Observation (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

Convention (n° 29) sur le travail forcé, 1930 - Kenya (Ratification: 1964)

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Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. 1. Action Plan. Implementation and monitoring. Referring to its previous comments, the Committee notes the Government’s information that within the framework of the National Plan of Action to Combat Trafficking in Persons 2013–17, 800 law enforcement and criminal justice officers as well as 60 trainers of trainers were trained and several public awareness-raising campaigns through vernacular radio stations, drama, community involvement, social media and television and print media were undertaken. The Government further indicates that the Counter Trafficking in Persons Advisory Committee has: (i) developed the draft National Plan of Action to Combat Trafficking in Persons 2021–26; (ii) introduced a module to collect data on trafficking of adults; (iii) trained about 1,700 officers in the criminal justice system and other law enforcement officers; (iv) carried out community engagement and awareness-raising programmes especially in communities vulnerable to trafficking in persons; (v) ensured that bilateral labour agreements were signed between Kenya and the United Arab Emirates, Qatar and Saudi Arabia, in order to reduce fraudulent employment opportunities abroad. The Committee encourages the Government to continue its efforts to prevent and combat trafficking in persons, and requests it to take the necessary measures to implement the National Plan of Action 202126. It requests the Government to provide information in this regard as well as on the assessment undertaken by the Counter Trafficking in Persons Advisory Committee of the results achieved and the difficulties encountered in the implementation of the National Plan of Action and the activities relating to combating trafficking in persons.

2. Protection and assistance to victims. The Committee welcomes the Government’s indication that the Counter Trafficking in Persons National Assistance Trust Fund has been operationalized and that since 2019 the Government has been providing funds to this end. The Trust Fund has been used to repatriate 81 victims of trafficking in and out of Kenya and another 30 victims of trafficking are being rehabilitated through a non-governmental organization, with support from the Trust Fund. The Government further indicates that the National Referral Mechanism Guidelines for assisting victims of trafficking, developed in 2016, have been disseminated in 23 counties.

Regarding the assistance provided to victims by the Advisory Committee, the Government states that 350 returnees from Gulf Cooperation Council countries were screened at the coastal area and potential victims of trafficking were sent to appropriate services. The existing Government facility is being refurbished to serve as a shelter for victims of trafficking. The Committee also notes that the National Employment Authority has a feature on its website for overseas workers to report exploitation, including potential trafficking crimes, and to request assistance. The National Employment Authority has also launched a toll-free helpline to enable migrant workers in distress to report their challenges and difficulties.

In this regard, the Committee notes that the United Nations Human Rights Committee, in its concluding observations of May 2021, expressed concern about Kenyan nationals, predominantly women, being coerced by employment agencies to work under exploitative conditions abroad (CCPR/C/KEN/CO/4).

The Committee requests the Government to strengthen its efforts to protect Kenyan nationals from being exploited abroad, in particular by further developing awareness activities on safe recruitment processes and monitoring the activities of employment agencies. It also requests the Government tocontinue to provide information on the measures taken to ensure that victims of trafficking in Kenya and victims returning from abroad are provided with adequate protection, assistance, rehabilitation services and compensation, as provided for under the National Referral Mechanisms Guidelines and theCounter Trafficking in Persons Act No. 8 of 2010.

3. Prosecution. In response to its previous comments, the Committee notes the Government’s information that the Police Standards of Operations (SOPS) have been prepared with the aim of guiding police officers in handling trafficking in persons cases at the pretrial stage. In addition, the Prosecutor’s Manual gives direction to prosecutors on how to categorize cases related to trafficking in persons, charge offenders and impose the appropriate penalty for each offence. The Government also indicates that Guidelines for Identification of Victims of Trafficking have been developed to help the police as well as other authorized public officers to identify, screen and interview victims of trafficking, which would eventually contribute to rescuing victims, assist in the arrest of perpetrators and ensure enough evidence for court proceedings.

The Committee also notes that the United Nations Human Rights Committee, in its concluding observations of May 2021, expressed concern at the inadequate implementation of the Counter Trafficking in Persons Act No. 8 of 2010 and at the low rate of convictions for trafficking in persons (CCPR/C/KEN/CO/4).

The Committee requests the Government to continue to take the necessary measures to ensure the adequate identification of cases of trafficking and prompt investigations so that the perpetrators are prosecuted and punished. It also requests the Government to provide statistical information in this regard, including on the number of persons prosecuted and convicted and the nature of the penalties applied.

Articles 1(1) and 2(1). Compulsory labour in connection with the conservation of natural resources. For a number of years, the Committee has been requesting the Government to amend sections 13–18 of the Chief’s Authority Act (Cap. 128), as amended by Act No. 10 of 1997, which go beyond the exception provided for under Article 2(2)(e) of the Convention concerning “minor communal services”. Under sections 13–18 of the Act, able-bodied male persons between 18 and 50 years of age may be required to perform any work or service in connection with the conservation of natural resources for up to 60 days in any year.

The Committee notes the Government’s statement that the Chief’s Authority Act was repealed and replaced by the Fair Administrative Act No. 4 of 2015. The Committee, however, observes that the Fair Administrative Act No. 4 of 2015 does not explicitly refer to or repeal the Chief’s Authority Act, and that the copy of the Chief’s Authority Act, Revised Edition 2017, communicated by the Government, retains the above-mentioned sections 13–18. The Committee therefore requests the Government to indicate the specific provisions which repeal sections 13–18 of the Chiefs’ Act or otherwise to take the necessary measures to ensure that these sections are repealed, in order to bring the legislation into conformity with the Convention and with practice, since the Government previously indicated that these provisions had never been enforced.

Article 25.Adequate penalties for the exaction of forced labour. The Committee has previously referred to section 266 of the Penal Code, under which any person who compels a person to labour is guilty of a misdemeanour, punishable with imprisonment for a term not exceeding two years or with a fine, or with both (section 36). However, if this offence is committed for the purpose of exploitation, the person committing the offence shall be charged with the appropriate offence as specified in the Counter Trafficking in Persons Act (section 266A). According to section 3 of the Counter Trafficking in Persons Act, the offence of trafficking in persons for the purpose of exploitation is punishable with imprisonment for a term of not less than 30 years or to a fine, or to both. The Committee takes due note that in its report on the application of the Worst Forms of Child Labour Convention, 1999 (No. 182), the Government indicates that it has drafted an amendment to the Counter Trafficking in Persons Act to remove the option of a fine in lieu of imprisonment.

In this regard, the Committee recalls that when the sanctions envisaged to punish forced labour consist of a fine or a very short prison sentence, they do not constitute an effective sanction considering the seriousness of the violation and the fact that the sanctions need to be sufficiently dissuasive. The Committee therefore urges the Government to take the necessary measures to adopt the amendment to the Counter Trafficking in Persons Act so as to ensure that trafficking can not be punished with a simple fine. It also requests the Government to clarify how the provisions of section 266 and section 266A are applied in practice, giving examples of court decisions handed down on the basis of these sections and indicating the type of penalties imposed.