Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

Legislation. Scope of application. While noting the Government’s indication that an audit will be undertaken and its results communicated to the Office on this issue, the Committee once again requests the Government to indicate if the categories of workers explicitly excluded from the scope of the Employment Act, 2007, pursuant to section 3(2), are covered by specific laws or regulations protecting them from discrimination in employment and occupation. The Government is also requested to supply the results of the audit when available.

Non-discrimination and equal opportunities of workers in export processing zones (EPZs). Given the increasing number of workers working in EPZs, according to the Export Processing Zones Programme – Annual Performance Report, 2012, the Committee once again asks the Government to provide a copy of the report of the Department of Labour on EPZs. It asks the Government to provide specific information on the number, nature and outcome of discrimination cases in EPZs detected by or brought to the attention of the labour inspection services and the National Gender and Equality Commission.

Equality of opportunity and treatment of men and women. The Committee welcomes the Government’s statement that it is in the process of putting in place an Affirmative Action Policy, a National Policy on Gender and Development, and an Equality Policy, with the involvement of the National Gender and Equality Commission (NGEC). It also welcomes the Government’s indication that in August 2013 the NGEC introduced a performance monitoring tool for the public sector which is designed to identify inequalities based on sex, as well as other inequalities, and will be used to monitor recruitments, promotions and access to training opportunities and inform on representation by sex. According to the Government, the tool will become effective before the end of 2013, after which public sector agencies will be required to submit quarterly reports to the NGEC which will be published for the Parliament. The Committee notes the Government’s indication that the NGEC, in cooperation with key actors of the private sector, is in the process of developing a similar monitoring tool for this sector. The Committee notes the Government’s indication that the Women’s Enterprise Fund, which promotes access to credit and self-employment, won the Millennium Development Goals Award for outstanding achievement in promoting gender equality and women’s empowerment in 2011. Welcoming the efforts and the progress made to promote gender equality in employment and occupation, the Committee requests the Government to provide information on the following:

• (i) the status and content of the Affirmative Action Policy, National Policy on Gender and Development, and Equality Policy, as far as education, training, employment and occupation are concerned;
• (ii) the distribution of men and women at the different job levels in the public sector;
• (iii) the measures taken as a result of the gender monitoring conducted in the public sector with the tool developed to this end, and their impact on gender equality;
• (iv) the progress made in developing a similar tool for the private sector, indicating the role of the social partners in this process; and
• (v) the measures taken to promote self-employment of women, including access to credit.

Addressing gender stereotypes. The Committee notes the Government’s indication that it will endeavour to carry out awareness-raising campaigns in collaboration with the social partners to effectively address gender stereotypes. The Committee asks the Government to provide information on any specific measures taken in this respect in the context of education, training, employment and occupation, in cooperation with the workers’ and employers’ organizations.

Equality of opportunity and treatment of ethnic minority groups and indigenous peoples. The Committee notes the Government’s statement that it is in the process of implementing the judgments of the African Court on Human and Peoples’ Rights, which held that the Government’s evictions of the Ogiek and Endorois were a violation of their rights under the African Charter of Human and People’s Rights. The Committee welcomes the establishment of the National Land Commission (NLC), pursuant to article 67 of the Constitution, which has the general mandate of managing public land and may initiate investigations, on its own initiative or on the basis of a complaint, into present or historical land injustices and recommend appropriate redress (section 5 of the National Land Commission Act, 2012). The NLC is composed of nine independent members appointed on the basis of their qualifications and experience. The Government indicates that the NLC cooperates with the NGEC to follow up on the implementation of the two judgments concerning the Endorois and Ogiek communities. The Committee notes from the report of the African Commission’s Working Group on Indigenous Populations/Communities, adopted by the African Commission on Human and Peoples’ Rights at its 50th Ordinary Session (24 October–5 November 2011) that, despite the progress made in the 2010 Constitution, Kenya’s minority and indigenous communities, who are often not officially recognized as such, continue to suffer from marginalization and discrimination and dispossession of their land that threatens the very existence of their livelihood. The Committee asks the Government to provide information on the steps taken to implement the judgments regarding the Ogiek and Endorois communities as well as on any other measures taken or envisaged with a view to ensuring that indigenous peoples are able to engage in their traditional occupations and livelihood activities. The Government is also asked to provide information on specific legislative and policy measures taken in accordance with article 56 of the Constitution, including affirmative action programmes, to increase the opportunities of minorities and indigenous peoples in education and vocational training, as well as in employment and occupation, and promote equality and non-discrimination. Please also continue to provide information on the activities of the NLC and the NGEC specifically concerning indigenous peoples, including any research or audit on their status.

Article 4 of the Convention. Measures affecting persons justifiably suspected of, or engaged in, activities prejudicial to the security of the State. The Committee notes the Government’s indication that no legislative measures have been undertaken to exclude certain persons from employment which would amount to discriminatory action. In order to assess the scope of the restriction on access to employment pursuant to section 5(3) of the Employment Act, the Committee once again requests the Government to specify the “limited categories of employment” concerned by this section. Please also indicate how it is ensured that the requirement of a “good conduct” certificate does not unduly limit the protection against discrimination under the Convention.

Enforcement. The Committee welcomes the decision of 8 November 2013 of the Industrial Court of Kenya in Kioka v. Catholic University of Eastern Africa, in which the Court found that the Catholic University of Eastern Africa had unlawfully discriminated against its female employee by continuing to employ her on casual terms at a lower salary than her male counterparts, conducting an HIV test without her consent, maintaining her on progressively shorter contracts, denying her paid maternity leave and ultimately terminating her employment. The Court determined that such conduct constituted discrimination based on sex, HIV status and pregnancy in contravention of Article 1 of the Convention, the HIV and AIDS Recommendation, 2010 (No. 200), the Equal Remuneration Convention, 1951 (No. 100), and section 5 of the Employment Act, 2007. The Committee requests the Government to continue to provide information on judicial decisions related to the application of the Convention. The Committee also requests information on cases of discrimination detected by or reported to labour inspectors, including sexual harassment cases.