Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Migration for Employment Convention (Revised), 1949 (No. 97) - Kenya (Ratification: 1965)

Article 1 of the Convention. Information on national policies, laws and regulations. The Committee notes the adoption of the Employment Act, 2007, which provides that migrant workers shall enjoy equal treatment in employment and occupation, and the Labour Institutions Act, 2007, which establishes a National Labour Board that has functions related to the issuance of immigration entry permits and work permits and provides for the establishment of a Work Permits Committee. The Committee also notes the adoption of the Kenya Citizenship and Immigration Act, 2011, which contains provisions on prohibited immigrants and inadmissible persons, entry and removal of immigrants and issuance of permits. It also notes the Kenya Citizens and Foreign Nationals Management Service Act No. 31 of 2011 providing that the Service will be responsible for the implementation of policies, laws and any other matters related to citizenship and immigration. The Committee further notes that the Government refers to the Draft Diaspora Policy and the Employment Policy and indicates that, according to the Draft Diaspora Policy, the number of Kenyans in the Diaspora is estimated at 3 million, which represents inward remittances of US$1.9 billion, accounting for 5.4 per cent of gross domestic product. The objective of the Diaspora Policy is to mainstream the Kenyan Diaspora in the development agenda so that it makes a significant contribution to the development of the country. The External Remittances and Foreign Employment Committee will help in this process. The Government further indicates that the coordination of Diaspora-related issues is under the realm of the Ministry of Foreign Affairs. It will also oversee the formation of the National Diaspora Council of Kenya (NADICOK) which will be constituted by several governmental institutions and responsible for monitoring, evaluating and developing the National Plan of Action. The Committee also notes that the Draft Employment Policy Strategy seeks to ensure greater coordination among all the public entities that deal with migration issues and to harmonize and place all foreign employment functions under the National Employment Authority. The Committee requests the Government to provide detailed information on the practical application of all the laws mentioned above and the functioning of the governmental entities described, namely the National Labour Board, the Work Permits Committee and especially the Kenya Citizens and Foreign Nationals Management Service and the policies and measures implemented by it.

Article 2. Services and assistance to migrant workers. According to the Diaspora Policy, a large number of Kenyan migrant workers lack the necessary work permits and documentation. To address this situation, the Government will strengthen and enhance the capacity of consulates so as to provide comprehensive and effective services to all Kenyans living abroad, and will initiate dialogue with destination countries to ensure protection of Kenyans. The Government indicates that the Diaspora Desk established in the Ministry of Foreign Affairs has the mandate of providing information on employment opportunities existing in foreign countries and initiating bilateral arrangements with countries of destination. Moreover, a full set of institutions, namely the Ministry of Labour, Ministry of Youth Affairs, Ministry of Foreign Affairs, Private Employment Agencies and the Kenya Association of Private Employment Agencies, provide Kenyan migrant workers with information. The Committee further notes that the Government has renewed its commitment to work with the International Organization for Migration (IOM) in providing pre-departure orientation for migrant workers from Kenya. The IOM has already provided this kind of training to more than 2,700 unskilled and semi-skilled migrant workers destined for the Middle East, United Arab Emirates, Afghanistan and the Gulf States, since 2008. With respect to the Employment Policy, the Committee notes that one of its strategies consists in providing orientation on foreign employment and re-entry programmes. Furthermore, the Government is considering the possibility of entering into bilateral agreements with countries of destination to explore the possibility of transferring social security contributions from Kenyans to Kenya on completion of their contracts. As regards foreign workers who wish to work in Kenya, the Government indicates that they are provided with information concerning visa requirements, job opportunities, terms and conditions of employment and rights and obligations. The Committee requests the Government to indicate whether access to the services for migrant workers enumerated is free of charge and how it is ensured that they provide migrant workers with sufficient, accurate and accessible information.

Article 3. Misleading propaganda. The Committee notes that the Labour Institutions Act, 2007, has introduced provisions in Part VII to regulate employment agencies; these include requirements for registration, obligations for directors, competencies for employment officers, appeals and offences. The Government indicates that it supports private employment agencies, with which it meets regularly to deal with different issues including policy and legislation, recruitment and placement as well as pre-departure orientations. The Government further indicates that the Kenya Association of Private Employment Agencies has developed a constitution and a code of conduct to guide its members. The Committee requests the Government to provide a copy of the code of conduct adopted by the Kenya Association of Private Employment Agencies. The Committee also requests the Government to provide any additional information regarding the measures adopted or envisaged to protect migrant workers against any abuse and the existing penalties for offences, particularly with regard to the dissemination of misleading propaganda. While noting the provisions designed to address trafficking in persons in the Kenya Citizenship and Immigration Act, 2011, the Committee requests the Government to provide further information on any policies and legislation adopted related to trafficking in persons that protect both immigrant and emigrant workers against abuse resulting from false information on the migration process.

Article 5. Medical services. The Committee notes that according to section 48(1)(d) an immigration officer shall have the power to require any person seeking to enter Kenya to submit to examination by a medical practitioner. Section 33(2)(a) provides that a person who refuses to submit to such examination will be considered as an inadmissible person. The Committee requests the Government to specify under which conditions a medical examination can be required and which kind of medical exams could be requested.

Article 6. Equality of treatment. The Committee notes that section 5 of the Employment Act, 2007, provides for equality of opportunity for migrant workers and members of their family lawfully in Kenya. It also provides for equal remuneration for work of equal value. The Committee requests the Government to provide information on the practical application of the Employment Act, 2007, with respect to the items listed in Article 6(1)(a)–(d). The Committee also requests the Government to indicate if the Employment Policy has become fully operational and to give details on the practical measures taken to implement its component on equality of opportunity and treatment for migrant workers.

Article 8. Maintenance of residence in the case of incapacity for work. The Committee notes the Government’s indication that migrant workers admitted on a permanent basis have the right of residence in the event of unfitness for employment. Taking into account that the Government further indicates that such workers may apply for the relevant categories of entry permits under the Immigration Act, 2011, the Committee requests the Government to confirm that the right of migrant workers admitted on a permanent basis will be maintained in the event of incapacity for work.

Parts III–V of the report form. In its previous comments, the Committee requested the Government to provide statistical information on the results of labour inspections, as well as available information disaggregated by sex, country of origin and sector of activity on the number of migrant workers. The Committee notes that the Government indicates that no such information is available and requests ILO technical assistance in this respect. The Committee requests the Government to provide information on the work of the labour inspectorate related to migrant workers and hopes that the technical assistance required by the Government will be provided soon.