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

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

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 102nd Session, June 2013)

The Committee takes note of the Government’s report as well as of the detailed discussion which took place at the 102nd Session of the Conference Committee on the Application of Standards in June 2013 (Conference Committee) concerning the application by Kenya of the Convention.

Article 1 of the Convention and Part V of the report form. National policy and application of the Convention in practice. The Committee previously noted from the ILO–IPEC “Tackling child labour through education” TACKLE project report that, according to the 2009 National Census, nearly 4 million children of school-going age were out of school, which implied 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.

In this regard, the Committee noted the various efforts taken by the Government through the county administration to ensure that children are kept in school including providing an extra budget for the purpose of strengthening the County Child Labour Committees (CCLCs) for carrying out child labour inspections. It also noted the information from the ILO–IPEC–SNAP project report that 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. In addition, the Committee noted from the ILO–IPEC TACKLE project report that it supported a rapid assessment on child labour in salt mines located in the Coast Province. Finally, the Committee noted the Government’s information that it was engaged in consultations with ILO–IPEC to undertake a child labour survey in Kenya which was expected to be carried out in October 2012.

The Committee notes the information provided by the Government representative of Kenya to the Conference Committee in June 2013 that Kenya has been continuing its efforts to improve the child labour situation through legislative and constitutional reforms, technical assistance and relevant projects and programmes, including TACKLE and SNAP implemented with the support of ILO–IPEC. The Government representative further stated that the rapid assessment survey of child labour in salt mines in Coast Province, conducted by the ILO–IPEC TACKLE programme, revealed that child labour was prevalent prior to 2006, but that children no longer worked in the salt mines.

The Committee notes that the Conference Committee, while noting the various measures taken by the Government to combat child labour, expressed its deep concern at the high number of children who were not attending school and were involved in child labour, including hazardous work, in Kenya. It urged the Government to strengthen its efforts to combat child labour in the country with a view to eliminating it progressively within a defined time frame. Moreover, in light of the contradictory data on the number of children working under the minimum age, the Conference Committee urged the Government to undertake a national child labour survey in the very near future.

In this regard, the Committee notes the Government’s statement in its report that the Government is engaging development partners to assist in resource mobilization for a specific child labour survey, while the Kenya National Bureau of Statistics has scheduled a Labour Force Survey which will include a module on child labour by the end of 2014. Nevertheless, the Committee notes that, according to the findings of the ILO–IPEC Labour Market Survey carried out in the districts of Busia and Kitui in 2012, over 28,692 children were involved in child labour in the district of Busia, most of them involved in farm work, domestic work, street vending or engaged in drug trafficking. The survey report in the district of Kitui indicated that 69.3 per cent of children above five years of age were reported to be working, the majority of them between the ages of 10–14 years. Of these, 27.7 per cent were involved in farm work, 17 per cent in domestic work, 11.7 per cent in sand harvesting and 8.5 per cent in stone crushing and brick making. The Committee expresses its concern at the situation of children under 16 years of age who are compelled to work in Kenya. The Committee therefore urges the Government to strengthen its efforts to improve the situation of children under the age of 16 years and to ensure the progressive elimination of child labour. It requests the Government to provide information on the measures taken in this regard and on the results achieved. The Committee also urges the Government to undertake the national child labour survey in the very near future, to ensure that sufficient up-to-date data on the situation of working children in Kenya are available and to provide a copy thereof, once completed.

Article 3(2) and (3). Determination of hazardous work and admission to hazardous work as from 16 years of age. The Committee previously noted the Government’s statement that the list of types of hazardous work prohibited for children under 18 years of age had been approved by the National Labour Board and was awaiting publication in the Gazette by the Ministry of Labour. It 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 with each sector further providing a list of various activities that are prohibited to children. Furthermore, the Committee observed in its previous comments that the Government had been stating since 2005 that the 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, had been issued by the Minister.

The Committee notes the Government’s statement in its report that the list of hazardous work has been incorporated into the Employment Act Regulations of 2013 which will soon be adopted. It also notes the Government’s indication that amendments with regard to the admission to hazardous work from the age of 16 years have been formulated and will soon be adopted. The Committee notes that the Conference Committee strongly urged the Government to ensure the adoption, in the very near future, of the necessary provisions addressing the issues of non compliance with the Convention, including the determination of the types of work prohibited to children under 18 years of age and the regulation of periods of work and establishments where children aged at least 16 years may perform hazardous work. The Committee therefore once again urges the Government to take the necessary measures to ensure that the regulation determining the types of work prohibited for children under the age of 18 years and the regulations in respect of periods of work and establishments where children aged at least 16 years may perform hazardous work are adopted in the very near future. It requests the Government to supply copies thereof once they have been adopted.

Article 7(3). Determination of light work. The Committee previously noted the Government’s statement that the rules prescribing light work in which a child of 13 years of age and above may be employed and the terms and conditions of that employment pursuant to section 56(3) of the Employment Act had been developed and discussed by stakeholders and were at the Attorney-General’s Office for adoption.

The Committee once again notes the Government’s statement that the regulation on light work activities will be adopted soon and that a copy will be provided to the Office as soon as it has been adopted. The Committee once again expresses the firm hope that the regulation 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.

Article 8. Artistic performances. The Committee 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 also noted that the national legislation does not provide for permits to be granted to children participating in cultural artistic performances. The Committee 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 a regulation on granting of permits for artistic performances has been formulated and forwarded for adoption under the Employment Act Regulations of 2013. The Committee once again 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 notes the Government’s indication in its report that it is currently in the process of making the necessary amendments to the national legislation in order to bring it into compliance with the Convention and its adoption will be completed by the end of 2014. In this regard, the Committee notes the Government’s intention to invite a direct contacts mission to visit the country as requested by the Conference Committee in order to assess the progress made and to provide the necessary guidance on how to improve the child labour situation in the country. The Committee strongly encourages the Government to invite and receive an ILO direct contacts mission to the country at the beginning of 2014.

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