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Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) - Kenya (RATIFICATION: 1979)

The Committee notes with regret that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments initially made in 2012.

Repetition

The Committee notes that following the process of law reform undertaken by Kenya a series of new laws have been adopted. The Committee notes in particular the adoption of the Employment Act, 2007, the Labour Institutions Act 2007, the Labour Relations Act, the Work Injuries Benefits Act and the Occupational Safety and Health Act. The Committee notes in this respect, the Government’s indication that migrant workers are covered by these new laws. The Committee further notes the adoption of the Kenya Citizenship and Immigration Act 2011 and the Kenya Citizens and Foreign Nationals Management Service Act 2011. Finally, the Committee notes the Kenya National Commission on Human Rights Act, 2011 and the National Gender and Equality Commission Act 2011. The Committee requests the Government to indicate if migrant workers, and which categories of them, are covered by all of these laws, and to provide information on the manner in which their provisions give effect to the Convention. Noting that the Government’s report contains no substantive information, the Committee requests the Government to provide information on all the aspects covered by the Convention and refers in this respect to the questions set out in the report form of the Convention.

Articles 1 and 9 of the Convention. Basic human rights of all migrant workers and rights arising out of past employment. The Committee requests the Government once again to provide information on any legislative or other measures taken or envisaged to ensure that the fundamental rights of migrant workers in an irregular situation are fully respected and how their rights deriving from previous employment, particularly as regards remuneration and social security, are protected. Please include information disaggregated by sex, nationality and sector of activity on the situation of migrant workers, whether in a regular or irregular situation, subject to abusive conditions of work, as well as information on the measures adopted in relation to the protection of migrant workers’ human rights by the National Commission on Human Rights.

Articles 2–7. Measures to detect and address irregular migration. The Committee notes the adoption of the Counter-Trafficking in Persons Act, 2010 that contains provisions for the prosecution of those responsible for trafficking and the protection of victims of trafficking, including their repatriation, immunity from prosecution, the possibility to remain in Kenya until legal proceedings are concluded and the eligibility to work for the duration of their necessary presence in Kenya. The law also provides that the Minister shall formulate plans for the provision of appropriate services for victims of trafficking. The Committee also notes that the Kenya Citizenship and Immigration Act 2011 considers “prohibited immigrants those persons engaged in trafficking in persons and human smuggling”, as well as those persons whose presence or entry into Kenya is unlawful. The Committee further notes that the Kenya Citizens and Foreign Nationals Management Service Act 2011 provides that the Service will be responsible for the implementation of policies, laws and any other matters related to citizenship and immigration. The Committee requests the Government to provide information on the following:

• (i) the practical implementation of the Counter-Trafficking in Persons Act, 2010 and the Kenya Citizenship and Immigration Act 2011 and their impact on the elimination of irregular migration;
• (ii) the policies and plans drafted by the Kenya Citizens and Foreign Nationals Management Service, or any other national entity, to combat trafficking in persons;
• (iii) any administrative, civil and penal sanctions applied in practice in the event of the unlawful employment of migrant workers, the organization of migration in abusive conditions and assistance provided wittingly to such migration; and
• (iv) how employers’ and workers’ organizations are being consulted with regard to the measures designed and implemented to prevent and eliminate irregular migration and abuse against migrant workers.

Article 8. The Committee notes that section 41(1)(b) of the Kenya Citizenship and Immigration Act 2011 provides that where a permit has been issued to a person and that person ceases to engage in the said employment, occupation, trade, business or profession, the permit shall cease to be valid and the presence of that person in Kenya shall be unlawful. In this regard, the Committee recalls that Article 8(1) of the Convention provides that “On condition that he has resided legally in the territory for the purpose of employment, the migrant worker shall not be regarded as in an illegal or irregular situation by the mere fact of the loss of his employment, which shall not in itself imply the withdrawal of his authorisation of residence or, as the case may be, work permit”. In order to be able to determine to what extent section 41(1)(b) of the Kenya Citizenship and Immigration Act, 2011 is in conformity with Article 8(1) of the Convention, the Committee requests the Government to provide information on the practical application of this section, namely in which cases of termination of employment it is applied.

Articles 10 and 12. National policy on equality of opportunity and treatment. The Committee notes that section 46(6) of the Kenya Citizenship and Immigration Act 2011 provides that learning institutions shall, before admitting a person for purposes of training or instructions ensure that such person is not a foreign national who is unlawfully residing in the country. The Committee draws the Government’s attention to the fact that this type of measures may reinforce stereotypes and prejudices regarding the status of migrant workers and adversely affect measures designed to promote tolerance and mutual respect between the migrant population and nationals. The Committee requests the Government to provide information on the practical application of this provision.

Statistics on migration flows. The Committee notes that the Government refers to the difficulty faced in obtaining statistical information and indicates the readiness of the Government to receive technical assistance in this respect. The Committee hopes that the Government will soon be in a position, with the necessary ILO technical assistance, to provide relevant statistics regarding migration flows to and from Kenya, and asks the Government to continue to report on the progress made in this regard.