Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

Minimum Age Convention, 1973 (No. 138) - Kenya (Ratification: 1979)

1. Article 2 of the Convention. (1) The Committee notes with interest the Government's statement that the Ministry of Education is intending to introduce legislation on compulsory primary education. It asks the Government to continue to supply information on developments in this regard.

(2) The Committee notes, however, that the Government indicates, at the same time, that proposals have been made to the competent authority to amend section 2 of the Employment Act to define a "child" as a person under 15 instead of 16 years. This would result in lowering the minimum age for employment or work under the Employment Act. The Committee would draw the Government's urgent attention to the provisions of Article 2(2) of the Convention which allows ratifying States to declare a minimum age higher than that initially specified, but which does not permit a change towards a lower minimum age. Therefore, the minimum age of 16 years having been declared at the time of ratification, the proposed amendment would cause a serious discrepancy between the national legislation and Article 2(1) of the Convention. The Committee requests the Government to indicate any measures taken or envisaged to maintain the legislative conformity with the Convention.

(3) The Committee notes the Government's statement that the scope of section 25(1), which fixes the minimum age for employment would be extended to all sectors of the economy by the proposed amendment mentioned above. It asks the Government to continue to supply information on any progress made in this respect.

2. Article 3. The Committee recalls that under this provision of the Convention, the Government has the obligation to determine, after consultation with the employers' and workers' organizations, the types of work that are prohibited for young persons under 18 years of age as being prejudicial to their health, safety or morals. It notes that, although the Government agrees to this necessity, no such consultations have been made to date. The Committee hopes that the Government will soon be able to report the progress made in this regard.

3. Article 7. The Committee notes the Government's statement that it does not consider it time yet to make legislation on the employment of children under 15 on light work. It recalls however that section 3 of the Employment (Children) Rules of 1977 already allows the employment of children with a prior written permission of an authorized officer. The only restrictions are that such employment should not cause the child to reside away from parents without approval, that permission for work in a bar, hotel, restaurant, etc. needs the consent of the Labour Commissioner, and that such permits should be annually renewed. The Committee points out that this section of the Rules is not in conformity with the Convention on several aspects: firstly, the Convention allows, under Article 7(1), the admission to light work of persons only from 13 years of age, while the above Rules do not limit the ages of the children that may be employed; secondly, Article 7(1) and (3) permits the employment of children under the general minimum age only in regard to light work (that is, not likely to be harmful to their health or development and not such as to prejudice their school attendance or their capacity to benefit from the instruction received), which should be determined by the competent authority, while the above Rules do not even limit such employment of under-age children to light work, but only provide for the above-mentioned conditions; and thirdly, also under Article 7(3) of the Convention, the competent authority should prescribe the number of hours and the conditions of such employment or work. The Committee therefore hopes that the national legislation will be brought into line with the Convention also regarding these points.

4. Application of the Convention in practice. The Committee also asks the Government to provide information on the application in practice of the national legislation that gives effect to the provisions of the Convention. Please include in particular information on the permissions granted under section 3 of the Employment (Children) Rules of 1977, pending its modifications requested under paragraph 3 above.

[The Government is asked to report in detail in 1997.]