Observation (CEACR) - adoptée 2002, publiée 91ème session CIT (2003)

Convention (n° 138) sur l'âge minimum, 1973 - Kenya (Ratification: 1979)

The Committee notes with interest the Children Act, 2001, section 2 of which defines "child" as any human being under the age of 18 years. It notes that the second part of the Act, entitled "Safeguards for the rights and welfare of the child", addresses the protection of the child against economic exploitation and any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development (section 10(1)); the protection of the child against recruitment and participation in armed conflicts (section 10(2)); the protection of the child against any other form of exploitation including sale, trafficking or abduction by any person (section 13(1)); and the protection of the child against sexual exploitation and use in prostitution (section 15). The Committee notes that, under the terms of section 20 of the Act, where any person wilfully or as a consequence of culpable negligence infringes any of the provisions of sections 5 to 19 such person shall be liable to imprisonment not exceeding 12 months or to a fine of 50,000 shillings, or both. The Committee also notes that, by virtue of section 22(1) of the Act, if any person alleges that any of the provisions of sections 4 to 19 (inclusive) of the Act has been, is being or is likely to be contravened in relation to a child, then without prejudice to any other action that is lawfully available in this respect, that person may apply to the High Court for redress on behalf of the child.

The Committee also notes the ratification by Kenya on 7 May 2001 of the Worst Forms of Child Labour Convention, 1999 (No. 182).

With reference to its previous comments, the Committee notes the information provided by the Government representative to the Committee on the Application of Standards of the Conference in 2001 that the Government had given up its draft amendment to section 2 of the Employment Act, 1976, to define the term "child" as a person under 15 years, instead of under 16 years of age, which would have had the effect of lowering the minimum age for admission to employment or work to 15 years. It notes that in its last report the Government confirms that it is no longer considering this amendment and that it will maintain the legislation in conformity with the Convention.

In its previous observation, the Committee noted the information provided by the Government that the Employment Act of 1976 (Chapter 226) and the Employment (Children) Rules of 1977 would be revised in the framework of a general revision of the labour legislation. The Committee once again requests the Government to provide information on the progress made with this revision, and on the other points that it raised.

Article 2, paragraphs 1 and 3, of the Convention. 1. The Committee notes, with regard to the extension of the minimum age for admission to employment or work beyond industrial enterprises, that the Government representative informed the Conference Committee on the Application of Standards in 2001 that the Task Force established to review 23 chapters of the labour legislation would duly take into account this suggestion and that the Task Force would be given up to the end of December this year at the latest to complete its work. The Committee notes that in its last report the Government states that it has made proposals to the Task Force with a view to extending the legislation respecting the minimum age for admission to employment or work to other sectors of the economy. The Committee recalls that it has been drawing the Government’s attention for many years to the fact that section 25(1) of the Employment Act, read in conjunction with section 2 of the Act, limits the application of the minimum age for admission to employment or work to industrial enterprises. It therefore expresses the firm hope that the Government will be in a position to provide information in its next report on the measures taken by the Task Force to extend the application of the minimum age for admission to employment or work to all sectors of the economy.

2. In its previous comments, the Committee noted that the Ministry of Education was preparing draft legislation to make primary education compulsory. The Committee notes that in its last report the Government states that this draft legislation has still not been adopted. It notes that section 7(2) of the Children Act, 2001, provides that every child shall be entitled to free basic education which shall be compulsory, in accordance with article 28 of the United Nations Convention on the Rights of the Child. The Committee notes that these provisions do not specify precisely the age at which compulsory schooling ceases. It notes the information contained in the 1998/1999 Child Labour Report, published by the Central Bureau of Statistics of the Ministry of Finance and Planning in June 2001, and in the document entitled "Child labour policy", provided in the same year, indicating that compulsory primary school is for children from 6 to 13 years of age. There accordingly appears to be a difference of one or more years in Kenya between the age of completion of compulsory schooling (13 or 14 years of age) and the minimum age for admission to employment or work (16 years). The Committee recalls that, under Paragraph 4 of the Minimum Age Recommendation, 1973 (No. 146), "full-time attendance at school or participation in approved vocational orientation or training programmes should be required and effectively ensured up to an age at least equal to that specified for admission to employment in accordance with Article 2 of the Minimum Age Convention, 1973." In this context, the Committee requests the Government to provide information on the progress achieved with the above draft legislation, indicating the age of completion of compulsory schooling.

3. The Committee notes that section 10(5) of the Children Act, 2001, defines the term "child labour" as any situation where a child provides labour in exchange for payment. It notes that according to the 1998/1999 Child Labour Report referred to above, most of the children who work, or 78.7 per cent, work in family agricultural activities or enterprises and are not paid. The majority of children who work are therefore excluded from the definition of child labour contained in section 10(5) of the Children Act, 2001. Furthermore, according to the same report, 1.6 per cent of children work on their own account. The Committee therefore requests the Government to take the necessary measures to secure to these children the protection afforded by the Convention by amending the definition of child labour contained in section 10(5) of the Children Act, 2001.

Article 2, paragraph 1, and Article 3. 4. The Committee noted in previous comments, under Article 7, that section 3(1) of the Employment (Children) Rules, 1977, allows the employment of children with the prior written permission of an authorized officer, and that the only restrictions are that such employment should not cause the children to reside away from parents without their approval, that permission for work in a bar, hotel, restaurant, etc., needs the consent of the Labour Commissioner and that such permit should be renewed annually. The Committee wishes to emphasize that such permits are incompatible, not only with the conditions set out in Article 7, paragraph 1, but also with the provisions of Article 2, paragraph 1, which are mandatory, as Kenya has not availed itself of any of the flexibility clauses contained in Articles 4 and 5. The Committee notes that the provisions of section 3(1) of the above Rules undermine the prohibition set out in Article 2, paragraph 1, of the Convention and the provisions of the national legislation establishing the minimum age for admission to employment at 16 years. It is therefore bound to emphasize the fact that no permit should be issued by any person, whether they are parents, guardians or the Labour Commissioner, which have the effect of allowing employment or work: firstly, by persons under 13 years of age, irrespective of the type of work or employment; secondly, for persons between 13 and 15 years of age, unless this is on light work in strict conformity with the conditions set out in Article 7, paragraph 1; and thirdly, for persons of between 16 and 18 years of age on any of the types of employment or work covered by Article 3, paragraph 1, unless this is in strict conformity with the conditions set out in Article 3, paragraph 3. The Committee therefore requests the Government to take the necessary measures to repeal the above provisions as soon as possible.

Article 7. 5. The Committee recalls that, with regard to light work: firstly, Article 7, paragraph 1, only provides for the possibility of admitting young persons of at least 13 years of age to light work, whereas the Employment (Children) Rules, 1977, do not limit the age of children who may thus be employed; secondly, Article 7, paragraphs 1 and 3, only authorize the employment of children who have not reached the general minimum age on light work (that is work which is not likely to be harmful to their health or development, nor to prejudice their attendance at school or their capacity to benefit from the instruction received), and that such work must be determined by the competent authority, whereas the above Rules do not limit the employment of children under the legal age to light work, but only refer to the conditions mentioned in paragraph 4 above; thirdly, also under Article 7, paragraph 3, the competent authority shall prescribe the number of hours during which and the conditions in which such employment or work may be undertaken. The Committee therefore expresses the firm hope that the Government will take the necessary measures on the occasion of the revision of the national labour legislation to bring its laws and regulations into full conformity with the Convention on each of these points.

Article 3. 6. The Committee has noted above that section 10(1) of the Children Act, 2001, provides that every child shall be protected from economic exploitation and any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development. However, the Committee notes that despite its reiterated comments for many years, and despite the fact that the Government admitted in its 1990 report the need to determine, after consultation with the organizations of employers and workers concerned, the types of employment or work covered by Article 3, paragraph 1, no measure has yet been taken to this effect. It therefore expresses the firm hope that the tripartite national Task Force, after consultations with the organizations concerned, will determine the types of work to be prohibited for young persons under 18 years of age, in accordance with the Government’s previous indications. The Committee also notes that section 10(4) of the Children Act, 2001, provides that the Minister shall make regulations in respect of periods of work and legitimate establishments for such work by children above the age of 16 years. The Committee requests the Government to indicate whether the work referred to consists of hazardous work, as it seems to imply. If so, it requests the Government to indicate whether the regulations referred to in section 10(4) of the Children Act, 2001, have been issued by the competent Minister and, if so, to provide a copy. It also requests the Government to indicate the provisions which require that the health, safety and morals of young persons between the ages of 16 and 18 years engaged in these types of work are to be fully protected and that the young persons must have received adequate specific instruction or vocational training in the relevant branch of activity, in accordance with Article 3, paragraph 3.

Part V of the report form. 7. The Committee notes with interest the detailed information contained in the 1998/1999 Child Labour Survey, published by the Central Bureau of Statistics of the Ministry of Finance and Planning in June 2001, and in the document entitled "Child labour policy". It notes the statistics reporting 1.9 million children between the ages of five and 17 years who work, including children working without pay. It notes that, according to the statistics, the majority of working children are between the ages of ten and 14 years (43.6 per cent). The majority of working children have not completed primary education (76.8 per cent). Of children who work, 38.5 per cent work more than 14 hours a week, and 25.6 per cent work between 25 and 41 hours a week. A total of 78.7 per cent of working children are in family farms and enterprises and are not paid, although 18.5 per cent are paid and 1.6 per cent work on their own account. The majority of children who work are in agriculture, fishing and domestic service. The Committee notes the information on the children engaged in hazardous work (fishing and construction). It notes that 1.3 million working children do not attend school and that 588,400 combine school and work. The Committee requests the Government to continue providing information on the application of the Convention in practice.

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