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

Night Work (Women) Convention (Revised), 1948 (No. 89) - Kenya (Ratification: 1965)

The Committee notes the Government’s succinct report indicating that there has been no change in the legislation affecting the practical application of the Convention, section 28(1) of the Employment Act No. 2 of 1976, still prohibiting women from performing work in industrial enterprises during the 12-hour period from 6.30 p.m. to 6.30 a.m. The Committee recalls however, that the Government has been announcing for a number of years, its intention to amend the above provision considering it to be discriminatory in nature.

The Committee takes this opportunity to refer to paragraphs 191 to 202 of its  General Survey of 2001 on night work of women in industry, in which it observed that the present trend is no doubt to move away from a blanket prohibition against women’s night work and to give the social partners the responsibility for determining the extent of the permitted exemptions. It also noted that many countries are in the process of easing or eliminating legal restrictions on women’s employment during the night with the aim of improving women’s opportunities in employment and strengthening non-discrimination. The Committee further recalled that member States are under an obligation to review periodically their protective legislation in light of scientific and technological knowledge with a view to revising all gender-specific provisions and discriminatory constraints. This obligation stems from Article 11(3) of the 1979 United Nations Convention on the Elimination of All Forms of Discrimination against Women (to which parenthetically Kenya acceded in 1984), as later reaffirmed in point 5(b) of the 1985 ILO resolution on equal opportunities and equal treatment for men and women in employment.

More concretely, the Committee considered that the Protocol of 1990 to Convention No. 89 was designed as a tool for smooth transition from outright prohibition to free access to night employment, especially for those States that wished to offer the possibility of night employment to women workers but felt that some institutional protection should remain in place to avoid exploitative practices and a sudden worsening of the social conditions of women workers, while the Night Work Convention, 1990 (No. 171), was drafted for the needs of those countries which would be prepared to eliminate all gender-specific restrictions on night work and to regulate night work for men and women alike.

In the light of the foregoing observations, the Committee invites the Government to give favourable consideration to the ratification of either the 1990 Protocol, which affords greater flexibility in the application of the Convention while remaining focused on the protection of female workers, or Convention No. 171, which shifts the emphasis from a specific category of workers and sector of economic activity to the safety and health protection of night workers irrespective of gender in nearly all branches and occupations. The Committee requests the Government to indicate any developments in this respect.