Individual Case (CAS) - Discussion: 2001, Publication: 89th ILC session (2001)

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

A Government representative said that his Government had taken very careful note of the comments made by the Committee of Experts regarding the practical application of the Convention. He indicated that it was now planned to undertake a complete revision of both the Employment Act (Chapter 226) and the Employment Act (Children) Rules of 1977 within the framework of the general revision of the labour legislation. In May 2001, the Attorney-General had appointed a Task Force consisting of the various stakeholders (the Government, employers, workers and other interested parties) to undertake a comprehensive review of 23 chapters of the labour laws, with the assistance of ILO experts, to harmonize the domestic legislation and the various Conventions which Kenya had ratified. The Government had directed the Task Force to complete its work not later than December 2001.

With regard to the Bill on Children's Rights, a report had been submitted to Parliament in 2000, but had been referred back to the Task Force to undergo further detailed drafting in order to ensure an improved protection of children's rights. The Government sincerely hoped that the task force would be able to complete its work of reviewing the Bill very soon and indicated that it would be transmitted to the Committee of Experts. It should also be noted that Parliament was also very concerned to ensure that a very comprehensive Bill for the protection of children's rights in Kenya was in place in the very near future.

With regard to the application of Article 2 of the Convention, he said that the Government had taken very careful note of the Committee of Experts' comments concerning its intention to amend section 2 of the Employment Act so as to define a "child" as a person under 15 years instead of a person of 16 years of age, which would have the result of lowering the minimum age for employment or work under the Employment Act to 15 years. The Government representative recalled that his country had specified 16 years as the minimum age for admission to employment when registering the ratification of the Convention in 1979. In the light of the comments of the Committee of Experts on this point, the Government had decided not to effect any amendments in order to remain in compliance with this Article of the Convention.

With regard to the extension of the minimum age for admission to employment or work beyond industrial enterprises, he said that the Task Force would take careful note and would be guided by the Committee of Experts' comments.

With reference to the application of Article 3 of the Convention he indicated that the Government had taken a careful note of the comments made by the Committee of Experts on the need to consult the organizations of employers and workers during the deliberations by the Task Force in order to review the labour laws when determining the types of work to be prohibited for minors under the age of 18 because of the harm to their health, security or morals. Indeed, the tripartite members of the Task Force had recently been appointed under the chairmanship of one of the longest serving and most experienced industrial court judges in Kenya. The Government hoped that the present Task Force would develop appropriate protection legislation aimed at ensuring that minors' physical abilities and other relevant moral considerations were taken into account.

On the application of Article 7 of the Convention, he confirmed that the Government had taken careful note of the comments of the Committee of Experts regarding its previous report in which it had indicated that it was not yet considered to be the time to adopt legislation on the employment of children under 15 years of age on light work. It should be noted, however, that section 3 of the Employment Act (Children) Rules of 1997 allowed the employment of children with the prior written permission of an authorized officer, depending on the circumstances in which such light work was to be performed, bearing in mind the need to protect the children involved. In light of the various comments made by the Committee of Experts, this section of the Employment Act would be carefully re-examined by the newly appointed Task Force with a view to bringing the law into harmony with the relevant sections of the Convention.

With regard to Article 1 of the Convention, in conjunction with the relevant part of the report form, he said that, with the assistance of the International Programme on the Elimination of Child Labour (IPEC), the Government had just completed the draft child labour policy document. A copy of the above document would be transmitted to the Office before the end of June 2001. The draft child labour policy document also contained the national action plan, as envisaged in the context of the IPEC programme.

With regard to the activities of the Ministry of Education in cooperation with UNICEF, he reported that the measures taken to improve the provision of free and compulsory primary education included the school feeding programme carried out by the Government and the World Food Programme, with emphasis on the sustainability of the feeding programme through community activities in such areas as irrigation and cattle rearing. User charges had been regulated to reduce contributions by households as much as possible, and some scholarships had been awarded to girl children in the upper primary school and would continue to be granted.

Scholarships were also awarded to needy and deserving students in all public secondary schools amounting to 536 million Kenyan shillings for the year 2000-01. Textbooks had been provided to all primary schools in Kenya in key subjects through funds provided by, among other sources, the Netherlands Government and the World Bank through the STEPS project (Strengthening of Education at the Primary and Secondary Levels). Much guidance and counselling had also been provided with a view to reducing teenage pregnancies and the Government had taken measures to stop early marriages. A gender unit had been set up in the Ministry of Education, Science and Technology to ensure parity in school enrolments for both boys and girls, with assistance from the Forum for African Women Educationalists (FAWE), Kenya Chapter. Boarding schools had been set up in hardship areas, as well as mobile schools in nomadic areas, with a flexible curriculum to facilitate the participation by pastoralists and other nomadic tribes in cattle grazing and other economic activities before or after school. Curricula had been reviewed to reduce the number of subjects and the cost of teaching and learning aids, as well as to ensure in-service training for teachers. Measures had been taken to identify the persons with disability to ensure attendance at school by all children including the creation of more assessment centres throughout the country. Non-formal schools had been established where it was not necessary to complete the same number of years of study as in the formal system, and where there were no uniform or user charge requirements, with a view to improving overall enrolment rates. He added that Kenya was set to achieve universal primary education by the year 2005, which was within the Government's schedule to achieve education for all by 2015. Finally, action had also been taken for the integration of Madarassas (Islamic schools) into the normal formal education system, with a view to ensuring that no children were delayed in their education for reasons of religious belief.

With regard to the request by the Committee of Experts for information concerning the functioning of the Child Labour Unit, established in the Ministry of Labour and Human Resources Development, he indicated that it had been created in 1992 to ensure that child labour issues were taken into account in all government policies and programmes. It also coordinated all awareness-raising campaigns on the need to bring to an end to all forms of child labour, as well as to conducting workshops, seminars and other forms of media campaigns on the various ways of combating child labour. The unit had succeeded in elevating child labour issues into the national agenda in Kenya. It also coordinated the collection of data and devised ways of detecting clandestine child labour. It coordinated the activities of other stakeholders, such as the Federation of Kenya Employers and the Central Organization of Trade Unions for the elimination of child labour. Finally, the Unit had been established to continue with the implementation of the various national action programmes for the elimination of child labour once the IPEC programme had come to an end.

With regard to the national action plans adopted by the inspection system to improve controls over child labour, he undertook to continue the same course of action with the aim of identifying children working in dangerous occupations and taking the necessary remedial action. The Government would continue to furnish the results of such studies and of inspection visits to the Committee of Experts.

Finally, in response to the request made by the Committee of Experts for information on the collection of data on child labour, he confirmed that an inquiry on the current state of child labour throughout the country had just been completed by the Central Bureau of Statistics and that the final report would be published in April 2001. The Government undertook to transmit the results of the inquiry carried out by the Bureau to the Office by the end of June 2001.

In conclusion, he reiterated his Government's continued commitment to eradicate all forms of child labour in Kenya within the shortest possible time. The political will to accomplish this goal remained beyond question.

The Employer members thanked the Government representative for his detailed statement. Although the Committee of Experts had made comments on the case in 1995, 1997 and 1998, this was the first occasion on which it had been discussed by the Conference Committee.

They recalled that the Government had already announced in a previous report that a general revision of the labour legislation would be undertaken in the near future with the assistance of the ILO and in consultation with the social partners. The Government representative had stated that a Bill on children had been submitted to Parliament and was currently under examination. In this respect, the Committee of Experts had also noted that a change had been proposed in the definition of the term of "child", through an amendment to section 2 of the Employment Act, lowering the minimum age for employment or work. A child would now be defined as a person under 15 years of age, instead of 16. When ratifying the Convention, the Government had specified the age of 16 as the minimum age for admission to employment or work, in accordance with Article 2, paragraph 1, of the Convention. Kenya was therefore bound by that definition. However, the Employer members were not quite clear whether the amendments announced by the Government representative would be made under the Bill or in the context of the general revision of the labour legislation.

They recalled the observation by the Committee of Experts that the minimum age established by the Employment Act only applied to industrial enterprises, which constituted a clear shortcoming in the law. A similar situation pertained with regard to harmful work, which was prohibited for young persons under 18 years of age in accordance with Article 3 of the Convention. With reference to the conditions under which light work was permitted, they recalled that, according to Article 7 of the Convention, admission to light work was only permitted for persons over 13 years of age and only when the work was not such as to be harmful to their health or development or to jeopardize their school attendance. Moreover, the number of hours of such work were limited. Kenyan legislation contained no legal provisions on these matters.

They therefore called upon the Government representative to indicate whether all the points raised by the Committee of Experts were covered by the new legislation. Clarification would also be needed on the legislation which would cover the above issues. Would it be the new Bill or the revised labour legislation? Finally, the Government representative should indicate the schedule within which the legislative work would be completed.

With reference to the policy on child labour developed within the context of the IPEC programme, the Employer members noted the action plan developed in cooperation with UNICEF and the studies undertaken on the education system. They emphasized the positive intentions shown by the action plan and hoped that it would be implemented in large part. However, they also noted the estimates that some 3.5 million children between the ages of 6 and 14 did not attend school. While welcoming the statement by the Government representative that a study would be carried out on this issue and the respective data provided to the Committee of Experts, they expressed the fear that this signified that no studies of the issue had yet been carried out. They also noted that a reform had been undertaken of the inspection system within the framework of the action plan with a view to improving controls over child labour. They emphasized that such controls, carried out in a professional manner, were important in improving the situation of the children concerned. In conclusion, the Employer members said that precise information was still required. Up to now, the Government had only expressed its general intention of taking the necessary action.

The Worker members thanked the Government representative for the interesting information that he had provided to the Committee regarding the efforts and commitments undertaken by his Government. They noted that this was the first time that the Committee had examined problems relating to the application of Convention No. 138 in Kenya, ratified in 1979, and they noted with satisfaction that Kenya had also recently ratified the Worst Forms of Child Labour Convention, 1999 (No. 182). The latter was the ILO Convention which had registered the most ratifications in a short period of time. This clearly showed the broad consensus which existed worldwide regarding the need to take steps to not only diminish, but totally eradicate the scourge of child labour.

They wished to remind the Committee that, if ratification was a good thing, effective application of ratified Conventions was even better. In fact, while it was to be hoped that ratification was the fruit of a State's political will to set things in motion, the progress that interested this Committee the most involved the actual situation in the country. The objective of Convention No. 138 was for governments to take measures in law as well as practice to ensure respect for the minimum age for admission to employment.

The Committee of Experts' observations concerned a number of points. The first point raised by the Experts concerned the Employment Act. The Worker members noted that this Act was in the process of being revised and that discussions were currently taking place regarding the substance of the amendments to be made. They pointed out that the Committee of Experts had asked the Government to take into account two current legal provisions which were contrary to Article 2 of Convention No. 138. First, in the ratification instruments, the Government of Kenya had specified 16 years as the minimum age for admission to employment or work. It would now be appropriate to incorporate this commitment into the national legislation, which currently sets the minimum age for admission to employment for work at 15 years. Second, the Worker members noted that, for many years, the Committee of Experts had drawn the Government's attention to the fact that, under Kenyan legislation, the minimum age for admission to employment or work applied only to industrial enterprises. The Worker members stated that, in order to conform the legislation to the provisions of the Convention, the principle of a minimum age for admission to employment or work should be extended to all sectors of the economy. Nevertheless, despite the numerous observations made by the Committee of Experts regarding the incompatibility of this provision with the Convention, the Government had apparently failed to change the situation.

The second point raised by the Committee of Experts concerned "hazardous work". In fact, Convention No. 138 contemplated that certain types of work should be prohibited for minors less than 18 years old because of the harmfulness to their health, their security or their morals. The Worker members could not help but observe that, 22 years after Kenya had ratified this Convention, the Government had still not issued a list determining these types of work. In this regard, they highlighted the importance of the list, particularly now that Kenya had also ratified Convention No. 182 and they expressed the hope that, in ratifying this new instrument, the Government would issue a list of hazardous jobs as quickly as possible.

The third point raised by the Committee of Experts concerned the lack of a definition of so-called light work. They recalled that, on this point as well, the Committee of Experts had made observations for many years. Despite these observations, the legislation and practice remained in violation of the provisions of Convention No. 138. They therefore stated that the Government should provide the Office with a definition of light work, an age limit for children that could be employed in this type of work (not to exceed the age of 13) and, lastly, a prescription regarding the number of hours and the conditions of such employment or work.

It was with great interest that the Worker members noted the technical assistance offered by the IPEC programme, as well as the cooperation with UNICEF in combating the problem of child labour in Kenya and improving the educational system. They particularly highlighted the efforts undertaken by the Government, with the assistance of the IPEC programme to improve the operation of the labour inspection system to improve controls over child labour. They were convinced that labour inspection was an essential tool for the effective application of the labour laws in general and of child labour legislation in particular.

In light of the statistics contained in the Committee of Experts' observation, the Worker members considered that the child labour situation in Kenya was very serious. They took due note of the promises made by the Government representative, but noted at the same time that there was a long way to go. For this reason, they requested that the Kenyan Government continue its efforts to combat child labour and to supply the Committee of Experts with information concerning the outcome of these efforts.

The Worker member of Niger said that the case of Kenya concerned the specific issue of the minimum age of admission to employment or work, or in other words the problem of child labour. Although, when ratifying the Convention in 1979, Kenya had specified a minimum age of 16 years, it was now tending to violate the Convention. He expressed puzzlement at the draft amendment to the legislation referred to by the Government representative. At a time when nearly all the member States of the ILO were ratifying Conventions Nos. 138 and 182, it was surprising that Kenya was examining retrogressive draft legislation to make children work at a younger age. Sections 3 and 25 of the 1977 Regulations were revealing and insidious in this respect. The report of the Committee of Experts had been very clear in showing that the Convention was violated and that this was done on purpose. This was demonstrated by the fact that the minimum age of admission to employment did not apply to all economic sectors, as if there were sectors in which it was permissible for children to work. He warned the Committee that the Government was merely trying to gain time and that the lives of millions of children were at stake.

The Worker member of the United Kingdom explained that the purpose of his comments was both to reinforce the findings of the Committee of Experts with regard to the need for legislative change and to encourage continued and more rapid progress by the Government in the implementation of the national action plan envisaged in the context of the IPEC programme. He noted with particular pleasure that Kenya had ratified Convention No. 182 in May 2001 and hoped that the complementary nature of the two Conventions would help the Government and the social partners develop further effective tripartite action in pursuit of the aims of both Conventions.

He expressed puzzlement as to why the Government, at a time when the discussion and adoption of Convention No. 182 by the Conference had further clarified the requirements of Convention No. 138, and when it was engaging so positively with IPEC, should have even considered reducing the minimum age of admission to employment, in clear breach of the Convention. He emphasized that such a course of action would send all the wrong messages about the political will of the Government to pursue the effective abolition of child labour, not only to the social partners, civil society and the international community, but in particular to unscrupulous employers who sought excuses to continue their exploitation of children. He therefore welcomed the statement by the Government representative that the amendment would not be pursued. He added that legislation that applied only to the industrial sector was not in conformity with the Convention. It was evident that in a country where so much of the population, both adults and children, worked in agriculture, where domestic service was also a major source of employment, and where commercial services, both formal and informal, were also important, the fact that the laws on the minimum age of admission to employment only dealt with industrial work excluded the vast majority of child labourers from their scope. It was also extraordinary, in view of the fact that the work of the Kenya Union for Domestic, Hotels, Educational Institutes, Hospitals and Allied Workers (KUDHEIMA), in collaboration with the ILO, on children working in domestic service, was a significant example of good practice. He emphasized that the lack of conformity with the Convention, and particularly the ridiculously low scope of coverage of the law, was a major issue which had to be addressed with speed, particularly in view of the hazards involved in agriculture and the incidence of child abuse in domestic service.

He welcomed the preparation by the Ministry of Education of draft legislation to make primary education compulsory, as well as other initiatives, including those relating to the girl child. He emphasized that Convention No. 182 complemented Convention No. 138 and the central importance of education in combating child labour. Recommendation No. 190 also called on international institutions to support the aims of Convention No. 182. Moreover, in its discussions of the Joint ILO/UNESCO Committee of Experts on the Application of the Recommendation concerning the Status of Teachers (CEART) report on the status and conditions of teachers, he recalled that the Committee had re-emphasized the right of teachers to bargain collectively and the need for them to be adequately paid. In that connection, he noted that, although the Kenyan Teachers' Union had negotiated a wage increase with the Government, and despite the support of the STEP programme, the IMF had stopped the Government paying the agreed increase as a condition for its loan.

The most serious aspect of the case was that the Employment (Child) Rules of 1977 effectively permitted all types of child labour, regardless of age. The requirement for consent from parents or from the Labour Commissioner did not remove the hazards from particular occupations. Moreover, the Rules did not even clearly limit the employment of under-age children (that is, children under 16 and over 12 years of age) to light work. As a result, there was no effective lower age limit, despite the amendment to section 2 of the Employment Act. The Rules and the Act contradicted one another, and both were in contradiction with the Convention. He added that the legislation on hazardous work and the relevant age limit was insufficient. Nevertheless, he expressed satisfaction that the Government was training labour inspectors to deal with child labour issues, including hidden child labour, and that innovative communications and awareness-raising techniques were being used in Kenya. He also looked forward to the establishment and implementation of a time-bound programme in Kenya under Convention No. 182, and to a major acceleration in the rate of transfer of children from work to school.

He said that Convention No. 138 was to a great extent an aspirational Convention. Setting a minimum age alone does not magically remove child labour. He therefore urged the Kenyan Government to continue its cooperation with IPEC, develop the tripartite structures and provision of education necessary to eliminate child labour in the country and ensure that its legislation was in conformity with Convention No. 138, rather than sending the wrong messages to the country and the world about its political will.

Finally, he referred to a text on child labour that was being prepared for the special session of the United Nations General Assembly on the rights of the child, which referred to improving living and working conditions for children who worked by promoting quality basic education and social and economic policies aimed at poverty reduction to help families of working children with employment and income-generating opportunities. He drew the Committee's attention to the fact that this text made no mention of the minimum age for admission to employment and was therefore in contradiction with Conventions Nos. 138 and 182, as well as with the Declaration on Fundamental Principles and Rights at Work, and would ignore the call on international institutions and member States to support the aims of Convention No. 182, thereby sending hugely confusing and wrong messages about their obligations to governments such as that of Kenya.

The Government representative said that he had listened very carefully and with keen interest to the valuable comments made by the Employer and Worker members and other speakers. He confirmed that the Government would take all the necessary steps to ensure full compliance with the provisions of the Convention. The two reports mentioned, namely the child labour policy document and the report by the Central Bureau of Statistics concerning child labour in Kenya today, would also be made available to the Committee of Experts for its next session at the end of the year.

In response to the comments made by the Employer members concerning the minimum age for admission to employment or work, he indicated that, when ratifying the Convention in 1979, a minimum age of 16 had been specified. However, this had created a problem in view of the fact that most children completed schooling at the age of either 14 or 15, thereby leaving a gap before they were able to enter work. The proposal had therefore been made to amend section 2 of the Employment Act with a view to harmonizing the minimum age with the completion of compulsory education. Nevertheless, in view of the comments made, it had now been decided to leave the amendment aside at present and therefore to continue respecting the minimum age for admission to employment or work of 16 as specified when ratifying the Convention. In view of the fact that the Employment Act did not contain a definition of light work or specify a minimum age for hazardous work or cover sectors other than industrial enterprises, the Task Force would be responsible for ensuring that action was taken to remedy these shortcomings.

The Employer members regretted that the Government representative had not responded to all the issues raised. The Conference Committee needed to be informed of the precise wording of the legislation and the time schedule within which the legislative work would be carried out. Further information should therefore be supplied to the Committee of Experts. The Government not only needed to amend its legislation, but also its practice, to bring both into conformity with the Convention.

The Worker members noted the statements made by the various speakers and said that, although the Kenyan Government had the political will to combat child labour, they nevertheless noted that certain legal provisions for the practice of child labour still persisted. For this reason, they urged the Government once again to make more effort in this field, with the assistance of the IPEC programme and other organizations, such as UNICEF.

The Committee noted the information provided by the Government representative and the discussion that followed. It noted with concern that, according to the information provided by the Government, more than 3.5 million children did not attend school and were working in the various sectors of the economy. The Committee further noted that, although the Government had taken certain action to protect children (boys and girls) engaged in hazardous work in over 600 enterprises, fewer than half of them had been removed from such work. The Committee also observed that, according to official data, over 800,000 children worked on the streets. This form of work had generally been considered to be harmful to children's health and morals. In this respect, the Committee noted the ratification of Convention No. 182 by Kenya.

The Committee expressed concern, in view of the dimensions of the problem, that the Government had not yet implemented the draft child labour policy developed with the support of IPEC. The Committee also noted that in the process of revising the legislation that was currently under way, the minimum age for admission to employment or work, which had been set at 16 years when the Government had ratified the Convention, could be lowered to 15 years. The Committee noted that, in its observation, the Committee of Experts had requested the Government to ensure that the minimum age was not reduced to 15. It also noted that in the same observation the Committee of Experts had requested the Government to take the necessary measures to extend the application of the legislation, and therefore the Convention, to all sectors of the economy, since the current provisions of the legislation respecting the minimum age only applied to industrial work. The Committee further noted that there was also no provision determining work which was considered dangerous nor on work considered to be light work. The Committee noted with interest the Government's undertaking that it would take into consideration the different matters raised by the Committee of Experts, as well as the composition of the Task Force and the draft legislation that was under examination.

The Committee therefore urged the Government to adopt the necessary measures to combat child labour. To this end, the Committee hoped that the Government would soon implement the draft child labour policy set out in the recently completed national action plan, and that it would allocate the resources to put it into effect. The Committee also hoped that the ongoing legislation revision process would not affect the minimum age for admission to work or employment which had been set at 16 and in conformity with the commitment made by the Government representative to the Committee, and that the necessary provisions would be adopted to extend the application of the minimum age to all types of work, in addition to industrial work, and that a definition would be adopted of dangerous work, and that work considered to be light work would be regulated. The Committee also urged the Government to strengthen labour inspection activities with a view to the protection of young persons, and particularly those working in agriculture. The Committee further urged the Government to submit a detailed report specifically addressing the matters raised above so that the Committee of Experts could examine it at its next session in November-December 2001. The Committee hoped that collaboration between the Government, IPEC and UNICEF would be strengthened with a view to consolidating the action taken to combat child labour.