Migration for Employment Convention (Revised), 1949 (No. 97) - Kenya (RATIFICATION: 1965)

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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).

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

Repetition

Article 1 of the Convention. Information on national policies, laws and regulations. The Committee notes the adoption of the Employment Act, 2007, which provides that migrant workers shall enjoy equal treatment in employment and occupation, and the Labour Institutions Act, 2007, which establishes a National Labour Board that has functions related to the issuance of immigration entry permits and work permits and provides for the establishment of a Work Permits Committee. The Committee also notes the adoption of the Kenya Citizenship and Immigration Act, 2011, which contains provisions on prohibited immigrants and inadmissible persons, entry and removal of immigrants and issuance of permits. It also notes the Kenya Citizens and Foreign Nationals Management Service Act No. 31 of 2011 providing that the Service will be responsible for the implementation of policies, laws and any other matters related to citizenship and immigration. The Committee further notes that the Government refers to the Draft Diaspora Policy and the Employment Policy and indicates that, according to the Draft Diaspora Policy, the number of Kenyans in the diaspora is estimated at 3 million, which represents inward remittances of US$1.9 billion, accounting for 5.4 per cent of gross domestic product. The objective of the Diaspora Policy is to mainstream the Kenyan diaspora in the development agenda so that it makes a significant contribution to the development of the country. The External Remittances and Foreign Employment Committee will help in this process. The Government further indicates that the coordination of diaspora-related issues is under the realm of the Ministry of Foreign Affairs. It will also oversee the formation of the National Diaspora Council of Kenya (NADICOK) which will be constituted by several governmental institutions and responsible for monitoring, evaluating and developing the National Plan of Action. The Committee also notes that the Draft Employment Policy Strategy seeks to ensure greater coordination among all the public entities that deal with migration issues and to harmonize and place all foreign employment functions under the National Employment Authority. The Committee requests the Government to provide detailed information on the practical application of all the laws mentioned above and the functioning of the governmental entities described, namely the National Labour Board, the Work Permits Committee and especially the Kenya Citizens and Foreign Nationals Management Service and the policies and measures implemented by it.

Article 2. Services and assistance to migrant workers. According to the Diaspora Policy, a large number of Kenyan migrant workers lack the necessary work permits and documentation. To address this situation, the Government will strengthen and enhance the capacity of consulates so as to provide comprehensive and effective services to all Kenyans living abroad, and will initiate dialogue with destination countries to ensure protection of Kenyans. The Government indicates that the Diaspora Desk established in the Ministry of Foreign Affairs has the mandate of providing information on employment opportunities existing in foreign countries and initiating bilateral arrangements with countries of destination. Moreover, a full set of institutions, namely the Ministry of Labour, Ministry of Youth Affairs, Ministry of Foreign Affairs, Private Employment Agencies and the Kenya Association of Private Employment Agencies, provide Kenyan migrant workers with information. The Committee further notes that the Government has renewed its commitment to work with the International Organization for Migration (IOM) in providing pre-departure orientation for migrant workers from Kenya. The IOM has already provided this kind of training to more than 2,700 unskilled and semi-skilled migrant workers destined for the Middle East, United Arab Emirates, Afghanistan and the Gulf States, since 2008. With respect to the Employment Policy, the Committee notes that one of its strategies consists in providing orientation on foreign employment and re-entry programmes. Furthermore, the Government is considering the possibility of entering into bilateral agreements with countries of destination to explore the possibility of transferring social security contributions from Kenyans to Kenya on completion of their contracts. As regards foreign workers who wish to work in Kenya, the Government indicates that they are provided with information concerning visa requirements, job opportunities, terms and conditions of employment and rights and obligations. The Committee requests the Government to indicate whether access to the services for migrant workers enumerated is free of charge and how it is ensured that they provide migrant workers with sufficient, accurate and accessible information.

Article 3. Misleading propaganda. The Committee notes that the Labour Institutions Act, 2007, has introduced provisions in Part VII to regulate employment agencies; these include requirements for registration, obligations for directors, competencies for employment officers, appeals and offences. The Government indicates that it supports private employment agencies, with which it meets regularly to deal with different issues including policy and legislation, recruitment and placement as well as pre-departure orientations. The Government further indicates that the Kenya Association of Private Employment Agencies has developed a constitution and a code of conduct to guide its members. The Committee requests the Government to provide a copy of the code of conduct adopted by the Kenya Association of Private Employment Agencies. The Committee also requests the Government to provide any additional information regarding the measures adopted or envisaged to protect migrant workers against any abuse and the existing penalties for offences, particularly with regard to the dissemination of misleading propaganda. While noting the provisions designed to address trafficking in persons in the Kenya Citizenship and Immigration Act, 2011, the Committee requests the Government to provide further information on any policies and legislation adopted related to trafficking in persons that protect both immigrant and emigrant workers against abuse resulting from false information on the migration process.

Article 5. Medical services. The Committee notes that according to section 48(1)(d) an immigration officer shall have the power to require any person seeking to enter Kenya to submit to examination by a medical practitioner. Section 33(2)(a) provides that a person who refuses to submit to such examination will be considered as an inadmissible person. The Committee requests the Government to specify under which conditions a medical examination can be required and which kind of medical exams could be requested.

Article 6. Equality of treatment. The Committee notes that section 5 of the Employment Act, 2007, provides for equality of opportunity for migrant workers and members of their family lawfully in Kenya. It also provides for equal remuneration for work of equal value. The Committee requests the Government to provide information on the practical application of the Employment Act, 2007, with respect to the items listed in Article 6(1)(a)–(d). The Committee also requests the Government to indicate if the Employment Policy has become fully operational and to give details on the practical measures taken to implement its component on equality of opportunity and treatment for migrant workers.

Article 8. Maintenance of residence in the case of incapacity for work. The Committee notes the Government’s indication that migrant workers admitted on a permanent basis have the right of residence in the event of unfitness for employment. Taking into account that the Government further indicates that such workers may apply for the relevant categories of entry permits under the Immigration Act, 2011, the Committee requests the Government to confirm that the right of migrant workers admitted on a permanent basis will be maintained in the event of incapacity for work.

Enforcement. In its previous comments, the Committee requested the Government to provide statistical information on the results of labour inspections, as well as available information disaggregated by sex, country of origin and sector of activity on the number of migrant workers. The Committee notes that the Government indicates that no such information is available and requests ILO technical assistance in this respect. The Committee requests the Government to provide information on the work of the labour inspectorate related to migrant workers and hopes that the technical assistance required by the Government will be provided soon.

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Article 1 of the Convention. Information on national policies, laws and regulations. The Committee notes the adoption of the Employment Act, 2007, which provides that migrant workers shall enjoy equal treatment in employment and occupation, and the Labour Institutions Act, 2007, which establishes a National Labour Board that has functions related to the issuance of immigration entry permits and work permits and provides for the establishment of a Work Permits Committee. The Committee also notes the adoption of the Kenya Citizenship and Immigration Act, 2011, which contains provisions on prohibited immigrants and inadmissible persons, entry and removal of immigrants and issuance of permits. It also notes the Kenya Citizens and Foreign Nationals Management Service Act No. 31 of 2011 providing that the Service will be responsible for the implementation of policies, laws and any other matters related to citizenship and immigration. The Committee further notes that the Government refers to the Draft Diaspora Policy and the Employment Policy and indicates that, according to the Draft Diaspora Policy, the number of Kenyans in the Diaspora is estimated at 3 million, which represents inward remittances of US$1.9 billion, accounting for 5.4 per cent of gross domestic product. The objective of the Diaspora Policy is to mainstream the Kenyan Diaspora in the development agenda so that it makes a significant contribution to the development of the country. The External Remittances and Foreign Employment Committee will help in this process. The Government further indicates that the coordination of Diaspora-related issues is under the realm of the Ministry of Foreign Affairs. It will also oversee the formation of the National Diaspora Council of Kenya (NADICOK) which will be constituted by several governmental institutions and responsible for monitoring, evaluating and developing the National Plan of Action. The Committee also notes that the Draft Employment Policy Strategy seeks to ensure greater coordination among all the public entities that deal with migration issues and to harmonize and place all foreign employment functions under the National Employment Authority. The Committee requests the Government to provide detailed information on the practical application of all the laws mentioned above and the functioning of the governmental entities described, namely the National Labour Board, the Work Permits Committee and especially the Kenya Citizens and Foreign Nationals Management Service and the policies and measures implemented by it.

Article 2. Services and assistance to migrant workers. According to the Diaspora Policy, a large number of Kenyan migrant workers lack the necessary work permits and documentation. To address this situation, the Government will strengthen and enhance the capacity of consulates so as to provide comprehensive and effective services to all Kenyans living abroad, and will initiate dialogue with destination countries to ensure protection of Kenyans. The Government indicates that the Diaspora Desk established in the Ministry of Foreign Affairs has the mandate of providing information on employment opportunities existing in foreign countries and initiating bilateral arrangements with countries of destination. Moreover, a full set of institutions, namely the Ministry of Labour, Ministry of Youth Affairs, Ministry of Foreign Affairs, Private Employment Agencies and the Kenya Association of Private Employment Agencies, provide Kenyan migrant workers with information. The Committee further notes that the Government has renewed its commitment to work with the International Organization for Migration (IOM) in providing pre-departure orientation for migrant workers from Kenya. The IOM has already provided this kind of training to more than 2,700 unskilled and semi-skilled migrant workers destined for the Middle East, United Arab Emirates, Afghanistan and the Gulf States, since 2008. With respect to the Employment Policy, the Committee notes that one of its strategies consists in providing orientation on foreign employment and re-entry programmes. Furthermore, the Government is considering the possibility of entering into bilateral agreements with countries of destination to explore the possibility of transferring social security contributions from Kenyans to Kenya on completion of their contracts. As regards foreign workers who wish to work in Kenya, the Government indicates that they are provided with information concerning visa requirements, job opportunities, terms and conditions of employment and rights and obligations. The Committee requests the Government to indicate whether access to the services for migrant workers enumerated is free of charge and how it is ensured that they provide migrant workers with sufficient, accurate and accessible information.

Article 3. Misleading propaganda. The Committee notes that the Labour Institutions Act, 2007, has introduced provisions in Part VII to regulate employment agencies; these include requirements for registration, obligations for directors, competencies for employment officers, appeals and offences. The Government indicates that it supports private employment agencies, with which it meets regularly to deal with different issues including policy and legislation, recruitment and placement as well as pre-departure orientations. The Government further indicates that the Kenya Association of Private Employment Agencies has developed a constitution and a code of conduct to guide its members. The Committee requests the Government to provide a copy of the code of conduct adopted by the Kenya Association of Private Employment Agencies. The Committee also requests the Government to provide any additional information regarding the measures adopted or envisaged to protect migrant workers against any abuse and the existing penalties for offences, particularly with regard to the dissemination of misleading propaganda. While noting the provisions designed to address trafficking in persons in the Kenya Citizenship and Immigration Act, 2011, the Committee requests the Government to provide further information on any policies and legislation adopted related to trafficking in persons that protect both immigrant and emigrant workers against abuse resulting from false information on the migration process.

Article 5. Medical services. The Committee notes that according to section 48(1)(d) an immigration officer shall have the power to require any person seeking to enter Kenya to submit to examination by a medical practitioner. Section 33(2)(a) provides that a person who refuses to submit to such examination will be considered as an inadmissible person. The Committee requests the Government to specify under which conditions a medical examination can be required and which kind of medical exams could be requested.

Article 6. Equality of treatment. The Committee notes that section 5 of the Employment Act, 2007, provides for equality of opportunity for migrant workers and members of their family lawfully in Kenya. It also provides for equal remuneration for work of equal value. The Committee requests the Government to provide information on the practical application of the Employment Act, 2007, with respect to the items listed in Article 6(1)(a)–(d). The Committee also requests the Government to indicate if the Employment Policy has become fully operational and to give details on the practical measures taken to implement its component on equality of opportunity and treatment for migrant workers.

Article 8. Maintenance of residence in the case of incapacity for work. The Committee notes the Government’s indication that migrant workers admitted on a permanent basis have the right of residence in the event of unfitness for employment. Taking into account that the Government further indicates that such workers may apply for the relevant categories of entry permits under the Immigration Act, 2011, the Committee requests the Government to confirm that the right of migrant workers admitted on a permanent basis will be maintained in the event of incapacity for work.

Parts III–V of the report form. In its previous comments, the Committee requested the Government to provide statistical information on the results of labour inspections, as well as available information disaggregated by sex, country of origin and sector of activity on the number of migrant workers. The Committee notes that the Government indicates that no such information is available and requests ILO technical assistance in this respect. The Committee requests the Government to provide information on the work of the labour inspectorate related to migrant workers and hopes that the technical assistance required by the Government will be provided soon.

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1. Article 1 of the Convention. Information on national policies, laws and regulations. The Committee notes the Government’s statement that the draft Employment Bill includes provisions to ensure the protection of migrant workers and their families who are lawfully in the country. It further notes the information contained in the Government’s report that the draft Sessional Paper No. 6 of 2006 on employment policy and strategies for Kenya includes the development of policies and legislation to provide a framework for promoting labour migration and combating human trafficking. Strategies include, among others, the facilitation of regulations and operations of foreign employment as well as training and skills programmes for the external labour market. Other strategies in the policy paper include the posting of labour attachés in selected countries; the identification of Kenyan diaspora and developing policies to enable them to participate in national development, enhancing the administration of foreign employment; and entering into bilateral agreements with receiving countries to ensure protection of Kenyan migrant workers. The Government further indicates that it has established a diaspora remittances committee and is developing a draft diaspora policy. The Committee is aware that new labour laws including the Employment Bill have been passed by Parliament. The Committee asks the Government to provide copies of the new employment legislation with an indication of the relevant provisions applying the Convention as well as a copy of the Diaspora Policy and the new Employment Policy, once adopted, and information on the measures and programmes to implement the strategies relating to labour migration. Please also provide information on the activities of the diaspora remittances committee.

2. Article 2. Services and assistance to migrant workers. The Committee notes that the Government has established a diaspora desk in the Ministry of Foreign Affairs to deal with diaspora issues. The Committee asks the Government to provide further information on the specific mandate and services and assistance provided by the diaspora desk to Kenyan workers seeking employment abroad, as well as any other information on the services and assistance provided to migrants coming to Kenya for employment.

3. Article 3. Steps taken against misleading propaganda. The Committee notes from the Government’s report that the draft Employment Policy provides for the development of polices and legislation to combat human trafficking and that the Government has supported the Kenya Association of Private Employment Agencies (KAPEA) to prepare a code of conduct and a constitution. In view of the growing role of private agencies in the international migration process, the Government is asked to give additional information regarding the measures adopted or envisaged to regulate the activities of private agencies, with a view to protecting migrant workers against any abuse and the penalties for offences, particularly with regard to the dissemination of erroneous and misleading propaganda. Please also provide further information on any policies and legislation adopted relating to human trafficking that protect both immigrant and emigrant workers against abuse resulting from false information on the migration process.

4. Article 6. Equality of treatment. The Committee notes the Government’s statement that the Employment Bill places a duty to all persons involved in employment administration to promote and guarantee equality of opportunities for all persons who, as migrant workers or as members of their families are in Kenya. It also provides a definition of discrimination and prohibits direct or indirect discrimination against an employee in employment policy or practice. Noting further from the Government’s report on the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143), that the draft Employment Policy has a component on equality of opportunity and treatment for migrant workers, the Committee hopes that the Employment Policy, once adopted, and the new Employment Act will ensure that migrant workers lawfully, in the country, will be no less favourable than that applied to the country’s nationals in respect of remuneration, trade union rights, accommodation, taxes, social security and access to the justice system, regardless of their nationality, race, religion or sex in accordance with Article 6(1) of the Convention. The Committee asks the Government to supply a copy of the new legislation and information on its practical application as to the items listed in paragraphs (a)–(d) of Article 6(1), as well as information on the practical measures taken to implement the component on equality of opportunity and treatment for migrant workers under the new Employment Policy.

5. Article 8. Maintenance of residence rights of permanent workers. The Committee recalls paragraphs 600–608 of its General Survey on migrant workers of 1999 concerning continued residence in the case of incapacity for work. In the absence of any further information on this point, the Committee reiterates its requests to the Government to supply information on the practical application of maintenance of right of residence in the event of unfitness for employment of migrant workers admitted on a permanent basis.

6. Parts III–V of the report form. Enforcement and practical application. The Committee notes from the information supplied by the Government in the International Labour Migration Survey (2003) that in Kenya, there is a regular labour inspection system covering all employees, whether nationals or migrant workers. The Committee requests statistical information on the results of these inspections, as well as available information on the number, places of origin, and sector of activity disaggregated by sex of migrant workers.

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1.  The Committee notes that, given the high rate of unemployment, the Government is implementing a new policy facilitating migration of Kenyans abroad and, since 1999, the Directorate of Personnel Management of the Office of the President has been involved actively in identifying and advertising employment opportunities abroad for the qualified Kenyans interested and forwarding applications to the employers concerned. In the framework of this new strategy, about 50 Kenyan teachers have emigrated to the Seychelles. In parallel with the new strategy, the issuance of work permits to foreigners has been restricted to specific technical areas where skills are lacking or not available in Kenya. The Committee also notes that the Government is in process of negotiating with the United Republic of Tanzania and Uganda agreements on migration in the subregion in the framework of the East-African Cooperation Treaty. It recalls that in its 1999 General Survey on migrant workers, it noted that international migration for employment had undergone significant changes in extent, direction and nature since the adoption of the Convention (see paragraphs 5-17 of the General Survey). It would be grateful if the Government would supply information on the content and application of its national policy and legislation on emigration and immigration in view of new migratory flow trends, as well as specific information, such as statistics.

2.  The Committee also asks the Government to supply information on the practical application of its policy of equality of treatment between national workers and migrant workers in the matters enumerated in Articles 6(a), (b), (c) and (d) of the Convention. Recalling that under paragraph 1 of this Article, any State which has ratified the Convention undertakes to apply, without discrimination in regard to nationality, race, religion or sex, treatment no less favourable than that which it applies to its own nationals in respect of the matters listed in subparagraphs (a) to (d) of the Article, the Committee would be grateful if the Government would indicate the measures taken or envisaged to ensure that female migrant workers are treated on the same equal footing as their male counterparts, foreigner or other, in regard to their living conditions and conditions of work, social security, employment-linked taxes and access to legal proceedings - in view of the growing feminization of migrant workers (see paragraphs 20-23 and 658 of the 1999 Committee of Experts General Survey on migrant workers).

3.  Article 8.  This provision is one of those most frequently mentioned by governments as raising difficulties of application when the General Survey was conducted (paragraphs 600-608 of the survey). The Committee therefore requests the Government to supply information on the practical application of maintenance of right of residence in the event of unfitness for employment of migrant workers admitted on a permanent basis.

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The Committee notes that since 1978 no detailed report containing up-to-date information and covering the subject-matter of the Convention has been received. The Government has mostly referred to previous reports. The Committee presumes that, since the date of the last detailed report, there have been important changes - at least in practice - and would be grateful if the Government would provide a full report taking account of the report form approved by the Governing Body.