Demande directe (CEACR) - adoptée 2024, publiée 113ème session CIT (2025)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Kenya (Ratification: 2001)

Articles 1 and 2 of the Convention. Legislation. Scope of application. In reply to the Committee’s previous comment, the Government indicates in its report that: (1) the armed and police forces, the prisons service, and the National Youth Service (NYS) have developed their own internal policies and codes of conduct that emphasize non-discrimination and equal treatment, and other relevant legislative texts have been revised with the same objective; (2) training and awareness-raising programmes are conducted for workers in these sectors; (3) grievances reporting mechanisms have been put in place to allow these workers to report incidents of discrimination in a confidential manner; and (4) stakeholder engagement is encouraged, to gather feedback and improve anti-discrimination measures. The Government also indicates that significant efforts have been made to facilitate the activities of the National Gender and Equality Commission (NGEC) which: (1) actively advocates for gender equality and the protection of workers against discrimination in the armed and police forces, the prisons service, and the NYS through public campaigns, workshops, and seminars; (2) monitors compliance with gender equality laws and policies within these sectors, conducting regular audits and assessments to identify and address any gaps in implementation; (3) reviews existing policies and practices within these sectors and makes recommendations for reform; and (4) undertakes research and data collection on gender disparities and discrimination with a view to informing policy decisions and tracking progress in achieving gender equality. The Government adds that: (1) significant efforts have been made to implement the Gender Policy of the Ministry of Defence; (2) regular training and programmes are conducted for all defence personnel to raise awareness about gender issues (equal opportunities, gender-sensitive recruitment, and career advancement for all) and foster a more inclusive workplace culture; (3) efforts are being made to integrate gender perspectives into all aspects of military operations and administration; and (4) support systems have been established to provide assistance to personnel facing gender-related challenges. The Committee notes this information with interest. However, it wishes to recall that, in addition to sex, the Convention protects against discrimination in employment and occupation on the basis of race, colour, religion, political opinion, national extraction and social origin. The Committee thus asks the Government to indicate how workers excluded from the scope of application of the Employment Act, 2007, are protected against discrimination on the other grounds enumerated in Article 1, paragraph 1 (a), of the Convention.

Article 2. Equality of opportunity and treatment of men and women. Statistics. The Committee notes that, according to the statistical data communicated by the Government, in 2020: (1) 75 per cent of men and 62 per cent of women participated in the labour market; (2) 40 per cent of women occupied a managerial position; (3) the distribution of women and men between the various economic sectors under review (agriculture, manufacturing, wholesale, the financial sector and the informal sector) was balanced; and (4) 55 per cent of employed women attained the secondary level of education (against 50 per cent of employed men) and 65 per cent of employed women attained the tertiary level (against 70 per cent of employed men). The Committee also notes, from the Decent Work Country Programme (DWCP) for Kenya covering the 2021–2024 period, that by 2024, the proportion of girls who are not in education, employment or training should be reduced from 18 to 12 per cent, and the proportion of women in formal employment sectors that require a high level of education and specialized skills should be increased to 45 per cent in the financial and insurance sector; 42 per cent in the information and communication sector; 35 per cent in professional, scientific and technical activities; 30 per cent in real estate; and 15 per cent in administration and support services. The DWCP also indicates that by 2024, the proportion of women working in the agricultural sector should be increased to 50 per cent, 15 per cent in small industries and 30 per cent in services, and that their proportion in sectors highlighting their traditional roles in society should be reduced so that they represent 50 per cent of workers employed in human health and social work activities, as well as domestic work services. The Committee welcomes the ambitious objectives of the DWCP. It however notes that increased female labour force participation alone may not advance gender equality if occupational gender segregation leads women into lower-wage occupations. The Committee further notes that article 27(8) of the Kenyan Constitution states that not more than two thirds of the members of elective and appointive bodies can be of the same gender and that, according to the NGEC website, currently women represent only 23.49 per cent of the members of the National Assembly and 31.30 per cent of the Senate. Lastly, the Committee observes that the 2024 Global Gender Gap Report (World Economic Forum) indicates that 31.82 per cent of ministerial positions are occupied by a woman, 13.20 per cent of firms are owned by a majority of women, and 18.10 per cent of firms have a woman as the top manager. The Committee asks the Government to continue to provide: (i) information on the labour market participation rate of men and women, their distribution by sector of activity and occupation, in both the public and private sectors, as well as their representation in top management positions; and (ii) follow-up information as regards the above-mentioned objectives of the DWCP for 2024. Please report on the measures taken to comply with the minimum proportion of women in ministries and Parliament required by the Constitution.

National policies on gender equality. The Government indicates that the implementation of the 2019–2024 Strategic Plan of the NGEC has led to notable progress in the gathering of comprehensive data, improved capability, legislative reforms, and public awareness on gender equality issues. The Government also indicates that the 2018–2022 Strategic Plan of the Ministry of Public Service, Youth and Gender Affairs was successful in terms of women's economic involvement and educational attainment, and that it has also successfully integrated gender issues into important government policies and initiatives. The Government further indicates that under the 2019 National Policy on Gender and Development, gender policy frameworks have been implemented in several sectors; creative programmes for gender equality resulted from fruitful public-private collaborations with the commercial sector and civil society organizations; and more financing was obtained for gender-related projects. The Committee notes the information contained in the observations of the Central Organization of Trade Unions of Kenya (COTU-K), according to which: (1) most entry-levels workers in Kenya are female while the great majority of board and senior management members are male; (2) expectant women are denied opportunities in some private businesses; and (3) public sector health care workers do not enjoy paid maternity leave while on an internship. In that regard, the Committee wishes to emphasize that discrimination based on maternity, including pregnancy and breastfeeding, are the most evident forms of discrimination based on sex as they can only, by definition, affect women. They persist as a common experience for many women, in which they are either not recruited, dismissed, moved into lower-paid roles, denied advancement opportunities or become subject to subtly hostile behaviours. Therefore, measures prohibiting discrimination stemming from the maternal function of women and the gender division of domestic labour are of crucial importance in ensuring equality of opportunity and treatment for women (see General Survey of 2023 “Achieving Gender Equality at Work”, paragraphs 78-82). The Committee asks the Government to provideits comments in this respect.

Women’s self-employment, access to land, credit and other material goods and services. In response to the Committee’s previous request on the steps taken to promote women’s self-employment, and their access to land, credit and other material goods and services needed to perform an occupation, the Government indicates that to date 35 per cent of women are self-employed. In that regard, the Government also indicates that the Women's Enterprise Fund (WEF): (1) has disbursed 16 billion Kenyan shillings between 2019 and 2024 in loans for women entrepreneurs nationwide; (2) offers ongoing mentorship and business development services to loan recipients; and (3) has provided financial literacy, business management and entrepreneurship skills training to around 10,000 women, which resulted in a significant increase in women-owned businesses and employment creation, particularly in local communities. The Government further adds that: (1) the implementation of the National Government Affirmative Action Fund (NGAAF) resulted in a notable increase in the number of women employed in various sectors; (2) businesses which participated in the “Access to Government Procurement Opportunities” (AGPO) programme have reported a positive impact in terms of revenues and market access; (3) businesses which benefited from the Uwezo Fund reported a positive impact in terms of business expansion; (4) the implementation of the 2019 National Policy on Gender and Development resulted in the harmonization of land laws to secure women’s land rights, increased participation of women in agriculture, payment of allocations for women’s agricultural activities and provision of training resources to women farmers; and (5) the 2019–2024 Strategic Plan of the NGEC resulted in better access to resources and economic opportunities for women, and a more equitable distribution of resources. The Committee takes note of this information.

Addressing gender stereotypes. The Government indicates that various measures have been taken to combat gender stereotypes in education, the workplace, and other fields by: (1) increasing women's access to media content and positions of decision-making inside the industry (through affirmative action laws, mentorship programmes, training and capacity-building initiatives or the removal of media that reinforces negative gender stereotypes) and adopting a regulatory framework that filters hazardous content and ensures that media content creators stick to the applicable rules and criteria; (2) incorporating gender equality themes into the national school curriculum (which resulted in increased awareness and understanding among students, behavioural change, and community support for gender equality initiatives); (3) formulating programmes involving gender-sensitive training for employees and employers in various sectors (resulting in inclusive work environments where gender equality is prioritized); and (4) promoting the adoption of employment policies that ensure non-discriminatory hiring and promotion practices in both public and private sectors. Finally, the Government indicates that workplace audits are conducted to identify and address cases of gender bias and stereotypes and that such policies resulted in the reduction of bias in workplace practices and culture and the increase in the number of women in various roles and levels of management. The Committee requests the Government to provide examples of measures taken following up the findings of the workplace audits, and information on the impact of these measures on reducing gender bias or stereotypes in the workplaces concerned.

Equality of opportunity and treatment of ethnic minority groups and indigenous people. The Committee notes the Government’s indication that the NGEC's Status Report on Equality and Inclusion found significant disparities in access to resources, education, and employment among various ethnic and gender groups, and that policy recommendations and awareness campaigns have therefore been launched to address these disparities, leading to policy changes and increased awareness. In this respect, the Government indicates that the NGEC and the National Land Commission have been involved in activities related to indigenous people, such as advocacy, awareness-raising, monitoring, reporting, and providing support services to indigenous communities facing discrimination or rights violations. The Government specifies that the National Land Commission has also developed and implemented policies aimed at securing land tenure for indigenous communities and assisted them in managing natural resources sustainably. In this respect, the Government adds that: (1) the decisions of the African Court on Human and Peoples’ Rights on the situation of the Endorois and Ogiek peoples have been implemented, with measures to restore land and resource rights; (2) legal support has been provided and community engagement has been conducted to ensure the enforcement of these rights; (3) land restitution has been achieved, allowing the Endorois and Ogiek peoples to resume traditional livelihoods. The Government further indicates that the Kenya National Commission on Human Rights (KNCHR) has also been working to ensure the rights and livelihoods of indigenous peoples in Kenya through policy development, resource allocation, capacity-building, and restoration of rights, and that these measures have led to sustainable livelihoods, cultural preservation, and improved economic stability among indigenous communities. The Government specifies that the KNCHR has also: (1) facilitated the restoration of rights for the Endorois people and other indigenous communities; (2) conducted human rights education programmes targeting both indigenous communities and the broader public; and (3) promoted inclusive workplace policies and practices. Lastly, the Government indicates that training programmes focusing on diversity and inclusion in the workplace have also contributed to increased inclusion and improved conditions for indigenous workers. The Committee requests the Government: (i) to assess the situation of minority groups and indigenous peoples in education, employment and occupation, and to provide any available information, including statistical data, in that regard; and (ii) to pursue its efforts, in collaboration with indigenous peoples and other relevant stakeholders, to ensure that indigenous peoples have access to land and resources to allow them to engage in their traditional occupations and access employment without discrimination.

Persons with disabilities. The Government indicates that: (1) scholarship programmes (2,000 scholarships per year) have been launched to assist students with disabilities in enrolling in higher education and developing their skills; (2) financial support schemes, mentorship networks, and entrepreneurial training programmes have offered opportunities for self-employment and entrepreneurship; and (3) as a result of these initiatives, persons with disabilities have started over 1,500 new enterprises. The Government adds that, as a result of the adoption of regulations requiring employers to provide reasonable accommodations and training on best practices for developing inclusive workplaces, participating companies have seen a 20 per cent rise in the employment rate of people with disabilities. The Government also indicates that several initiatives to support the employment and occupation of persons with disabilities have been put in place, such as the establishment in 2019 of an Employment Portal which offers resources for career development and has helped over 5,000 people with disabilities to find an employment. The Government further indicates that public awareness programmes have been organized all around the country to increase public understanding of the rights and potential of persons with disabilities, and that disability advocacy groups struggle to advance inclusive laws and procedures. However the Committee notes that, according to the National Council for Persons with Disabilities (NCPWD), in 2022–23, a mere 4 per cent of public institutions met the 5 per cent reservation of employment for persons with disabilities that is required by both the 2010 Constitution and the Persons with Disabilities Act No. 14 of 2003, and that only 35 per cent of institutions were employing persons with disabilities by 1 July 2022, meaning that only 1.32 per cent of the total workforce in these institutions were persons with disabilities. The Committee also notes that in January 2024, the NCPWD issued a report entitled Disability Landscape in Kenya: A Comprehensive Landscape Analysis of Disability at the County and National Levels in Kenya for Informed Policy and Full Societal Inclusion which confirms that Kenya has made progress towards a society that is more inclusive of persons with disabilities, but that critical gaps persist in education, accessibility, or public transportation. The NCPWD recommended to: (1) strengthen data collection and analysis on persons with disabilities; (2) empower them to effectively participate in socio-economic development; (3) promote disability inclusion in all sectors of society; and (4) strengthen institutional capacity through the development of capacity-building and training manuals related to disability inclusion and mainstreaming in various sectors, for instance. The Committee also notes that the NCPWD Strategic Plan 2023–2027 aims at promoting inclusive education for persons with disabilities at all levels and increasing employment rates and opportunities for them. In this respect, the Committee welcomes the development of the Persons with Disabilities Bill, 2023; the Kenya Sign Language Bill, 2023; and the Learners with Disabilities Bill, 2023; as well as the draft National Policy on Persons with Disabilities, mentioned in the Disability Landscape Analysis report. The Committee asks the Government to provide: (i) information on the finalization of the Persons with Disabilities Bill, the Kenya Sign Language Bill, the Learners with Disabilities Bill, and the National Policy on Persons with Disabilities; (ii) the number of persons with disabilities benefiting from the scholarship programmes; and (iii) statistical data on the labour market participation rate of persons with disabilities, disaggregated by sector of activity and occupation, in both the public and private sectors.

Article 4. Measures affecting persons justifiably suspected of, or engaged in, activities prejudicial to the security of the State. The Committee recalls that under section 5(4)(d) of the Employment Act, 2007, it is not discrimination to “restrict access to limited categories of employment where it is necessary in the interest of State security”. In order to assess the scope of the restriction on access to employment pursuant to section 5(4)(d) of the Employment Act, the Committee has been asking the Government to specify the “limited categories of employment” to which this section applies and how it is ensured that the requirement of a “good conduct” certificate does not unduly limit the protection against discrimination under the Convention. The Government indicates that: (1) the "good conduct" certificate is issued by the Directorate of Criminal Investigations and serves as a background check for individuals with a criminal record; (2) employers often require this certificate to ensure the suitability of the job applicants concerned and maintain a safe and secure work environment, particularly for positions of trust and responsibility; and (3) if delivered, the certificate is valid for one year from the date of issue. The Government specifies that the certificate must not lead to indirect discrimination against individuals from disadvantaged backgrounds who may have minor or irrelevant past infractions. In this respect, the Committee recalls that Article 4 of the Convention should be interpreted strictly, that all measures of state security should be sufficiently well-defined and precise, and that the persons affected by the measures, namely the issuance of the certificate, must have the right to appeal to an independent body. The Committee asks the Government to indicate whether individuals who are required to produce a “good conduct” certificate have the right to appeal to an independent body.

Enforcement. The Committee notes the Government’s indication that the NGEC receives complaints related to discrimination, conducts investigations and collaborates with other government bodies and civil society organizations to enhance the effectiveness of interventions. However, the Committee notes with regret that the Government does not indicate the number and nature of complaints received by the NGEC or the labour inspectorate (particularly in Export Processing Zones), nor the number of discrimination cases that have been brought before the courts, including the Industrial Court and other relevant judicial bodies. The Committee therefore firmly hopes that the Government will provide information on the number of cases related to the implementation of the Convention, processed by the labour inspectorate, the NGEC or the courts, including information on the nature of the alleged discrimination and the outcome of these cases.