Caso individual (CAS) - Discusión: 2006, Publicación: 95ª reunión CIT (2006)

Convenio sobre la edad mínima, 1973 (núm. 138) - Kenya (Ratificación : 1979)

The Government communicated the following written information.

The Government had previously given responses to the Committee of Experts and is happy to note that they have been broadly acknowledged in the current Experts' report as indicative of progress. Kenya wishes to confirm that it is fully aware, not only of our obligation in accurately reporting on progress made in this endeavour, but also in making genuine progress that represents concrete, sincere and well-intentioned reforms to our labour statutes. Kenya finds itself in a situation that calls for carrying out extensive revision of laws that have been in existence for many years; most of which are a carry-over from the colonial administration.

It is in this regard that Kenya would like to thank the ILO for responding to our request for technical assistance to carry out a total overhaul of our labour laws, as well as other Governments including the United States, Netherlands and Canada who, through the ILO action programmes, have provided invaluable technical assistance which has fed into the review process.

It is noteworthy that the achievements made so far have been possible due to the cordial tripartite relations with the social partners: the Central Organization of Trade Unions (COTU-K) and the Federation of Kenya Employers (FKE).

Our comprehensive labour law review process was completed in April 2004 and the draft bills are due for submission to Parliament for debate and their enactment into law.

As pointed out in the report of Experts, the proposed bills adequately cover the concerns raised in Article 2(1) and Article 7(1) of the Convention. In view of the fact that other requested information on the draft bills relates to subsidiary legislation, rules and regulations, which are derived from the main laws, while such regulations have already been drafted, these will be made available once the draft bills are enacted into law. This will also address concerns raised under Article 2(3), Article 3(2), Article 3(3), Article 7(3) and Article 8.

The Industrial Training Act, whose concerns are raised under Article 6, is being reviewed, and we assure the Committee of Experts that once this is finalized the relevant copies will be availed immediately.

As pertains to the legislation on age for completion of compulsory education, the Government, in another exercise to review the Education Act, has appointed a committee to make recommendations on, among others, the age of completion of compulsory schooling, which will be harmonized with the requirements of the Convention and hence eliminate discrepancies pointed out by the Experts.

Besides the proposed amendments in the laws, the Government continues to intensify programmes aimed at eliminating child labour in the country with the help of the ILO/IPEC and other supporting organizations. The time-bound programme (TBP) on elimination of child labour, which is ongoing, addresses child labour and all activities and programmes tailored to be supportive of the implementation of Convention No. 182. We would however appreciate it if we receive further technical assistance in the implementation of Convention No. 138.

In addition, before the Committee, a Government representative took the opportunity to share Kenya's experience on labour law reform with other member States finding themselves in a similar situation. She indicated that her Government was fully aware not only of its obligation to accurately report on the progress made with regard to the issues raised by the Committee of Experts, but most importantly of its obligation to make genuine progress through a concrete and well-intentioned labour law reform. She expressed her appreciation to the Office and to the Governments of the United States, the Netherlands and Canada for providing invaluable technical assistance in the course of the review process. She thanked the Central Organisation of Trade Unions and the Federation of Kenya Employers for their contribution to the labour law review process, which had been completed in April 2004. The speaker maintained that the draft Bill, which was currently due to be submitted to the Parliament for adoption, addressed the points made by the Committee of Experts under Articles 2(1) and 7(1) of Convention No. 138. As to the concerns raised by the Committee regarding Articles 2(3), 3(2), 3(3), 7(3) and 8, the speaker informed the Committee that these were covered by subsidiary legislation, namely draft rules and regulations, which would be enacted subsequently to the main Act. Similarly, the Industrial Training Act that raised issues under Article 6 of the Convention was being reviewed and would be made immediately available once finalized. Turning to the question of the age for completion of compulsory education, the speaker stated that her Government had appointed a committee to examine the issue and make recommendations with a view to harmonizing national legislation with the standards of Convention No. 138. She emphasized her Government's resolve and commitment to comply with the requirements of the Convention just as it had done with Convention No. 182 on the Worst Forms of Child Labour. With a view to protecting young persons, which was a key objective for the Government, programmes aimed at eliminating child labour such as the time-bound programme, had been intensified. In closing, the speaker highlighted the importance of the support offered by the Office through the International Programme for the Elimination of Child Labour (IPEC) and expressed her Government's wish to receive further technical assistance in the implementation of the Convention.

The Worker members were astonished that the Government replied to the observations of the Committee of Experts with yet another promise that copies of requested legislation would be submitted. Instead of having provided an explanation of obstacles and difficulties encountered that would explain the delay, the Government seemed to congratulate itself for progress achieved without any concrete proof. Indeed this was only self-proclaimed progress. Already during previous discussions on this case in 2001 and 2003, the Government had undertaken to amend or repeal the legal texts to ensure the full application of a number of Articles of the Convention, particularly with respect to: the limits of the scope of application of certain texts that were contrary to Article 2(1); unpaid work by children in family agricultural activities and business enterprises; the age of completion of compulsory schooling; the determination of hazardous work; the regulation of professional training and apprenticeship; the age for admission to hazardous work and its definition; and the participation in artistic performances. Regarding all these points, the Government referred to "work in progress" or "planned for the future". This was not good enough to constitute a case of progress. The Worker members hoped that the promises would be kept and that the legal texts would be promulgated in the near future.

The Employer members recalled that upon ratification of Convention No. 138, Kenya had undertaken to pursue a national policy designed to ensure the effective abolition of child labour and to progressively raise the minimum age for admission to employment to a level consistent with the fullest physical and mental development of young persons. In their view, the main issue was not that Kenya had not designed a national policy, since it had implemented the Employment Act of 1976 and that of 1977 as well as the most recent Law of 2001, but rather, that in its last report, the Committee of Experts had highlighted ten separate areas as opposed to the six highlighted in its 2003 report. This led the Employer members to believe that the situation might have deteriorated and that there was a lack of momentum on the part of the Government to comply with Convention No. 138. The case at hand was serious because it involved a violation of fundamental human rights. At the same time, the absence of sufficient information concerning what was happening on the ground hampered the Committee's work. According to the information recently provided by the Government, child labour affected 1.9 million children between 5 and 17. Only 3.2 per cent of these children attended a secondary school education while 12.7 per cent had no formal schooling at all. The Employer members maintained that although the Kenyan Government had taken steps to improve the situation of children by providing free primary-school education, implementing programmes to feed children at school, reaching children in remote areas and discouraging the practice of female genital mutilation, there was still much to be done and much to be concerned about. Turning to the specific points raised by the Committee of Experts, they requested the Government to provide concrete information on the timetable for the adoption of the amended legislation that extended the application of the minimum age for admission to employment to all sectors of the economy rather than just industrial undertakings, as well as that for the adoption of legislation that protected children engaged in unpaid work. The Government should also submit the text that fixed the age of completion of compulsory schooling at 16, the draft list of hazardous work, which it developed in consultation with the social partners as well as the text of the regulations issued by the Minister concerning the periods of work and establishments where children under 16 years of age could work. Furthermore, the Employer members requested the Government to set a timetable for the adoption of amendments concerning the minimum age for entry into apprenticeship and encouraged the Government to seek technical assistance with a view to amending the legislation on the minimum age for the entry of children into light work, not harmful for their health or development. They did not doubt the Government's will to eradicate child labour but rather its resolve to make the necessary legislative changes to comply with the Convention. Given the time that had elapsed since 2003, they invited the Government to commit itself to making a strong and sustained effort to implement the Convention and to be transparent about the difficulties involved in this undertaking.

The Worker member of Kenya underlined the need for urgent measures to address the issues highlighted by the Committee of Experts and expressed his concern about the timetable for the adoption of the necessary legislative amendments. The questions raised under Article 2(1) of the Convention, namely the limitation of the prohibition to employ children in industrial undertakings and the lack of protection of children engaged in unpaid work, needed to be addressed urgently. On the minimum age for completion of compulsory education, which under the Convention was set at 16 years of age, the speaker indicated that in Kenya compulsory schooling only covered the ages from 6 to 14. He maintained that the labour laws that were drafted in 2004 addressed the question of determining hazardous types of work for children as well as that of admission of children to light work. However, these laws had not yet been enacted by Parliament. The Government had also failed to submit the text of the regulation on periods of working and the establishments where children under 16 could be legally employed. As to the minimum age for entering into an apprenticeship, the Government had not yet taken steps to bring national laws in line with the Convention. The same applied to the question of regulating the conditions under which children could be allowed to participate in artistic performances. Finally, the Government had also failed to provide the Committee of Experts with statistical data on employment of children and inspection reports due to the lack of properly functioning labour inspection services. The speaker acknowledged that the draft bill, which had been prepared with ILO technical assistance and consultation with the social partners, addressed a number of important issues. The problem was that this draft bill had not yet been enacted by Parliament, as a result of which the lives and future of millions of Kenyan children were irreparably damaged. The speaker urged the Committee to be firm with Kenya in demanding a time frame for the enactment of the labour laws that would help address some of the problems the country was facing.

The Government member of Namibia expressed his delegation's appreciation for the information the Government had provided to the Committee. He was happy to note that the legislative amendment process had been carried out with the participation of workers and employers. He wished to recognize that the Government of Kenya had made significant progress in bringing its legislation into line with the provisions of the Convention and encouraged the Government to continue its work.

The Worker member of Senegal stated that the Committee had already in 2003 examined this case of both serious and repeated violations of Convention No. 138 and that the Government had promised to take suitable action in order to eradicate the curse of child labour. The glimmer of hope brought by the ratification of Convention No. 182, being complementary to Convention No. 138, never came true. The situation had not progressed and the requested measures were never taken. The Government repeatedly stated that measures would shortly be taken but the Committee was tired of waiting. This attitude encouraged unscrupulous employers to continue exploiting children, particularly in the agricultural sector, where there were serious risks. The same applied for children engaged in domestic work. The legislation was not in conformity with either the spirit or the letter of the Convention, be it in the unjustifiably narrow scope of application of the legislation, or with respect to the determination of the list of hazardous work, which had still to be communicated. The extent of the points raised by the Committee of Experts showed the failings of the Government that had remained deaf to the appeals of this Committee. The promises of the Government should be firm since a grace period had already been granted, but time was now running out.

The Government member of Nigeria, speaking on behalf of the Africa group, called on member States to carry out their obligations regarding the Conventions they had ratified. The rights of the social partners had to be protected and social justice had to be maintained. The Africa group associated itself with the efforts made by Kenya to comply with the provisions of ratified Conventions. She recalled that the country had requested technical assistance for the review of its labour laws, which had been provided by the ILO, and that the review process had been completed in 2004. The bills which were drafted since took into account the concerns of the Committee of Experts. However, she requested the ILO to favourably consider the request of the Kenyan Government for further technical assistance.

The Worker member of Swaziland concurred with statement of the Worker members. He reminded the Government that ratified Conventions had to be enforced, irrespective of the rhetoric on political will. Since 2001, the Government was promising the Committee to change the legislation, but despite technical assistance from the ILO, the new legislation was still not enacted. The Government should be called upon to have the long promised reviewed legislation promulgated, and to submit a report before the end of this year. Its failure to provide even basic information such as statistics on boys and girls, their ages, geographical distribution and the sectors concerned, showed the lack of commitment on the part of the Government in addressing the issues raised by this Committee, and by the Committee of Experts. Again, the speaker urged the Government to respect fully the commitments arising out of the ratification of ILO Conventions.

The Government member of Zimbabwe said that the ongoing labour law reforms in Kenya which were taking issues of child labour into consideration should be commended. He found it unfair that a country that had shown such commitment to reforming its labour laws with a view to bringing them into line with the obligations of the Convention should be listed at this session. Legislative reform took considerable time and Kenya was positively moving towards these reforms.

The Government representative thanked the speakers for their comments and apologized if her statement had not fully answered all questions. She stressed that the Government could not impose a timetable on the Parliament for examining bills, but indicated that her Government would try to put pressure on the legislature in order to get the amended labour laws enacted. She recalled that the Government that had been elected in 2003 had made the welfare of children a priority and had provided primary education for all. While progress had been made in this case, she stated that her Government was still far from satisfied with the status of children in the country. She pledged that next year Kenya would no longer figure on the list of cases, at least not with regard to the issues at hand.

The Employer members expressed their regret about the fact that, although the legislative review had been completed in 2004, the draft legislation had not since been submitted to Parliament for adoption. The Government had stated that the adoption of the Bill would be subject to the Parliament's own procedures and schedule. This led the Employer members to believe that the reform of the labour laws was not a priority for the Government. It followed from the discussion that the Government was very clear about the importance of the issues discussed. They acknowledged and welcomed the Government's request for technical assistance, emphasizing that good intentions were always welcome. They asserted that it was high time for the Government to demonstrate that their trust had not been mistaken and invited the Committee to consider whether it was satisfied that progress would be made.

The Worker members pointed out that the examined failings in the application were serious. The Government recognized the problems but fell back on promises already made. The Government should therefore take immediate action and adopt the laws and regulations whose promulgation had been announced in order to assure conformity with the Convention. It would also be suitable for the Government to submit a detailed report on the progress achieved on all points raised in order for dialogue to be pursued.

The Committee noted the written and oral information provided by the Government representative and the discussion that ensued. The Committee noted the information contained in the report of the Committee of Experts relating to various issues including the minimum age for admission to employment or work in all sectors, the definition of hazardous work as well as the regulation of light work.

In this regard, the Committee noted the Government's indication that draft laws referred to by the Committee of Experts in its observations were due for submission to Parliament for debate and adoption. It also noted that a Committee had been set up recently by the Government to review the Education Act with a view to modifying, inter alia, the age of completion of compulsory schooling. The Committee further took note of the Government's commitment to implement the Convention through various measures including the adoption of a time-bound programme (TBP) with ILO/IPEC that was ongoing. Finally, the Committee took note of the Government's request for technical assistance.

While noting the Government's indication that it intended to adopt legislation soon dealing with children and child labour to conform to the provisions of Convention No. 138, the Committee recalled that this Convention had been ratified by Kenya more than 25 years ago. The Committee further noted with concern that the review of the draft laws in question, which had been undertaken in consultation with the social partners and with ILO technical assistance, had already been completed in April 2004 but not yet adopted by Parliament. The Committee, therefore, firmly hoped that the necessary provisions would soon be adopted to address all the issues raised by the Committee of Experts, including the extension of the minimum age to all types of work, in addition to industrial work, the determination of the types of hazardous work to be prohibited for children under 18 years of age, and the regulation of light work. Considering that compulsory education was one of the most effective means of combating and preventing child labour, the Committee urged the Government to ensure that legislation addressing the gap between the age of completion of compulsory schooling and the minimum age for admission to employment or work would be adopted shortly. The Committee took note of the Government's request for ILO technical assistance and asked it to avail itself of such assistance with the view to giving effect to the Convention in law and practice as a matter of urgency. The Committee firmly hoped that the Government would provide detailed information, in its next report to the Committee of Experts, on progress made in complying with this fundamental Convention in law and in practice.