships. The Committee previously requested the Government to indicate what provisions have been made to ensure that all ships ordinarily engaged in commercial activities are covered by the Convention and to provide information on any decisions taken under section 165(3) of the Merchant Shipping Act, 2009 regarding exemptions.The Committee understands that no cases of doubts have arisen regarding the definition of ships and that the draft Regulations shall apply to(a) Kenyan ships wherever they may be; (b) all other ships while in a port or place in, or within the territorial and other waters under the jurisdiction of Kenya; and (c) Kenyan seafarers on board foreign ships engaged in international voyages. The Committee expects that the draft Regulations will be adopted in the very near future to ensure full compliance with the Convention.

Regulation 1.1 and Standard A1.1, paragraph 1. Minimum age. The Committee notes that, in reply to its previous comment regarding section 56 of the Employment Act, 2007 and section 12 of the Employment (General) Rules, 2014 which allows for exceptions to the prohibition of the employment, engagement or work on board a ship of any person under the age of 16, the Government states that Regulation 12(1) of the draft Regulations provides that a person under the age of sixteen years shall not be employed or engaged or work on a ship. Recalling that under the Convention no person below the minimum age shall be employed or engaged or work on a ship without exception, the Committee expects that the draft Regulations will be adopted in the very near future and requests the Government to take the necessary measures to harmonize its legislation to fully comply with Regulation 1.1 and Standard A1.1, paragraph 1.

Regulation 1.1 and Standard A1.1, paragraphs 2 and 3. Minimum age. Night work. The Committee notes that, pursuant to Regulation 12(3)(f) of the draft Regulations a young person shall not engage in night work between the hours of 6:30pm and 6:30am. Additionally, the Committee takes note of the Government’s indication that the declaration of maritime labour compliance (DMLC), Part I provides that “[p]ersons under the age of 18 years may engage in night work where it is a part of a recognized training programme”. The Committee recalls that pursuant to Standard A1.1, paragraph 3(a): “[a]n exception to strict compliance with the night work restriction may be made by the competent authority when the effective training of the seafarers concerned, in accordance with established programmes and schedules, would be impaired.” The Committee therefore requests the Government to provide information on whether the competent authority has authorized exceptional derogations to the prohibition of night work in accordance with established training programmes and schedules.

Regulation 1.1 and Standard A1.1, paragraph 4. Minimum age. Hazardous work. The Committee notes that, in reply to its previous comments, the Government refers to several national provisions, among which section 128(4) of the Merchant Shipping Act, 2009 which provides that no child shall be employed to work in the engine-room of any ship, unless that child is an apprentice working under supervision; section 53(1) of the Employment Act, 2007 which prohibits the employment of a child in any activity which constitutes worst form of child labour; and Regulation 12(3)(c) of the draft Regulations which prohibits the employment of young persons where the work is likely to be harmful to their health or development. The Committee however observes that these provisions do not ensure the absolute prohibition required under Standard A1.1, paragraph 4, for persons under the age of 18 of the types of work considered hazardous, as such types of work may be permitted when undertaken under supervision. The Committee observes that the Government refers to the DMLC, Part I and to the Sixth Schedule of the “draft Regulations on crew list requirements” which provides that the tasks listed in Regulation 12(2) and (3) of the draft Regulations, including where the work is likely to be harmful to the health or development of a young seafarer, are prohibited to young persons, unless they are trained and certified for that work. The Committee recalls that Standard A1.1, paragraph 4 requires the absolute prohibition for persons under the age of 18 of the types of work considered hazardous. The Committee accordingly requests the Government to adopt the necessary measures without delay to give full effect to Standard A1.1, paragraph 4, clearly distinguishing between types of work that are prohibited and those that can only be undertaken under adequate supervision.

Regulation 1.4 and the Code. Recruitment and placement. The Committee notes that, in reply to its previous comments, the Government indicates that there are 7 private recruitment and placement services operating in its territory and that Regulation 17 of the draft Regulations implements the various requirements of Regulation 1.4 and the Code. The Government adds that Regulation 17(6) of the draft Regulations provides that “[w]here the shipowner of a Kenyan registered ship employs a seafarer from the seafarer recruitment and placement service in a country or territory in which these regulations do not apply, the shipowner shall ensure that those services meet the requirements of these regulations.” The Committee requests the Government to adopt the necessary measures in the very near future to ensure that full effect is given to Regulation 1.4 and the Code, and to provide information on these measures once adopted.

Regulation 2.1 and the Code. Seafarers’ employment agreements. The Committee previously requested the Government to provide detailed information on the implementation of this Regulation and the Code. The Committee notes with interest that the draft Maritime Laws (Amendment) Bill, 2021 amends section 119 of the Merchant Shipping Act 2009 and the draft amendments are in compliance with the requirements of the Convention. The Committee also observes that Regulation 18 of the draft Regulations establishes requirements for seafarers’ employment agreements in compliance with Standard 2.1, paragraph 1(a)-(d). The Committee expects that the amended legislation and the draft Regulations will be adopted in the very near future and requests the Government to provide a copy of these texts once adopted. With respect to the requirements of Standard A2.1, paragraphs 1(e) and 3 on the record of employment, the Committee notes that, while section 125 of the Merchant Shipping Act, 2009 provides that the certificate of discharge shall not contain any statement as to the wages or the quality of the work of the discharged seafarer, section 126 provides that the master shall write a character report on the conduct, character and qualifications of the seafarer. The Committee recalls that Standard A2.1, paragraph 3, provides that the record of employment shall not contain any statement as to the quality of seafarers’ work or as to their wages. The Committee requests the Government to take the necessary measures to ensure that the record of employment does not contain any statement as to the quality of the seafarer’s work, in conformity with Standard A2.1, paragraph 3.

Regulation 2.1 and Standard A2.1, paragraphs 5 and 6. Seafarers’ employment agreement. Termination. Shorter notice period for urgent reasons. Noting that the current legislation does not give effect to the detailed requirements of Standard A2.1, paragraphs 5 and 6, theCommittee previously requested the Government to take the necessary measures to ensure full conformity of the national legislation with these provisions of the Convention.The Committee notes that Regulation 18(9) of the draft Regulations establishes a minimum period of 7 days for the early termination of a seafarer’s employment agreement in conformity with the Convention. The Committee further notes that the suggested amendment to section 119(8) of the Merchant Shipping Act, 2009 also provides for a minimum period which shall not be less than seven days, but however stipulates that an agreement made to employ a seafarer under this section shall be terminated for (a) mutual consent of the parties thereto; (b) the death of the seafarer; or (c) the loss or total unseaworthiness of the ship. The Committee observes that it is not clear whether the minimum notice period of seven days is still enforced in the case of termination for mutual consent and whether the above-mentioned provision ensures the right of either the shipowner or the seafarer to terminate the seafarer’s employment agreement without the other party’s consent as long as the minimum seven-day notice is given. The Committee also observes that Regulation 18(9) of the draft Regulations provides that the minimum notice period to be given by the seafarer and shipowner for the early termination of a seafarers’ employment agreement shall be seven days except in exceptional circumstances under which a seafarer may give a shorter notice period. While the DMLC, Part I provides that a seafarer may terminate an agreement without notice on compassionate grounds, the Committee notes that the national provisions do not seem to define “exceptional circumstances”, and whether compassionate or other urgent reasons are considered exceptional circumstances justifying the right of the seafarer to terminate the contract on shorter notice or without notice, without penalty. The Committee recalls that each Member shall ensure that the need of the seafarer to terminate, without penalty, the employment agreement on shorter notice or without notice for compassionate or other urgent reasons is taken into account under national law or regulations or applicable collective bargaining agreements (Standard A2.1, paragraph 6). Consequently, the Committee requests the Government to clarify the circumstances under which a notice period, not shorter than seven days, can be given under the national provisions in accordance with Standard A2.1, paragraph 5, and to indicate how it gives effect to the possibility of a shorter period of notice in cases of “compassionate or other urgent reasons”, as provided for by paragraph 6 of this Standard.

Regulations 2.1 and 2.2 and Standards A2.1, paragraph 7 and A2.2, paragraph 7. Seafarers’ employment agreements and wages. Captivity as a result of acts of piracy or armed robbery against ships. In relation to the 2018 amendments to the Code, the Committee draws the Government’s attention to the following questions included in the revised report form for the Convention: (a) do laws or regulations provide that a seafarer’s employment agreement shall continue to have effect while the seafarer is held captive on or off the ship as a result of acts of piracy or armed robbery against ships?; (b) how are the terms piracy and armed robbery against ships defined under national legislation? (Standard A2.1, paragraph 7); and (c) do laws or regulations provide that wages and other entitlements under the seafarers’ employment agreement, relevant collective bargaining agreement or applicable national laws, including the remittance of any allotments, shall continue to be paid during the entire period of captivity and until the seafarer is released and duly repatriated or, where the seafarer dies while in captivity, until the date of death in accordance with national legislation? (Standard A2.2, paragraph 7). The Committee requests the Government to reply to the above-mentioned questions, indicating in each case the applicable national provisions.

Regulation 2.2 and the Code. Wages. Observing that the provisions of the Merchant Shipping Act, 2009 only partly address some of the requirements of Regulation 2.2 and the Code, the Committee requested the Government to indicate the measures taken to give full effect to Standard A2.2, paragraphs 2 and 4. The Committee observes that Regulation 23 of the draft Regulations gives effect to these provisions of the Convention. The Committee expects that the respective provisions of the draft Regulations will be adopted in the very near future.

Regulation 2.3 and Standard A2.3, paragraph 3. Hours of work and hours of rest. Normal working hours’ standard. Observing 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, theCommittee requested the Government to adopt the necessary measures to ensure the conformity of its legislation with the requirements of Standard A2.3, paragraph 3, and Standard A1.1, paragraph 2.The Committee takes note that Regulation 20(3) of the draft Regulations prescribes measures with respect to hours of work and hours of rest for seafarers under the age of 18. Noting however that the Government does not provide information on measures taken to give effect to the normal working hours standard for seafarers prescribed under Standard A2.3, paragraph 3, the Committee reiterates its request to the Government to take the necessary steps to ensure compliance with this provision of the Convention.

Regulation 2.3 and Standard A2.3, paragraphs 5, 6 and 13. Hours of work and hours of rest. Exceptions. The Committee notes that Regulation 11(9) of the Merchant Shipping (Minimum Safe Manning) Regulations, 2016, to which the Government makes reference provides that: “[t]he Authority may allow exceptions from the required hours of rest in sub-regulations (2) and (3)” (which provide for 10 hours of rest in any 24-hour period and 77 hours in any seven day period and that hours of rest may be divided into no more than two periods, one of which shall be at least six hours, and the interval between consecutive periods of rest shall not exceed 14 hours). The Committee notes that Regulation 11(10) of the same Regulations provides that exceptions from the weekly rest period provided for in sub-regulation (9) shall not be allowed for more than two consecutive weeks and that the intervals between two periods of exceptions on board shall not be less than twice the duration of the exception. Regulation 11(11) further provides that the hours of rest provided for in sub-regulation (2) may be divided into not more than three periods, one of which shall be at least six hours in length and neither of the other two periods shall be less than one hour in length, with intervals between consecutive periods of rest not exceeding 14 hours, and exceptions shall not extend beyond two twenty-four hour periods in any seven-day period. The Committee recalls that the limits on hours of work or rest shall not exceed those established under Standard A2.3, paragraphs 5 and 6, and that any exceptions which do not fall within those covered by paragraph 14, must follow the requirements of Standard A2.3, paragraph 13, and be provided by collective agreements.The Committee therefore requests the Government to indicate if any exceptions to the minimum hours of rest for watchkeepers have been permitted up to this date and to indicate the measures taken or envisaged to ensure that any exceptions to the provisions set out in Standard A2.3, paragraphs 5 and 6, other than those justified under paragraph 14 of the same Standard, are only provided through a collective agreement, and not fixed by law, as required by Standard A2.3, paragraph 13.

Regulation 2.4, paragraph 2. Entitlement to leave. Shore leave. Observing that the Merchant Shipping Act does not require shipowners to give seafarers appropriate shore leave, the Committee previously requestedthe Government to indicate the measures taken to give effect to Regulation 2.4, paragraph 2. The Committee notes that Regulation 21(1) of the draft Regulations gives effect to the requirement of Regulation 2.4, paragraph 2. The Committee expects that the amended legislation will be enacted in the very near future and that all necessary measures will be adopted to comply with this provision of the Convention.

Regulation 2.4 and Standard A2.4, paragraph 3. Prohibition of agreements to forgo paid annual leave. Exceptions. Noting that national legislation does not seem to prohibit agreements to forgo the minimum annual leave with pay, the Committee previously requested the Government to indicate the measures taken to give effect to Standard A2.4, paragraph 3.The Committee notes the Government’s indication thatsection 28 of the Employment Act, 2007, provides that where leave days entitlements are in excess there can be an agreement between the employer and the employee on how the remaining leave days will be utilized. The Government further refers to Regulation 21(3) of the draft Regulations which stipulates that “[a]n agreement to forego the minimum annual leave with pay under this regulation, except in cases provided for by the Authority, is prohibited.” The Committee considers that this provision needs to be understood in a restrictive manner. In contrast, to read this provision as a broad authorization to forgo annual leave for cash compensation or otherwise, would defeat the purpose of Regulation 2.4, which is to ensure that seafarers have adequate leave. In this context, the Committee requests the Government to indicate whether the Authority has authorized seafarers to forgo their annual leave and, if so, to provide detailed information about such cases.

Regulation 2.5 and Standard A2.5.1, paragraphs 1 and 2(a) and (b). Repatriation. Circumstances. Maximum period of service on board. Noting that section 194(1) of the Merchant Shipping Act, 2009 does not include all the circumstances in which a seafarer is entitled to repatriation and 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 requested the Government to indicate the measures taken to give full effect to Standard A2.5.1, paragraphs 1 and 2. The Committee notes that the Government refers to circumstances leading to repatriation which are prescribed in section 194 of the Merchant Shipping Act, 2009 amended by the draft Maritime Laws (Amendment) Bill, 2021. Noting that the Government has not supplied a copy of the revised text of section 194 of the Merchant Shipping Act, 2009, the Committee requests it to adopt the necessary measures to ensure compliance with this provision of the Convention, and to provide a copy of the relevant texts once adopted.

Regulation 2.5 and Standard A2.5.1, paragraph 2(c). Repatriation. Entitlements. Referring to its previous comments, the Committee notes that Regulation 26(1) of the draft Regulations requires a shipowner recruiting seafarers to provide the Authority with evidence that financial security has been taken out to ensure that seafarers are duly repatriated. The Committee further notes that Regulation 25(2) of the draft Regulations provides for the costs to be borne by the shipowner for repatriation in accordance with Guideline B2.5.1, paragraph 3 and refers to the seafarer’s destination of choice among the prescribed destinations in the employment agreement. The Committee however observes that the model SEA does not refer to any destinations to which the seafarer may be repatriated. Therefore, the Committee requests the Government to indicate how, in relation with the place of repatriation, it has given due consideration to Guideline B2.5.1, paragraphs 6 and 7.

Regulation 2.5 and Standard A2.5.1, paragraph 3. Repatriation. Prohibition of advance payment and to recover costs from seafarers. Noting that sections 195 and 196 of the Merchant Shipping Act, 2009 contain provisions specifying the circumstances in which a seafarer can be expected to pay for the cost of his or her repatriation, the Committee requested the Government to indicate the measures taken or envisaged to ensure full compliance with Standard A2.5.1, paragraph 3. The Committee notes the Government’s indication that Regulation 25(3) of the draft Regulations provides that “[a] shipowner shall not (a) require a seafarer to make an advance payment towards the cost of repatriation at the beginning of the seafarer's employment; or (b) recover the cost of repatriation from the seafarers’ wages or other entitlements, except, the seafarer has been found, to be in serious default of the seafarer’s employment obligations under the law or collective bargaining agreements”. The Committee however notes that the Government also refers to section 195 of the Merchant Shipping Act, 2009 according to which the costs of repatriation are to be borne by the shipowner with the exception of the circumstance where a seafarer employed as a seafarer on a Kenyan ship, who was left behind in a foreign country or taken to Kenya on being shipwrecked, remains there after the expiry of a period of three months from the time he was left behind in such country or taken to Kenya. The Committee recalls that the only case in which the right to repatriation may lapse in conformity with the Convention is provided by Guideline B2.5.1, paragraph 8, in the case in which the seafarers concerned do not claim that right within a reasonable period of time to be defined by national laws or regulations or collective agreements. The Committee therefore requests the Government to adopt the necessary measures to ensure that any provision of national legislation which deprives seafarers of their right to repatriation is limited to the circumstances allowed by the Convention. It also requests the Government to indicate the procedure to be followed and the standard of proof to be applied before a seafarer can be found to be in “serious default of the seafarers’ employment obligations” (Standard A2.5.1, paragraph 3).

Regulation 2.5 and Standard A2.5.2. Repatriation. Financial security. Concerning the 2014 amendments to the Code of the Convention, the Committee notes the Government’s indication that they will partly be implemented by the draft Regulations. The Committee requests the Government to indicate all measures adopted to give full effect to the requirements contained in the 2014 amendments, specifying if the financial security system was determined after consultation with the shipowners’ and seafarers’ organizations concerned.

The Committee also notes the Government’s indication that, according to Section 194 of the Merchant Shipping Act, 2009, a seafarer is considered abandoned a) where a person employed as a seafarer in a Kenyan ship is left behind in a foreign country or is taken to such a country on being shipwrecked, or b) a person who became so employed under an agreement entered into in a foreign country is left behind in Kenya or is taken to Kenya on being shipwrecked. Noting that this Section does not give effect to Standard A2.5.2, paragraph 2, the Committee requests the Government to indicate the measures taken to ensure that the definition of abandonment is in conformity with this provision of the Convention.

The Committee further requests the Government to indicate the provisions in national legislation which require that i) ships that need to be certified according to Regulation 5.1.3 must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider; ii) the financial security system is sufficient to cover outstanding wages and other entitlements, all expenses incurred by the seafarer (including the cost of repatriation), and the essential needs of the seafarers, as defined in Standard A2.5.2, paragraph 9.

Regulation 2.7 and Standard A2.7, paragraph 3. Manning levels. Food and catering. Referring to its previous comment, the Committee observes that there does not seem to be any national provisions implementing Standard A2.7, paragraph 3, and that the DMLC, Part I requires that if there are ten or more crew on board a ship, the shipowner must engage a qualified duly certified cook. The Committee recalls that, in accordance with Standard A2.7, paragraph 3, when determining manning levels, the competent authority shall take into account all the requirements of Regulation 3.2 and Standard A3.2 concerning food and catering, and particularly the obligation to have a fully qualified cook on board. The Committee requests the Government to indicate the manner in which it ensures that effect is given to this provision of the Convention and to provide for each type of ship (passenger, cargo, etc.) the documents specifying the minimum manning levels to ensure the safety of the ship or an equivalent document issued by the competent authority (Standard A2.7, paragraph 1), and to specify the type of ship concerned, its gross tonnage and the number of seafarers usually employed on board.

Regulation 3.1 and the Code. Accommodation and recreational facilities. In its previous comment, the Committee requested the Government to provide detailed information on the progress made in the adoption of thedraft Regulationsgiving effect to the requirements of Regulation 3.1 and Standard A3.1. The Committee notes with interest the detailed provisions of the draft Regulations which are in compliance with the requirements of Regulation 3.1 of the Convention and the Code. The Committee expects that the draft Regulations will be adopted in the near future and that all necessary measures will be taken to ensure full compliance with these provisions of the Convention. The Committee previously requested 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.The Committee notes the Government’s indication that there are no exceptions for ships of less than 200 GT. The Committee however notes that two pieces of legislation seem to coexist regulating ship construction requirements and draws the attention of the Government to the need to avoid any inconsistencies in the applicable provisions so as to ensure full conformity with the Convention. The Committee requests the Government to clarify the articulation of the relevant national legislation on ship construction with respect to crew accommodation for vessels of less than 24 metres and to indicate the measures taken to harmonize its legislation in order to ensure its full conformity with Standard A3.1, paragraphs 20 and 21.

Regulation 3.2 and the Code. Food and catering. In its previous comment, the Committee requested the Government to indicate the measures adopted to give effect to various requirements of Regulation 3.2 and Standard A3.2. The Committee notes that the draft Regulations give effect to most of the requirements of Regulation 3.2 and the Code. The Committee notes more specifically that Regulation 37(1)(g) of the draft Regulations requires that a seafarer engaged as a cook on board the ship must have completed a training course approved or recognized by the Authority, except when the Authority permits a non-fully qualified cook to serve in a specified ship for a specified limited period. The Committee notes however that there is no indication as to the frequency and the kind of cases in which these dispensations can be issued. Recalling that dispensations may only be issued in circumstances of exceptional necessity for a limited period of time (not exceeding one month), provided that the person to whom the dispensation is issued is trained or instructed in areas including food and personal hygiene as well as handling storage of food on board ship, as required under Standard A3.2, paragraph 6, the Committee requests the Government to indicate the measures taken to ensure that dispensations permitting a non-fully qualified cook to serve as a ship’s cook are limited to these cases.

Regulation 4.1 and the Code. Medical care on board ship and ashore. In the absence of more detailed provisions, the Committee requested the Government to ensure that the national legislation gives full effect to the various requirements of Regulation 4.1 and Standard A4.1. The Committee notes that the Government refers to Regulation 41 of the draft Regulations which implements the requirements of the Convention with respect to medical care on board ship and ashore. The Committee expects that this provision of the draft Regulations will be enacted in the very near future.

Regulation 4.2 and the Code. Shipowners’ liability. Noting the absence of detailed statutory provisions, the Committee requested the Government toindicate the measures taken or envisaged to give effect to the requirements of Regulation 4.2 and the Code. The Committee notes that the draft amendment to section 167(2) of the Merchant Shipping Act, 2009 and Regulation 28 of the draft Regulations give effect to the requirements that the shipowner bears the costs of medical care, board and lodging and burial expenses in accordance with Standard A4.2.1, paragraph 1(a)–(d). With respect to the obligation of the shipowner to pay wages where the sickness or injury results in incapacity for work, provided for under Standard A4.2.1, paragraph 3, the Committee observes that the model SEA provided by the Government implements this requirement. The Committee however observes that there are no provisions in the draft Regulations with respect to the payment of wages where the sickness or injury results in incapacity for work and that the current applicable provisions of the Employment Act 2007 and of the Work Injury Benefits Act, 2009 do not ensure that the period of shipowners’ liability, in respect of a seafarer no longer on board, shall not be less than 16 weeks from the day of the injury or the commencement of the sickness. Noting that the national legislation is not in compliance with the Convention, the Committee requests the Government to provide information on any development on measures adopted to ensure, in all cases, a coverage of payment of wages prescribed in Standard A4.2.1, paragraph 3 for a period of not less than 16 weeks as required by Standard A4.2.1, paragraph 4. TheCommittee further notes that Regulation 28(12) of the draft Regulations provides for the exclusion of the shipowner’s liability in the following instances: (a) injury occurred other than in the service of the ship; (b) injury or sickness due to the wilful misconduct of the sick, injured or deceased seafarer; (c) sickness or infirmity intentionally concealed when the engagement is entered into; and (d) in the circumstances provided under section 195 of the Merchant Shipping Act, 2009, where a seafarer left behind in a foreign country or taken to Kenya on being shipwrecked, in accordance with section 194(1), remains there after the expiry of a period of three months from the time he was left behind in such country or taken to Kenya. Noting that this last exception provided for under Regulation 28(12)(d) of the draft Regulations does not correspond to a possible exclusion of the shipowner’s liability in Standard A4.2.1, paragraph 5, the Committee requests the Government to bring its legislation in fully conformity with the Convention.

In relation to the 2014 amendments to the Code of the Convention, the Committee notes that they are partly implemented by the draft Regulations. The Committee also notes the Government’s indication that the evidence of financial security is provided under the Twelfth Schedule of the Draft regulations. It notes however that such schedule refers to financial security under Regulation 2.5 and not to the financial security that must be provided by shipowners under Regulation 4.2. The Committee therefore requests the Government to indicate the measures adopted to give effect to Standard A4.2.1, paragraphs 8 and 14, and Standard A4.2.2.

Regulation 4.4 and the Code. Access to shore-based welfare facilities. The Committee previously requested the Government to provide information on the evaluation of needs for seafarers’ welfare facilities in ports in Kenya, in accordance with the requirement ofStandard A4.4, paragraphs 2 and 3.The Committee notes the Government’s indication that Kenya has established the Kenya Ports Seafarers Welfare Board in 2020 with the objective to ensure that both serving (including those serving on board foreign ships) and retired seafarers (and/or their dependents) are receiving the highest possible levels of welfare within the resources available. Its functions include the coordination, review and planning of the welfare activities within the ports in Kenya, among which the development of frameworks to address the needs with respect to seafarers’ welfare while in Kenyan Ports, the review of the adequacy and the use of existing port welfare facilities within the ports and making recommendations on proposals for new services or changes to existing services or upgrade of existing facilities. The Committee takes note of this information, which addresses its previous request.

Regulation 4.5 and the Code. Social security. The Committee previously requested the Government to provide detailed information on the national measures adopted or envisaged to give full effect to the requirement ofStandard A4.5, paragraph 3. The Committee notes that the Government refers to Regulation 40 of the draft Regulations which provides that a seafarer who is a citizen of Kenya or is ordinarily resident in Kenya and is employed partly in Kenya and partly outside Kenya shall be covered under the social security scheme established under the National Social Security Fund Act, 2013. While noting this information, the Committee however observes the provisions of the National Social Security Fund Act, 2013 do not cover all seafarers, giventhat young seafarers under the age of 18 seem to be excluded, as well as seafarers ordinarily resident in the country but working for shipowners residing or with place of business outside Kenya. The Committee further observes that the WorkInjury Benefits Act, No. 13 of 2007 also seems to exclude seafarers ordinarily resident in Kenya but working on foreign flagged ships. The Committee notes the Government’s indication that Kenya does not currently participate in any bilateral or multilateral arrangements in relation to social security protection, including the maintenance of rights acquired or in the course of acquisition. The Committee therefore requests the Government to provide clarifications as to the coverage of seafarers who are ordinarily resident in Kenya, including those under the age of 18 and those that work on ships flying a foreign flag.

Regulation 5.1 and the Code. Flag State responsibilities. Noting that the current national provisions do not give effect to Regulation 5.1, the Committee requested the Government to provide information on the adoption of the draft Regulations and any other measures adopted to implement these requirements of the Convention. The Committee observes that the provisions of the draft Regulations set standards for the inspection and certification of working and living conditions for seafarers on ships in accordance with Regulations 5.1.3 and 5.1.4. The Committee expects that the draft Regulations will be adopted in the near future and requests the Government to adopt all necessary measures to ensure compliance with Regulation 5.1 and the Code.

Regulation 5.1.2 and the Code. Flag State responsibilities. Authorization of recognized organizations. The Committee notes that, in reply to its previous comments, the Government indicates that the draft Merchant Shipping (Recognized Organization) Regulations give effect to the various requirements of Regulation 5.1.2 and the Code. The Government further indicates that the Authority has established a Recognized Organization Oversight Committee that processes applications, advises on authorization, and oversees the work of Recognized Organizations including the requirement to provide periodical reports. The Committee expects that these draft Regulations will be enacted in the very near future.

Regulation 5.1.3 and Standard A5.1.3, paragraph 10. Flag State responsibilities. Declaration of Maritime Labour Compliance. Content. The Committeerequested the Government to indicate the measures taken or envisaged to amend its DMLC, part I in order to give full effect to this provision of the Convention. The Committee takes note of the sample DMLC, Part I provided by the Government implementing the requirements of Standard A5.1.3, paragraph 10, which addresses its previous request.

Regulation 5.1.4 and the Code. Flag State responsibilities. Inspection and enforcement. Observing that the national provisions do not give effect to the detailed requirement of Regulation5.1.4 and the Code, the Committee previously requestedthe Government to provide detailed information on the national measures adopted to give effect to this Regulation and the Code.The Committee observes that Regulation 49 of the draft Regulations implements the requirement of Standard A5.1.4, paragraph 7(c) that inspectors shall be empowered to detain a ship if it is not in compliance with the Regulations. The Committee however observes that the Government has not provided sufficient information in particular with respect to the manner in which it is ensured that inspectors have the training, competence, terms of reference, powers, status and independence necessary or desirable so as to enable them to carry out their duties (Standard A5.1.4, paragraphs 3, 6, 11(a) and 17), as well as the procedures followed to receive and investigate complaints (Standard A5.1.4, paragraphs 5, 10, 11(b) and 12). The Committee notes that the Government refersto anappointment letter for inspectors and to a copy of national guidelines issued to inspectors, which however have not been supplied with the Government’s report. The Committee further observes that the intervals not exceeding three years at which inspections have to be carried out (Standard A5.1.4, paragraph 4) seem to only apply to certified ships. Finally, the Committee notes that Regulation 7(5) of the draft Regulations provides that ships below 500 gross tonnage shall be inspected and surveyed in accordance with the Merchant Shipping (Small Vessel Safety) Regulations and are therefore not the object of inspections according to the MLC, 2006. The Committee recalls that pursuant to Regulation 5.1.4 and Standard A5.1.4, all ships covered by the Convention, including those of less than 500 gross tonnage, are subject to inspection for compliance with all relevant national requirements implementing the MLC, 2006 and have to be inspected at least every three years.The Committee once again requests the Government to indicate the measures taken to give full effect to Regulation 5.1.4 and the Code, and to clarify how ships of less than 500 gross tonnage are inspected for compliance with the requirements of the Convention.

Regulation 5.1.6. Flag State responsibilities. Marine casualties. The Committee notes that, in reply o its previous comments, the Government indicates that requirements for the conduct of an official inquiry into cases of serious marine casualties involving ships flying the Kenyan flag are provided in section 421 of the Merchant Shipping Act, 2009 (according to which the Director General may cause the conduct of a preliminary inquiry), and in section 422 (according to which the Minister may cause a formal investigation by a Board). Noting that according to the existing legislation official inquiries are optional, the Committee requests the Government to adopt the necessary measures to give full effect to Regulation 5.1.6 and to clarify whether reports concerning serious marine casualties are normally made public.

Regulation 5.2.1 and the Code. Port State responsibilities. Inspections in port. Noting that the Government does not provide information on this point, the Committee reiterates its previous request to the Government.

Regulation 5.2.2 and the Code. Port State responsibilities. Onshore seafarer complaint-handling procedures. The Committee previously requested the Government to indicate the measures taken to give effect to the detailed requirements of Regulation 5.2.2 and Standard A5.2.2.The Committee notes that Regulation 48 of the draft Regulations establishes requirements for onshore seafarer complaint-handling procedures. The Committee expects that the draft Regulations will be adopted in the very near future and that all necessary measures will be adopted to fully comply with these requirements of the Convention.