Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Kenya (Ratification: 2001)

The Committee notes the Government’s first report and requests the Government to provide additional information on the following points.

1. Article 1 of the Convention. Sexual harassment. Recalling its 2002 general observation on this issue, the Committee notes that section 7 of the Draft Employment Bill 2004 prohibits sexual harassment, covering harassment by the employer, employers’ representatives, as well as co-workers. The definition of sexual harassment under the Bill includes quid pro quo and hostile environment, and requires employers of more than 20 employees to adopt and implement a policy statement on sexual harassment the substance of which has to reflect certain elements listed in section 7(3) of the Bill. Please keep the Committee informed with regard to the adoption of the Bill and provide a text of the new Employment Act upon adoption.

2. Prohibition of discrimination. The Committee notes that article 82 of the Constitution prohibits discriminatory treatment by law and discriminatory acts in the performance of a public office or a public authority. The definition of the term "discriminatory" refers to the prohibited grounds of race, tribe, place of origin or residence or other local connection, political opinions, colour, creed or sex. The Committee also notes that article 43 of the new Draft Constitution, as contained in the Revised Zero Draft of a Bill to alter the Constitution of 27 February 2004, provides that the State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. Noting that article 43 of the Draft Constitution omits the prohibited ground of political opinion, which is contained in the current Constitution, as well as in Article 1(1)(a) of the Convention, the Committee strongly recommends that the prohibited ground of political opinion be maintained. Please indicate any new developments with regard to the adoption of the new Constitution and the measures taken to ensure that it prohibits discrimination on the basis of political opinion.

3. Equal access to employment. The Committee notes section 6 of the Draft Employment Bill which prohibits discrimination in employment and occupation. Recalling that the Convention provides for equality of opportunity and treatment with regard to access to employment (Article 1(3)), the Committee requests the Government to indicate whether the Bill would also outlaw discrimination at the recruitment stage. In case section 6, as currently drafted, only prohibits discrimination for persons already under a contract, the Government is asked to bring the provision into conformity with the Convention in this regard.

4. Article 2. Obligation to declare and pursue a national policy to promote equality of opportunity with respect to employment and occupation. The Committee recalls that the Convention has a broad scope of application, covering all workers. The Government is therefore asked to indicate how the national equality policy required under Article 2 of the Convention is being declared and pursued with respect to the civil service and in export processing zones. Please indicate the legislative and administrative or other measures taken to ensure equality of opportunity and treatment in employment and occupation with respect to these categories of employment.

5. Equality of opportunity and treatment of men and women. The Committee notes that affirmative action measures have been taken to strengthen women’s participation in university education. It asks the Government to provide information on the impact of these measures on women’s equality of opportunity in education and employment.

6. The Committee also notes from the Government’s report on the implementation of the Beijing Platform of Action (1994-2004) that women’s enrolment in polytechnic and other technical institutes has increased from 30.4 per cent in 1997/98 to 39.4 per cent in 2003/04. Please provide information on the distribution of men and women in the different disciplines and areas of studies offered by these institutions.

7. Noting that according to the Government the participation of women in wage employment in the formal sector remained at around 29 per cent between 1998 and 2003, the Committee asks the Government to provide information on the measures taken to promote women’s equal participation in this formal sector employment. Please continue to provide statistical information on the participation of men and women in the various sectors and occupations, and levels of responsibility.

8. Equality of opportunity and treatment on the basis of race and colour. The Government is requested to indicate the legislative, administrative and other measures taken to promote the application of the Convention with regard to members of minority groups.

9. Article 3. Measures to secure the acceptance and observance of the national equality policy. In the absence of such information in the Government’s reports, the Committee requests the Government to provide information on:

(a)  the concrete measures taken or envisaged to ensure the observance of the national equality policy in vocational training and guidance, as well as placement services, provided under the direction of a national authority; and

(b)  any educational, training or awareness-raising activities promoting equality of opportunity and treatment of all groups protected under the Convention among employers, jobseekers, labour inspectors and other competent public officials, and society at large.

10. Article 4. Measures affecting persons justifiably suspected of, or engaged in, activities prejudicial of the security of the State. The Committee notes that section 6 of the Draft Employment Bill provides that it shall be lawful to restrict access to limited categories of employment or functions where it is necessary in the interest of state security. The Committee requests the Government to provide information on any legislative or administrative measures that may have been taken or which may be envisaged with the effect of excluding certain persons from employment for state security reasons.