Demande directe (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Kenya

Convention (n° 97) sur les travailleurs migrants (révisée), 1949 (Ratification: 1965)
Convention (n° 143) sur les travailleurs migrants (dispositions complémentaires), 1975 (Ratification: 1979)

Kenya

In order to provide an overview of matters relating to the application of the ratified Conventions on migrant workers, the Committee considers it appropriate to examine Conventions Nos 97 and 143 together.

Matters commons to the application of Conventions Nos 97 and 143

Statistical data on migration. The Committee takes note of the migration profile established in 2015 and updated in 2018 by the International Organization for Migration (IOM), in partnership with the Government, showing that for the year 2017: 29.318 foreign nationals were registered in Kenya, a total of 488.415 refugees and asylum seekers were present in the country and the total amount of remittances sent by the diaspora into the country amounted approximately to USD 1.946.896. The Committee recalls that appropriate data and statistics are crucial in determining the nature of labour migration and inequalities of treatment faced by migrant workers, to set priorities and design measures, and to evaluate their impact (2016 General Survey, Promoting fair migration, paragraph 648). The Committee requests the Government to continue to: (1) collect and analyse relevant data on migration flows to and from Kenya; (2) collect and analyse data on the situation of migrant workers in Kenya, including data on the proportion and situation of migrant workers in irregular status in the country; and (3) to inform on whether such data are being collected by the National Bureau of Statistics.

Articles 1 of Convention No. 97 and Articles 10 and 12 of Convention No. 143. National migration policy. In its last comment, the Committee noted that a number of institutions were responsible for the implementation of the policies related to migration (such as the National Labour Board, the Work Permits Committee, the Kenya Citizens and Foreign Nationals Management, the External Remittances and Foreign Employment Committee, and the National Diaspora Council of Kenya (NADICOK)) and requested information on their respective activities. The Committee notes that in its reports, the Government indicates that the National Coordination Mechanism is responsible for the inter-agency coordination on migration, and that a Labour Migration Policy and of a Labour Migration Management Bill are currently under development. The Committee requests the Government to provide information on the results of its efforts to coordinate the activities of all the agencies competent to address labour migration, as well as on the status of the Labour Migration Policy and the Labour Management Bill, their content, and if adopted, their implementation in practice.

Articles 1, 7 and 10 of Convention No. 97 and Article 4 of Convention No. 143. Cooperation between States. The Committee takes note of the information provided by the Government on its engagement with other members on migration related issues. Specifically, the Government indicates that: (1) the Government discusses these matters in the context of the Regional Consultative Processes; (2) the country is part of the East African Community (EAC) and as such adopted the EAC Common Market Protocol that allows for the free movement of EAC nationals; (3i) the country is a member of the Northern Corridor Integration Program (NCIP) which allows the use of identity cards for travels; (4) Kenya is a member of the Steering Group of the Global Forum on Migration and Development (GFMD), of the International Organization for Migration, and of the Executive Committee of the Programme of United National High Commissioner for Refugees; and (5) Kenya has signed a number of bilateral labour agreements (BLA) and Memorandum of Understandings (MOUs) regarding migration, such as for example, two MOUs signed with Germany in 2007, and the BLAs signed with Saudi Arabia, Qatar and the United Arab Emirates (UAE) in 2017. In this respect, the Committee refers the Government to the ILO General Principles and Operational Guidelines for Fair Recruitment and Related Costs inviting Members to make the international agreements on labour migration publicly available.

Article 8 of Convention No. 97 and Article 8 of Convention No. 143. Legal status in the event of incapacity for work or loss of employment. Previously, the Committee had requested the Government to provide information on the practical implementation of section 41(1)(b) of the Kenya Citizenship and Immigration Act, 2011 providing, that where a permit has been issued to a person and that person ceases to engage in the said employment, occupation, trade, business or profession, the permit shall cease to be valid. The Committee recalls that article 8 of both instruments state that the loss of the employment of a migrant worker residing legally in the country shall not in itself imply the withdrawal of the authorisation of residence or the work permit. Noting that the Government does not provide information in this regard, the Committee reiterates its request to the Government to indicate in which cases of termination of employment section 41(1)(b) of the Kenya Citizenship and Immigration Act, 2011 applies.

Article 6 of Convention No. 97 and Articles 10 and 12 of Convention No. 143. Equality of treatment. Application in practice. In its previous comments, the Committee noted that pursuant to section 5 (1)(b) of the Employment Act, 2007 it shall be the duty of the Minister, labour officers and the Industrial Court to promote and guarantee equality of opportunity for a person who is a migrant worker or a member of the family of the migrant worker, lawfully within Kenya - and requested information on the application of this section in practice. The Committee also requested information on the work of the labour inspectorate in relation to the protection of migrant workers’ right to equal treatment. Noting that the Government is silent in this regard, the Committee requests again the Government to provide information on the number of cases related to the application of section 5 of the Employment Act, 2007 detected by or brought to labour inspectors, the nature of these cases and their outcomes (number of cases brought to court, sanctions and penalties imposed).

Matters specifically relating to the application of Convention No. 97

Articles 2 and 4. Free services and assistance to migrant workers. Measures in place to facilitate the departure, journey and reception of migrants for employment. The Committee requested the Government to indicate how it was ensured that sufficient information was provided to migrant workers, and whether the services provided to migrant workers were free of charge. The Committee notes the indication by the Government that it provides pre-departure trainings and collaborates with labour attachés in its missions in the destination countries, such as Qatar, United Arab Emirates and Saudi Arabia. The Committee also observes that the Strategic Plan 2018-2022 of the State Department of Labour refers to the implementation of a programme of pre-departure training and orientation, that has served 5,100 migrant workers since 2018. Furthermore, the Committee notes with interest the launch in 2019 of the Kenya Migrant Workers Information Website that includes detailed information on labour migration to the Gulf region. The Committee requests the Government to continue its efforts to provide accurate information to migrant workers and to indicate what other free services, if any, are delivered to migrant workers to facilitate their departure, journey and reception in countries of destination; and in particular on measures put in place to assist migrant workers during their stay in the country of destination.

Article 3. Measures against misleading propaganda. The Committee requests again the Government to provide information on the sanctions imposed for the dissemination of misleading propaganda on labour migration.

Article 5. Medical services. In the absence of information provided by the Government in this respect, the Committee reiterates its request to the Government to specify the conditions under which the medical examinations of migrant workers required, in virtue of sections 48(1)(d) and 33(2)(a) of the Kenya Citizenship and Immigration Act on the medical examination of migrant workers, is implemented in practice, including the kind of medical exams performed.

Matters specifically relating to the application of Convention No. 143

Articles 1 and 9. Basic human rights of all migrant workers and rights arising out of past employment. In its last comment, the Committee requested the Government to provide information on the measure taken to ensure that: (1) the fundamental rights of migrant workers in irregular situation; and (2) their rights deriving from previous employment are fully respected. The Committee notes that the Government does not provide information on both of these points. However, it observes that the Strategic Plan of the Kenya Commission on Human Rights (KCHR) 2018-2023 refers to the need for the KCHR to lobby for a human rights approach in Migration governance. The Committee also notes that the Employment Act, 2007 applies to “employees” defined as persons employed for wages or a salary (Section 2 of the Employment Act, 2007), which would cover migrant workers independently of their migration status. The Committee requests the Government to communicate on the measures taken to ensure the protection of the basic human rights of all migrant workers, including those without lawful status – such as information on: (i) the activities of the Kenya Commission on Human Rights (KCHR) to lobby for a human rights approach in migration governance; (ii) the investigations conducted by labour inspectors or other entities on human rights abuses against migrant workers; and (iii) the number of cases of human rights abuses against migrant workers detected and brought to justice, and on the outcome of these cases. The Committee also requests the Government to provide information on the measures adopted to facilitate the access of migrant workers in irregular status to remedies with regard to their rights deriving from previous employment – such as information on: (i) the number of complaints filed by undocumented migrant workers regarding their employment rights and the outcome of these complaints; and (ii) any facilities given to them to reside lawfully in the country while the proceedings are pending.

Articles 2-6. Measures to detect and address irregular migration and abuses against migrant workers. The Committee had requested the Government to provide information on the implementation of the Counter-Trafficking in Persons Act, 2010 and the Kenya Citizenship and Immigration Act, 2011, and of the policies and plans adopted to combat trafficking in person. The Committee takes note of the information provided by the Government regarding the activities of the Counter Trafficking in Persons Advisory Committee (CTPAC) and the National Assistance Trust Fund for Victims of Trafficking in Persons. Specifically, it notes that the CTPAC meets every four months to address issues of prevention, protection, and rehabilitation of victims of trafficking in persons, partners with other agencies, and trains government officials and stakeholders on counter trafficking. The Government also refers to the National Plan of Action for Combating Human Trafficking 2013-2017 which provides for actions on the capacity building of service providers, public awareness raising, data collection and research, the reduction of fraudulent employment, direct assistance to victims, and international cooperation. The Committee further notes that the Government indicates that for the year 2014, 65 cases of trafficking were prosecuted. Lastly, the Committee takes note of the indication by the Government that it put in place stern rules for the registration and monitoring of the activities of employment agencies for the placement of Kenyan workers abroad. The Committee asks the Government to provide information on:

• - the concrete results of the 2013-2017 National Plan of Action for Combating Human Trafficking (such as any statistical information available on human trafficking, and updated information on the number of cases detected and their outcome);
• - the sanctions applied in practice in the event of unlawful employment of migrant workers, or the organization of migration in abusive conditions;
• - the regulation of employment agencies (such as information on their registration process, the conditions for the revoking of their licenses, information on the monitoring system in place, on whether there is mechanism available to migrant workers to file complaints against these agencies, and a copy of the code of conduct adopted by the Kenya Association of Private Employment Agencies referred to in the past reports of the Government).

Articles 2(2) and 7. Consultation of employers’ and workers’ organizations. The Committee recalls that it had requested the Government to indicate how the employers’ and workers’ organizations are being consulted with regard to the measures designed and implemented to eliminate irregular migration and abuses against migrant workers. It notes the Government’s indication that it has undertaken a participatory approach by sharing and soliciting views of employers and workers for the formulation of the Labour Migration Management Bill. The Committee also notes that the National Plan of Action for Combating Human Trafficking 2013-2017 provides for the involvement of the social partners for its implementation and refers in this regard to the important role of the Central Organization of Trade Union (COTU) and the Federation of Kenya Employers (FKE). The Committee asks the Government to provide further information on the impact of the involvement of the social partners in the development, and if applicable, the implementation of the Labour Migration Policy and the Labour Migration Management Bill, and to indicate whether they are being consulted with regard to any other measure to eliminate irregular migration and abuses against migrant workers (specifying whether and how the proposals of the workers’ and employers’ organizations are assessed in practice).