Individual Case (CAS) - Discussion: 2013, Publication: 102nd ILC session (2013)

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

A Government representative recalled that when the present case had first been considered by the Committee in 2006, the only concern had been the delay in enacting the draft labour legislation. The Employer, Worker and Government members had acknowledged that the draft texts developed during the labour law reform in 2004 would adequately address the concerns raised by the Committee of Experts under Articles 2(1) and 7(1) of the Convention. The labour law reform had been completed in 2007 with the enactment of five texts, which aligned Kenyan labour legislation with international labour standards. The new laws, which had been developed through a tripartite consultative and participatory process, ensured that the principles of the Convention were well articulated in the Employment Act, Chapter VII of which was devoted to the prohibition of child employment, the extension of the minimum age to all types of work, including industrial work, the regulation of light work and the prohibition of the worst forms of child labour. Between 2007 and 2009, subsidiary rules and regulations derived from the main legislation had been developed through a tripartite process. They included a list of hazardous work, rules prescribing light work in which children between 13 and 16 years could be employed and the terms and conditions of that employment. Those texts had been forwarded to the Attorney-General for alignment with other laws before publication. The principles and requirements of the Convention were therefore fully provided for in national law.

Since 2007, other legislative, administrative, institutional and constitutional measures had been taken to ensure the protection of children against child labour. The new Constitution, promulgated in 2010, established specific rights for children, youth, persons with disabilities, minorities and marginalized groups and older members of society. Under article 53(l)(b) of the Constitution, every child had the right to free and compulsory basic education, while article 43(f) set out the right to education. In accordance with the Constitution, section 7(2) of the Children’s Act set out the right of every child to free basic education, which was compulsory. In 2010–11, the draft National Child Labour Policy had been implemented through the National Steering Committee, district child labour committees (now known as county child labour committees) and locational child labour committees, with child labour programmes and activities being carried out under the supervision of the Child Labour Division. The National Child Labour Policy was now before Cabinet for approval. The same period had seen the development and adoption of the Integrated National Social Protection Policy, under which priority was given to the social protection of orphans and vulnerable children, and the Employment Policy, under which measures were fast-tracked for the creation of employment and the promotion of the participation of women and youth to assist in combating child labour. The Basic Education Act 2013, guaranteed the right of every child to free and compulsory basic education and penalized parents who failed to ensure the school attendance of their children. The Ministry of Labour had now for the first time been allocated a budget for child labour activities, both centrally and throughout the country. Child labour had been identified as one of the priorities of the Decent Work Country Programme (DWCP) 2012–15, and was covered by the Medium-Term Plan (2013–17) and the Strategic Plan.

With regard to the specific issues raised by the Committee of Experts, she stated that Kenya had continued its efforts to improve the child labour situation through legislative and constitutional reforms, technical assistance and relevant projects and programmes. These were assisted by continued support from ILO–IPEC, and more recent programmes, including the Strengthening of the National Action Plan (SNAP), Tackling Child Labour Through Education (TACKLE) and Youth Entrepreneurship Facility (YEF). It was the Government’s responsibility to provide free education to all Kenyan children and the Basic Education Act guaranteed free day secondary schooling, free primary education and free early childhood development and education. The rapid assessment survey of child labour in salt mines in Coast Province, conducted by the ILO–IPEC TACKLE programme, had found that child labour had been prevalent prior to 2006, but that children no longer worked in the salt mines. The Ministry of Labour had strengthened labour inspection to capture any child labour activities, not just in Magarini, but nationally. The Government recognized the need, identified in the rapid assessment survey, to carry out a national child labour survey; the intention was to conduct a comprehensive labour force survey with a module on child labour, although it would only be carried out once funds were available. With regard to the age of completion of compulsory schooling, under the Basic Education Act 2013, the education system included eight years of primary education, four years of secondary education and four years of university. Under section 33 of the Act, no child could be denied basic education for lack of proof of age, and discrimination against children seeking admission on any ground including age and the employment of children of compulsory school age in any labour or occupation that prevented them from attending school was prohibited. The Basic Education Act therefore sought to capture the requirements of the Convention and the concerns of the Government that all children, including those who commenced school after the required age or dropped in and out of school, were able to gain access to free and compulsory education, as guaranteed by the Constitution, and were at the same time protected against child labour. The efforts made emphasized the Government’s recognition that compulsory education was one of the most effective means of combating and preventing child labour.

With reference to the determination of hazardous types of work, she indicated that the first list of hazardous work had been finalized in consultation with the social partners in 2008 and forwarded to the Office of the Attorney-General. Soon after that, the new Constitution had resulted in a priority legislative agenda and the requirement for all laws and subsidiary legislation to be aligned with the Constitution. The process of the alignment of labour laws with the Constitution was under way, and it would subsequently be necessary to align the subsidiary regulations. A copy of the list of hazardous work, once adopted, would be forwarded to the ILO. She added that once the regulations to the Employment Act had been adopted, in accordance with the process outlined above, the concerns raised in relation to the admission to hazardous work from the age of 16 and the determination of light work would be addressed. A consultation process was being carried out on the question of granting permits for artistic performances, which would also be covered by regulations. In addition, the Government acknowledged the need for an amendment to address the conflicting age provision of the term “minor” in section 8 of the Industrial Training (Amendment) Act 2011. She reaffirmed the commitment and support of her Government for the application of the standards system to ensure the promotion and achievement of social justice. Within the priorities schedule provided for under the national Constitution, the Government undertook to fully align labour laws and subsidiary regulations with the requirements of the Convention and would provide the necessary texts to the Office. In view of the above, she called her Government for further consideration of the present case by the Committee of Experts to be discontinued.

The Employer members stated that the case concerned a fundamental Convention, ratified long ago (1979), that had been the subject of numerous comments over many years (1995, 1997, 1998, 2001, 2003, 2004, 2006, 2008, 2009, 2010, 2012 and 2013). In recent years, the Government had tried to find solutions, with support from IPEC. Despite that, in its last observation the Committee of Experts had referred to many issues that remained outstanding. With regard to Article 1 of the Convention, it had noted that 1,050 children had been withdrawn from child labour and 350 had been kept in school. The enrolment rate in primary school had risen to 92.5 per cent in 2009. Nevertheless, children were failing to complete the school year and, according to the 2009 census, 4 million children of school age had dropped out of school. With regard to Article 2(3) of the Convention, the Employer members indicated that there had been no progress in its application. There was still a gap between the minimum age for admission to employment (16 years) and the age of completion of compulsory schooling (14 years). No clear solution to the problem had been found. With regard to Article 3(2), concerning the determination of hazardous work for children under 18, although a list had been approved by the National Labour Board, it had yet to be published, despite the technical assistance provided by the Office. Referring to Article 3(3) of the Convention, they pointed out that no progress had been made in issuing regulations in respect of the hours of work and establishments in which children aged at least 16 years could work, including certain types of hazardous work. The light work covered by Article 7 of the Convention had also yet to be determined. Recalling that the Convention was a fundamental one, they urged the Government to bring its legislation into line with the Convention and to request ILO technical assistance if necessary.

The Worker members noted that, once again, the Committee of Experts had found that several provisions of the Convention were not being respected. Firstly, there was a notable lack of reliable data on the number of children enrolled in school, those in a situation of child labour or children who combined school and work. The data that were available were confusing and at times, even contradictory. A 2008 report had put the number of children in work at 756,000, whereas the 2009 national census had shown that nearly 4 million children of school age were not attending school. The net enrolment rates at the primary level had been 83.2 per cent in 2005, 92.5 per cent in 2008 and 96 per cent in 2011, while at the same time other statistics indicated that about 20 per cent of all primary school children did not complete primary school. According to UNESCO data for 2011, among children aged between 5 and 14 years, three out of four attended school, and a third of them were working. While those figures appeared contradictory, they were explained by the fact that one child out of every three combined school and work. Furthermore, university research revealed that 45 per cent of children combined school and work in 2010. In addition, there were no reliable data on child labour by gender or sector, particularly in plantations, domestic work, salt mines, the sale of illegal substances on the streets, and prostitution. In 2012, in Busia County, over 29,000 children were working, nearly half of them in sugar or tea plantations, almost all of whom were AIDS orphans or from broken homes; about 30 per cent were in domestic work; and the rest were street vendors or engaged in drug or arms trafficking. At times, children had even been recruited during elections to disrupt the campaigns of political opponents. The country needed reliable data in order to be able to take useful and effective action against the large number of children who were not enrolled in school. In that regard, it should be noted that the Government had not provided the specific information requested from an October 2012 child labour survey, or the rapid assessment survey on child labour in salt mines in Coast Province. While it was still necessary to analyse the reasons why children were not enrolled in school and ended up in child labour, some of the relevant factors were parental poverty, family situation (deceased or separated parents), and also certainly the cost of education.

Secondly, the Government did not appear to be making efforts to remedy the legal situation. There was a legislative gap between the age of completion of compulsory schooling (14 years) and the minimum age for admission to employment (16 years). The Government planned to remedy the situation by waiving tuition fees for the first two years of secondary school and proposing to extend the age of compulsory school to an age higher than the minimum age for admission to employment (18 years), but neither of those measures had been adopted, despite the fact that the Convention specified that the minimum age for admission to employment should not be lower than the age of compulsory schooling. Moreover, the Government had not yet definitively established the list of types of hazardous work prohibited for children under 18 years, or the regulations concerning the hours of work and establishments in which children aged at least 16 years could work. In addition, the list of light work on which children of 13 years could be employed and the procedure for granting permits allowing children below 16 years of age to take part in artistic activities had not yet been adopted. The Worker members emphasized that the situation had gone on too long, was unacceptable and had fully warranted a double footnote so that it could be discussed by the Conference.

The Worker member of Kenya recalled that although the Government had ratified the Convention voluntarily in 1979, over 30 years later it still had to comply fully with its principles in both law and practice. When the case was last discussed in 2006, the Committee’s conclusions had emphasized the Government’s promises that the concerns raised by the Committee of Experts would be addressed through the adoption of the newly drafted labour laws. The Committee had identified the need for ILO technical assistance, which had been provided. However, eight years later, the Committee of Experts was still raising the same concerns. These concerned, in particular, the high number of children who were not attending school and were involved or at risk of being involved in child labour, with the Government being urged to undertake a child labour survey. In 2006, the Government had undertaken to address the problem of the gap of two years between the age of 14, when free compulsory primary education ended, and the minimum age for admission to employment, which was 16 years. However, seven years later the Government was still making the same promise. Although a list of hazardous work for children under 18 years of age, covering 18 types of hazardous employment, had been determined in 2008 by the Government, the Central Organization of Trade Unions and the Federation of Kenya Employers, it was unacceptable for the Government to now advance the excuse that the list was currently being reviewed. Even though the Government had informed the Committee in 2006 that the Minister responsible for the Children’s Act had issued regulations respecting the hours of work and establishments in which children under the age of 16 years could work, including hazardous types of work, it was once again indicating that the relevant regulations were being reviewed and that a copy would be supplied once they had been adopted. Similarly, despite the promise made in 2006 to issue rules and regulations on light work and hours of work for children under 13 years of age, the Government had now indicated that those rules and regulations were yet to be completed and that the texts on light work in which a child of 13 years and above could be employed were still in the Office of the Attorney-General pending adoption. With regard to measures requiring permits to be issued for children participating in cultural and artistic activities, the Government had once again made its usual statement that the matter had been taken up with the relevant ministries and that the Office would soon be informed of the outcome of the discussions. He therefore called for the Government to be asked to supply full particulars in response to all the points raised by the Committee of Experts. He regretted the Government’s continued inactivity. If the issues were not addressed urgently and decisively, the future of the country could be compromised irreparably through the destruction of future generations. The Government should establish clear short-term deadlines and a roadmap for addressing all the concerns now and in the years to come. Technical assistance would be useful and the Government, in conjunction with the social partners, should also explore the feasibility of opening village polytechnics for primary school pupils who did not go on to secondary school, with the provision of soft loans to help them remain in school until the age of 16, which would also help to address youth employment. These were the issues that the newly elected Government had undertaken to deliver as flagship promises. He therefore called for practical steps to be taken for the elimination of child labour in collaboration with the social partners, instead of the production of statistics as an end in itself.

The Employer member of Kenya observed that since the ratification of the Convention in 1979 many efforts had been made to eliminate child labour, especially in the institutional context, and that the Committee of Experts had noted certain progress. The Government had taken initiatives and there had been a net increase in the number of children attending primary education. However, 20 per cent of all children failed to complete primary education. The Government needed to address that problem rapidly, particularly since access to free and compulsory education was now a constitutional right. The efforts made had been slowed down by the reform process, but she urged the Government to expedite its action on the issue. There had been inordinate delays in addressing the problems identified by the Committee of Experts, including the gap between the ending of compulsory primary education at 14 years and the minimum age for admission to employment at 16 years. She agreed that the minimum age of completion of compulsory schooling should not be lower than the age at which young persons were allowed to start working. She also called on the Government to rapidly complete the process of the adoption of the list of hazardous types of work prohibited for young workers, on which tripartite agreement had been reached, and concerning which the delay was unwarranted. The same applied to the list of light work allowed for young workers, as well as the regulations under the Education Act, which had already been prepared in 2005, according to the Government. The Ministry of Labour should urge those responsible to act quickly. She also supported the idea of issuing permits for children wishing to participate in artistic performances, establishing their hours and conditions of work. She called on the Government to request ILO technical assistance where necessary and indicated that Kenyan employers were willing to work with the Government to address the issue conclusively.

The Worker member of Swaziland stated that over 30 years after the ratification of the Convention, the Government had failed to address the issue adequately, resulting in the worsening and growing incidence of child labour. It was particularly disturbing that since 2005 the only response by the Government to the calls made by the Committee of Experts had been limited to promises, while children continue to be abused and exploited. Although the policy measures adopted seemed impressive, putting them into practice had proved to be a challenge. Serious gaps in implementation remained, which required rapid responses if any meaningful results and changes were to be seen in the near future. There was even a temptation to question the political willingness of the Government to enforce the legal framework. Recalling that the Government had ratified the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), he emphasized the need for the collaboration and engagement of all the social partners for the achievement of the total eradication of child labour in the country. Although the trade unions had repeatedly identified and fought child labour practices, the active and effective participation of the trade unions had largely been excluded from Government responses. The spirit of social dialogue ensured collective responsibility and ownership, not only in policy formulation, but also implementation and enforcement. The Government’s past efforts had failed and there was therefore a need for a new approach to deal with the problem. Each day that passed without clear action to combat the challenge not only diluted the Government’s efforts, but had a residual effect for the future. The social impact of child labour had not only worsened the present fiscal situation, but also the country’s capacity for economic transformation in future. He therefore called for technical support to be provided to the Government within a tripartite framework as a means of finding a lasting solution to the current challenge.

The Government member of Uzbekistan stated that the Government had completed the labour law reform process in 2007 and that five texts had been adopted aligning the labour legislation with international labour standards. The Employment Act contained a chapter on the prohibition of child labour which extended the minimum age provisions to industrial work, regulated light work and prohibited the worst forms of child labour. The 2010 Constitution set out specific rights for children and other vulnerable groups, including the disabled. Over the period 2010–11, the draft National Child Labour Policy had been applied and had been sent to Cabinet for approval. Initiatives had been taken to combat child labour and an institutional framework had been established under the National Steering Committee, including local child labour committees. Efforts had continued to align laws and regulations with the provisions set out in the new Constitution and reform measures were being adopted to ensure that all children up to the age of 18 would have access to free education. The rapid assessment survey of child labour in the salt mines in Coast Province had shown that children had worked in the mines up to 2006, but that was no longer the case. Improvements had also been made in the labour inspection system to detect cases of child labour and it was planned to include a module on child labour in the labour force survey. All of those actions emphasized the Government’s commitment to take action to eliminate child labour. The Committee should take into account the Government’s resolve to comply with the Convention and should call for further consideration of the case by the Committee of Experts to be discontinued.

The Government member of Zimbabwe expressed appreciation for the efforts made by the Government of Kenya to align the national legislation with the Convention, as well as the inclusion in the new Constitution of issues related to child labour and the employment of young persons. Those were positive developments which would help the Government and the social partners to address any remaining child labour issues.

The Worker member of Nigeria, recalling that child labour was a threat to society, observed that in Kenya many urban and rural children were not in classrooms, but rather working under harsh conditions. In the context of the lack of relevant legislation, the incidence of under-age persons engaged in paid employment continued to rise. In essence, legal and policy gaps and inadequate administrative action, especially enforcement measures, had exacerbated the plight of child workers. The duty to stand up and act for the protection of children, their development and future was a collective one, and it was therefore particularly regrettable to see child prostitution in Nairobi, Kisumu and coastal areas, in the context of increased tourism. Although the Government had ratified the United Nations Convention on the Rights of the Child (CRC) 23 years ago, the Education For All (EFA) objective had not yet been met and a report of a non-governmental organization concerning the application of the CRC showed that 46 per cent of school children (5–14 years) were out of school, largely due to the 65 per cent contribution that parents had to make to school costs. Although the report of the Committee of Experts noted the indication by the ILO–IPEC TACKLE project that net enrolment rates at the primary level had increased from 83.2 per cent in 2005 to 92.5 per cent in 2008, those percentages clouded the urgency of the situation. The Government bore the responsibility to drive effective social dialogue at the national level, and needed to mobilize and engage the other social partners, as well as other segments of civil society in the fight to eliminate child labour. He therefore urged the Government to enact the Children’s Bill and implement the Education Act effectively, while also addressing the enforcement of regulations aggressively.

The Government member of Zambia welcomed the efforts made by the Government to address the outstanding issues relating to the minimum age and the right to education. Noting the legislative reforms and the legal framework developed to address those challenges; the Government was wished success with their effective implementation.

The Government representative thanked all those who had contributed to the discussion and who had recognized the efforts made in her country to combat child labour, with particular reference to the comprehensive legislative and constitutional reform measures. The Government was seeking to increase the enrolment and retention of children in primary and secondary school, for which purpose constitutional and legislative measures had been adopted, free primary and secondary education was being provided and initiatives were being taken to combat child labour. The Government also reiterated its recognition of the need for high-quality data on the child labour situation in the country and its commitment to including a child labour module in the labour force survey, subject to the availability of resources. It also reaffirmed that copies of the list of hazardous types of work would be provided to the Office once it had been reviewed and adopted, as would the other subsidiary regulations that were currently being reviewed. The delay in the adoption process had been due to the need to give priority to the constitutional reforms and to the other legislation required to address issues arising in relation to the violence that had followed the 2008 election. The Government was committed to aligning the legislation and the subsidiary regulations with the Constitution before their final adoption. With regard to the gap between the age of completion of compulsory primary school and the age of admission to employment, she emphasized that the Government was grappling with the need to ensure free and compulsory schooling for all children under 18 years of age, while also complying with the requirements of the Convention. It would request technical assistance to address the related issues. With regard to artistic performances, the Government would continue the consultation process with a view to achieving an amicable settlement on the issue, which would then be included in the regulations to be adopted in accordance with the procedure under the national Constitution. She reaffirmed the Government’s commitment to combat child labour and to comply with the requirements of the Convention.

The Worker members noted that child labour was a major challenge for development in Kenya, where an estimated 4 million children of school age were not in school, many of whom continued to work despite the hazardous conditions. Some progress had been made in education and literacy and the Government had made an effort to ensure access to free primary schooling; however, a million children were still outside the education system. The county programmes and IPEC had managed to remove a limited number of children from work and prevent others from dropping out of school in order to work. In light of this progress, modest though it was, the question arose as to why the Government had not accompanied this progress by bringing the national legislation into line with the Convention. The Government needed to have a credible plan for the progressive elimination of child labour. For that, it needed to: (i) establish a reliable database on children in school and/or at work; (ii) undertake a detailed analysis of the reasons why so many children worked when they should be enrolled in school; (iii) bring the legislation without delay into line with the provisions of the Convention respecting the minimum age for admission to work, the age of completion of compulsory education and the list of hazardous types of work prohibited for children under 18 years of age; and (iv) with the full involvement of the workers’ organizations, establish and adopt a five-year plan of action including targeted annual objectives, a school enrolment policy and measures, including dissuasive sanctions, to guarantee the effective application of the Convention. They urged the Government to specify its intentions as soon as possible and to accept a direct contacts mission on these matters.

The Employer members reiterated that it was now some 30 years since the Convention had been ratified, during which time the Committee of Experts had made numerous comments. The time had come for concrete results in terms of legislation, and surveys should be conducted in order to ascertain the magnitude of the problem in practice. The forthcoming session of this Committee needed to be in a position to examine updated information on specific legislative measures. The Employer members were not opposed to a direct contacts mission, as requested by the Worker members.

Conclusions

The Committee took note of the oral information provided by the Government representative and the discussion that followed relating to various issues, including the high number of children who were not attending school and who were involved in child labour, the age of completion of compulsory schooling, and the lack of legislation determining hazardous work, and regulating light work and artistic performances.

The Committee noted the Government’s indication that it was taking several measures to keep children in school and that it was committed to the elimination of child labour in the country. The Committee further took note of the Government’s commitment to implement the Convention through various measures, including the ILO–IPEC project to tackle child labour through education (TACKLE) and the ILO–IPEC project to support the implementation of the National Action Plan (SNAP). The Committee also noted the Government’s indication that it intended to conduct a comprehensive labour force survey with a module on child labour.

The Committee noted that several draft laws referred to by the Committee of Experts in its observations were still due for submission to Parliament for debate and adoption. While noting the various measures taken by the Government to combat child labour, the Committee expressed its deep concern regarding 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 Committee urged the Government to undertake a national child labour survey in the very near future.

Noting that the Education Act, which was adopted in January 2013, extended the compulsory schooling age up to 18 years, which was higher than the minimum age for admission to work (16 years), the Committee recalled that the Convention required member States to set a minimum age for work that was not less than the age of completion of compulsory schooling, and further emphasized the desirability of linking these two ages, as advocated by Minimum Age Recommendation, 1973 (No. 146).

The Committee noted the Government’s indication that it intended to prioritize and expedite the adoption of the necessary legislation to address the existing discrepancies with the provisions of the Convention. It recalled that this Convention had been ratified more than 30 years ago, that this case had been discussed by the Conference at its 95th Session in June 2006, and that the Government had expressed its intention to adopt the necessary legislation on children and child labour to conform to the provisions of the Convention. The Committee shared the serious concern expressed by several speakers that the review of the draft laws in question, which had been undertaken in consultation with the social partners and with ILO technical assistance, was completed in April 2004, but had yet to be adopted by Parliament. The Committee strongly urged the Government to ensure the adoption, in the very near future, of the necessary provisions to address all the issues of non-compliance with the Convention, including the determination of the types of hazardous work to be prohibited for children under 18 years of age, the regulation of periods of work and establishments where children aged at least 16 years may perform hazardous work, and the regulation of light work activities and of artistic performances.

The Committee requested the Government to accept a direct contacts mission to ensure the full and effective application of this fundamental Convention including the adoption of a time-bound action plan in this regard. It requested the Government to include in its report to the Committee of Experts, for examination at its next session in 2013, complete information regarding all issues raised by this Committee and the Committee of Experts. The Committee expressed the hope that it would be able to note tangible progress in the very near future.