Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

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

Legislation. Scope of application. The Committee notes the Government’s indication that no category of worker has been excluded by the Minister from the application of the Employment Act, 2007, pursuant to section 3(4), and that protection against discrimination is ensured pursuant to section 27 of the 2010 Constitution, which applies to all persons, including the self-employed, Kenya Prisons service, administration police force and national youth service. The Committee notes that general constitutional provisions regarding equality, while important, have generally not been sufficient in order to address specific cases of discrimination in employment and occupation. The Committee requests the Government to continue to provide information on any exclusions determined by the Minister pursuant to section 3(4) of the Employment Act, and to indicate if the categories of workers excluded from the scope of the Act pursuant to section 3(2) – namely the armed and police forces, prisons and National Youth services, and dependants in a family undertaking – are covered by specific laws or regulations protecting them from discrimination in employment or occupation.

Non-discrimination and equal opportunities of workers in export processing zones (EPZs). The Committee notes the Government’s indication that all provisions of the Employment Act, 2007 apply to EPZs. The Committee welcomes the information regarding the comprehensive labour inspections in the EPZs being undertaken by the Department of Labour, and that a report will be prepared compiling the results of this inspection process. The Committee asks the Government to provide a copy of the report of the Department of Labour, and hopes that it will contain information on the number, nature and outcome of cases detected by the labour inspection services in EPZs concerning non compliance with the equality and non-discrimination provisions of the Employment Act, 2007.

Equality of opportunity and treatment of men and women. The Committee notes that the 2010 Constitution provides that “women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres” and prohibits discrimination based on sex, pregnancy and marital status (article 27(3) and (4)). It notes from the statistics provided by the Government that the participation of women in wage employment remains low (30.4 per cent in 2009) and that women remain concentrated in particular economic sectors (education services, agriculture and forestry and other services). The Committee notes that the Ministry of Gender, Children and Social Development has developed a Training Manual on Gender Mainstreaming (June 2008), and a Monitoring and Evaluation Framework for Gender Mainstreaming (March 2009). In this respect, the Committee notes the Government’s commitment to mainstream gender in government policies, plans, budgets and programmes and to increase the participation of women in the economy through affirmative action. The Committee requests the Government to provide information on the measures taken to promote wage and self employment of women and to amend or repeal any discriminatory law to bring them into conformity with the new constitutional provisions on equality and non-discrimination.

Addressing gender stereotypes. The Committee notes the Government’s indication that gender focal persons within workers’ and employers’ organizations address stereotypes on the role of men and women in the labour market, through the implementation of gender policies. The Committee notes however that the Committee on the Elimination of Discrimination against Women (CEDAW), while noting efforts made in this context, reiterated its concern at the persistence of adverse cultural norms, practices and traditions as well as patriarchal attitudes and deep-rooted stereotypes regarding the roles, responsibilities and identities of women and men in all spheres of life. (CEDAW/C/KEN/CO/7, 5 April 2011, paragraph 17). The Committee urges the Government to take concrete measures, such as awareness-raising campaigns, in collaboration with the social partners, to address effectively gender stereotypes that generate and perpetuate gender discrimination in education, employment and occupation, including with respect to occupational gender segregation and women’s access to land and credit.

Equality of opportunity and treatment of ethnic minority groups and indigenous peoples. The Committee notes that the new Constitution provides for affirmative action programmes to be put in place in order to ensure that minorities and marginalized groups, including traditional, indigenous and pastoral communities that were or are disadvantaged by discrimination, are provided special opportunities in educational and economic fields and in access to employment (article 56). The Committee further notes that the Constitution provides for the development of a legal and policy framework on land rights, including community lands, and natural resources (Chapter 5). With respect to the Ogiek and Endorois communities to which the Committee referred in its previous comments, the Committee notes the recent concluding observations of the United Nations Committee on the Elimination of Racial Discrimination (CERD) expressing concern that no measures had been taken to act upon the decisions of the African Commission on Human and People’s Rights regarding their forced eviction from their lands, and that the people affected are without any redress to date (CERD/C/KEN/CO/1-4, 2 September 2011, paragraph 17). The Committee requests the Government to provide information on the measures taken or envisaged to address discrimination and inequalities faced by ethnic minorities and indigenous peoples. The Committee requests in particular information on the legislative and policy measures taken in accordance with the constitutional provisions on the rights of minorities, including the land policy, and the impact of such measures in ensuring that indigenous peoples are able to engage in their traditional occupations and livelihood activities. It further requests the Government to provide information on the specific situation of the Ogiek and Endorois communities, with respect to the exercise of their traditional occupations. Please also provide information on any affirmative action programmes or other measures put in place to increase the opportunities of minorities and indigenous peoples in education and vocational training as well as access to employment and occupation.

Article 4 of the Convention. Measures affecting persons justifiably suspected of, or engaged in, activities prejudicial to the security of the State. Further to its request regarding the application of section 5(3)(d) of the Employment Act, 2007, the Committee notes the Government’s indication that a certificate of good conduct must be obtained from the police as a prerequisite for recruitment in limited categories of employment, such as the security forces. With respect to the exception provided by Article 4 of the Convention, the Committee recalls that it should be interpreted strictly. All measures of state security should be sufficiently well defined and precise and the persons affected by the measures, namely the issuance of the certificate, must have the right to appeal to an independent body. The Committee requests the Government to indicate how it ensures that the requirement for a “good conduct” certificate does not unduly limit the protection under the Convention, and asks the Government to provide further information on all the categories of employment concerned.

Equality Body. The Committee notes the creation of the Kenya National Human Rights and Equality Commission (Part 5 of the Constitution), which has advisory, promotional, investigative and remedial functions. The Committee asks the Government to provide information, including regarding any relevant legislation, regarding the powers and functioning of the Kenya National Human Rights and Equality Commission as well as on its activities in the fields of non-discrimination and equality in employment and occupation.

Enforcement. Labour inspection. The Committee welcomes the fact that the inspection form provided by the Government contains specific items relating to discrimination, including sexual harassment. In order to better assess the situation in practice, the Committee requests the Government to provide information on cases of discrimination detected by or reported to labour inspectors, including sexual harassment cases.