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

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

Article 1 of the Convention and Part V of the report form. National policy and application of the Convention in practice. In its previous comments, the Committee had urged the Government to redouble its efforts to ensure the progressive abolition of child labour.

The Committee notes that according to the ILO–IPEC TACKLE project report, four action programmes have been implemented in Kenya under this project which resulted in the withdrawal of about 1,050 children from child labour who were enrolled back in schools or placed in skills training through apprenticeship, in addition to 351 children who have been prevented from dropping out of school and from entering into child labour. It also notes from the ILO–IPEC TACKLE project report that following the implementation of the Kenya Education Sector Programme (KESSP), the net enrolment rates at the primary level increased from 83.2 per cent in 2005 to 92.5 per cent in 2008. However, about 20 per cent of all primary school children do not complete the primary school cycle. The Committee further notes from the ILO–IPEC TACKLE project report that according to the 2009 National Census, nearly four million children of school-going age are out of school, which implies that the number of children in or at risk of child labour could be higher than the 756,000 reported in the 2008 Child Labour Analytical Report. The Committee expresses its concern at the high number of children who are not attending any school and are involved or are at risk of being involved in child labour. The Committee therefore urges the Government to strengthen its efforts to improve the situation of child labour in the country and requests it to provide information on the measures taken in this regard. It also requests the Government to provide information on the practical application of the Convention, including, data on the number of children under the minimum age who are engaged in child labour, as well as extracts from the reports of inspection services and information on the number and nature of violations detected involving children and young persons.

Article 2(3). Age of completion of compulsory schooling. The Committee had previously noted that, under section 7(2) of the Children’s Act, every child shall be entitled to free basic education which shall be compulsory. It had also noted the Government’s statement that in order to address the gap between the minimum age for admission to employment (16 years) and the age of completion of compulsory schooling (14 years), the Government had waived the tuition fees for the first two years in secondary schooling. It had further noted the Government’s indication that it has not envisaged adopting any legislation fixing the age of completion of compulsory education. In this regard, the Committee had noted the information provided by the Government representative of Kenya to the Conference Committee on the Application of Standards in June 2006 concerning the application of Convention No. 138, that it had appointed a committee to review the Education Act with a view to modifying, inter alia, the age of completion of compulsory schooling. Recalling that this Convention had been ratified by Kenya more than 25 years ago, the Conference Committee had urged the Government to ensure that legislation addressing the gap between the age of completion of compulsory schooling and the minimum age for admission to employment or work would be adopted shortly.

The Committee notes the Government’s statement that it will endeavour to encourage dialogue among stakeholders with a view to setting the age of completion of compulsory schooling at 16 years. The Committee notes with regret that, despite the request which it has repeatedly made since 2002, no measures have yet been taken to give effect to the Convention. The Committee therefore urges the Government to take the necessary measures, without delay, to extend compulsory schooling up to 16 years which is the minimum age for employment in Kenya. The Committee requests the Government to provide information in its next report on any progress made in this regard.

Article 3(2). Determination of hazardous work. The Committee had previously noted the Government’s statement that the list of types of hazardous work that had been approved by the stakeholders was undergoing the process of approval by the National Labour Board and thereafter adoption by the minister.

The Committee notes the Government’s statement that the list of types of hazardous work prohibited to children under 18 years has been approved by the National Labour Board and is currently awaiting to be published in the Gazette by the Ministry of Labour. The Committee notes that the draft document entitled “Determining the Hazardous Child Labour in Kenya: July 2008” prepared by the Ministry of Labour and Human Resources Development in consultation with the Central Organization of Trade Unions and the Federation of Kenya Employers, contains a comprehensive list of 18 types of hazardous occupations/sectors including: work in domestic households; transport; internal conflicts; mining and stone crushing; sand harvesting; miraa picking; herding of animals; brick making; agriculture; work in industrial undertakings; carpet/basket weaving; building construction; tannery; deep-lake and sea fishing; glass factory; matches and fireworks factory; urban informal sector; and scavenging with each sector further providing a list of various activities that are prohibited to children. Noting with regret that the Government has been referring to the adoption of this draft regulation on the list of types of hazardous work since 2005, the Committee urges the Government to take the necessary measures to ensure that this regulation is adopted in the very near future. It requests the Government to supply a copy thereof once it has been adopted.

Article 3(3). Admission to hazardous work as from 16 years of age. The Committee had previously noted the Government’s indication that the competent Minister had issued regulations in respect of periods of work and establishments where children aged at least 16 years may work, including hazardous work referred to in section 10(4) of the Children’s Act. It had also noted the Government’s statement that the Children’s Act was being reviewed and that a copy thereof would be sent after adoption by the Parliament.

The Committee notes the Government’s statement that the regulations under section 10(4) of the Children’s Act are adopted, and the copy will be provided. Observing with regret that the Government has been stating since 2005 that this regulation under section 10(4) of the Children Act has been issued by the Minister, the Committee strongly urges the Government to supply a copy thereof along with its next report.

Article 6. Apprenticeship. The Committee had previously noted that according to section 58(1) of the Employment Act of 2007, no person shall employ a child of between 13 and 16 years of age, other than one serving under a contract of apprenticeship or indentured learnership in accordance with the provisions of the Industrial Training Act, in an industrial undertaking to attend to machinery. Similarly, section 57 of the Employment Act exempts children between the ages of 13 and 16 years who are subject to the provisions of the Industrial Training Act relating to contracts of apprenticeship. The Committee had observed that, according to the Employment Act of 2007, children between 13 and 16 years of age are allowed to take part in apprenticeship programmes subject to the provisions of the Industrial Training Act. The Committee had once again noted the Government’s indication that the Industrial Training Act was being amended to bring the legislation into conformity with the Convention.

The Committee notes the Government’s statement that it is envisaged that during the amendment of the Industrial Training Act, consideration will be given to bring the legislation in conformity to the Convention. Recalling that Article 6 of the Convention authorizes work to be carried out in enterprises within the context of an apprenticeship programme by persons aged at least 14 years, the Committee requests the Government to take the necessary measures, without delay, to ensure that children under the age of 14 years are not permitted to undergo an apprenticeship programme. In this regard, the Committee once again expresses the firm hope that the amendments to Industrial Training Act will be adopted in the near future thereby bringing it into conformity with the Convention. It requests the Government to provide information on any progress made in this regard.

Article 7(3). Determination of light work. The Committee had previously noted that, according to section 56(3) of the Employment Act, the minister may make rules prescribing light work in which a child of 13 years may be employed and the terms and conditions of that employment. It had noted the Government’s statement that the rules and regulations which stipulate the types of light work activities permitted to children under 13 years, and which prescribe the hours and conditions of such employment has not yet been completed.

The Committee notes the information in the Government’s report that this regulation has not yet been adopted. The Committee therefore once again expresses the firm hope that the regulations determining the light work activities that may be undertaken by children of 13 years of age and the number of hours during which and the conditions in which, such work may be undertaken, will be adopted in the near future. It requests the Government to provide information on any progress made in this regard.

Article 8. Artistic performances. The Committee had previously noted section 17 of the Children’s Act, which provides that a child shall be entitled to leisure, play and participation in cultural and artistic activities. It had also noted that the national legislation does not provide for permits to be granted to children participating in cultural artistic performances. The Committee once again notes the Government’s information that consultations will be made with the social partners with regard to the granting of individual permits for artistic performances. The Committee notes with regret that despite its reiterated comments for many years, no measures have yet been taken by the Government to this effect. The Committee therefore requests the Government to take the necessary measures to ensure that approval for young persons of below 16 years of age to take part in artistic activities is granted in individual cases, and that permits so granted shall prescribe the number and hours during which, and the conditions in which, such employment or work is allowed. The Committee requests the Government to supply information on any progress made in this regard.