Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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. The Committee had previously noted that according to the ILO–IPEC TACKLE project report, four action programmes had 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 had also noted 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. The Committee had noted, however, that about 20 per cent of all primary school children did not complete the primary school cycle. It further noted from the ILO–IPEC TACKLE project report that according to the 2009 National Census, nearly 4 million children of school-going age were 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 notes the Government’s statement that it is making efforts through the county administration to ensure that children are kept in school and that the Ministry of Labour has been provided with extra budget for the purpose of strengthening the County Child Labour Committees (CCLCs) and carrying out child labour inspections. The Committee further notes the Government’s information that it is currently being engaged in consultations with ILO–IPEC to undertake a child labour survey in Kenya which is expected to be carried out in October 2012. The Committee notes from the Labour Commissioner’s annual report of 2011, (available on the Government website) that through the activities undertaken by the CCLCs, 788 children were found involved in child labour and its worst forms, 176 children were withdrawn from work and sent to school, 290 children were withdrawn from work and placed in youth polytechnics and vocational training centres. Furthermore, 880 children are being provided with school uniforms and school fees to ensure that they do not drop out of school and engage in child labour.

The Committee further notes that according to the information available from the ILO–IPEC (SNAP project report), the net enrolment rate at primary level increased to 96 per cent in 2011 and the transition rate from primary to secondary school reached 72 per cent It also notes that within the framework of the SNAP project, a total of 1,951 children (893 girls and 1058 boys) were withdrawn or prevented from child labour through the provision of educational services or training opportunities. In addition, the Committee notes the information from ILO–IPEC that the TACKLE project supported a rapid assessment on child labour in salt mines located in Coast Province. The project also supported the National Council for Children Services to develop a national children database that will help the Government collect data on key child protection indicators which will be used for planning and reporting purposes. While noting the measures taken by the Government, the Committee must once again express its deep concern at the high number of children who are not attending school and are involved or are at risk of being involved in child labour. It therefore urges the Government to continue its efforts to improve the situation of child labour in the country. It requests the Government to provide information on the findings of the rapid assessment survey on child labour in salt mines in Coast Province. The Committee also encourages the Government to pursue its efforts to undertake a child labour survey, and to provide any up-to-date statistical information obtained in this regard.

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 had noted 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. It had therefore urged 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 notes the Government’s statement that in the reviewed Education Bill which is currently before the cabinet for approval, it has been proposed that the compulsory schooling be extended to 18 years. In this regard, the Committee must emphasize the desirability of linking the age of completion of compulsory schooling with the minimum age for admission to work, as provided under Paragraph 4 of the Minimum Age Recommendation, 1973 (No. 146). It also recalls that according to Article 2(3) of the Convention the specified minimum age shall not be less than the age of completion of compulsory schooling. If the minimum age for admission to work or employment is lower than the school-leaving age, children may be encouraged to leave school as children required to attend school may also be legally authorized to work (see General Survey of 2012 on the fundamental conventions concerning rights at work, paragraph 370). Noting that the Education Bill proposes to extend the compulsory schooling age up to 18 years which is higher than the minimum age for admission to work (16 years), the Committee urges the Government to take the necessary measures to ensure that the revision of the Education Bill does not fail to take into account the principle laid down under Paragraph 4 of the Minimum Age Recommendation, 1973 (No. 146). The Committee expresses the firm hope that the Education Bill respecting the provisions of Article 2(3) of the Convention will be formulated and adopted in the near future.

Article 3(2). Determination of hazardous work. The Committee had previously noted the Government’s statement that the list of types of hazardous work prohibited to children under 18 years had been approved by the National Labour Board and was awaiting to be published in the Gazette by the Ministry of Labour. It had noted that the draft document entitled “Determining 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, contained 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.

The Committee notes the Government’s information that the List of Hazardous Work, 2008 is currently being reviewed and a consultant has been appointed with the assistance of ILO–IPEC to enable the normal process of adoption. 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 once again 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. It had further noted the Government’s statement that the regulations under section 10(4) of the Children’s Act were adopted, and that a copy would be provided. The Committee had observed that the Government had been stating since 2005 that this regulation under section 10(4) of the Children’s Act had been issued by the Minister, and had strongly urged the Government to supply a copy thereof along with its next report.

The Committee notes the Government’s statement that the matter has been taken up with the relevant department and that it will ensure that information on the progress made in the discussions will be supplied as soon as possible. Observing that Kenya ratified the Convention over 30 years ago and that the question of revision of the Children’s Act and the adoption of the regulation under section 10(4) of the Children’s Act has been raised for a number of years, the Committee once again urges the Government to take the necessary measures to ensure the adoption of 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.

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 of 13 years, and which prescribe the hours and conditions of such employment had not yet been completed.

The Committee notes the information in the Government’s report that the rules prescribing the light work in which a child of 13 years and above may be employed has been developed and discussed by stakeholders and is currently at the Attorney General’s Office for adoption. The Committee 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 above and the number of hours during which and the conditions in which, such work may be undertaken, will be adopted soon. It requests the Government to provide a copy once they have been adopted.

Article 8. Artistic performances. The Committee had previously taken note of 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 had noted with regret that despite its reiterated comments for many years, no measures had yet been taken by the Government to this effect.

The Committee notes the Government’s information that the matter to establish the provisions for granting permits for young persons under the age of 16 years has been taken up by the relevant ministries and the outcome of the discussions will be supplied soon. The Committee expresses the firm hope that the provisions allowing for young persons below 16 years of age to take part in artistic activities through permits granted in individual cases and which prescribe the number and hours during which, and the conditions in which, such employment or work is allowed, will be formulated and adopted in the near future. It requests the Government to supply information on any progress made in this regard.

The Committee is raising other points in a request addressed directly to the Government.

[The Government is asked to supply full particulars to the Conference at its 102nd Session and to reply in detail to the present comments in 2013.]