Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

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

The Committee notes the information supplied by the Government in its report. It notes in particular that the Employment Act (chapter 226) and the Employment (Children) Rules of 1977 will be revised in the framework of a general revision of labour legislation which will start in the near future with the assistance of the ILO and in consultation with the social partners. The Committee also notes that a Bill on children has been submitted to Parliament and is currently under examination. It requests the Government to supply information on the progress made in relation to draft general revision of the labour legislation as well as information on the work of Parliament in relation to the Bill on children.

The Committee requests the Government to supply further information on the following points.

Article 2 of the Convention.  In its previous comments, the Committee has noted that a task force, appointed to review labour legal instruments, had decided to amend section 2 of the Employment Act so as to define a "child" as a person under 15 instead of 16 years of age, which would have the result of lowering the minimum age for employment or work under the Employment Act to 15 years. The Committee once again recalls that the Government specified 16 years as the minimum age for admission to employment or work under Article 2, paragraph 1,of the Convention at the time of ratification. If the Government amends the Employment Act as indicated, the above section would no longer be in conformity with the provisions of the Convention. Indeed, by virtue of Article 2, paragraph 1, member States, by ratifying the Convention, undertake the obligation to take the necessary measures in order to ensure that no person under the age specified is admitted to employment or work in any occupation. In addition, the Committee emphasizes that, in conformity with Article 1, member States undertake, when ratifying the Convention, the obligation to raise progressively the minimum age for admission to employment or work and not to reduce this age. The Committee therefore once again requests the Government to take the necessary measures in order to maintain the legislative conformity with the Convention.

For many years, the Committee has been noting that, under the terms of section 25(1) of the Employment Act, read in conjunction with section 2 of the Act, the minimum age for admission to employment or work only applies to industrial enterprises. In its previous reports, the Government had indicated that it intended to amend the Act. To this effect, the Committee noted in its previous comments that the draft amendment to the Employment Act did not contain any provision to extend the application of the minimum age for admission to employment or work to all sectors of the economy. Moreover, it noted that a task force appointed to review the labour legal instruments was continuing its work. Consequently, the Committee once again hopes that this special group will take the necessary measures to extend the application of the minimum age for admission to employment or work to all sectors of the economy. It once again asks the Government to supply information on any progress made in this respect.

The Committee noted previously that the Ministry of Education was preparing draft legislation to make primary education compulsory. The Committee again expresses the hope that the Government will provide information on any developments in this respect.

Article 3.  In its previous comments, the Committee noted that the national tripartite committee which is in charge of giving advice on the execution of the policy was in the process of constitution and that it would consult the organizations of employers and workers, as well as determine the types of work to be prohibited for minors less than 18 years because of the harmfulness to their health, their security or their morals. Therefore, the Committee again expresses its hope that this committee will take the necessary measures to ensure the respect for the principles of the Convention in the near future. It also asks the Government to supply information on any progress made in this regard.

Article 7.  The Committee previously noted the Government’s statement that it did not consider it time yet to pass legislation on the employment of children under 15 on light work. It recalls, however, that section 3 of the Employment (Children) Rules of 1977 already allows the employment of children with a prior written permission of an authorized officer. The only restrictions are that such employment should not cause the child to reside away from parents without approval, that permission for work in a bar, hotel, restaurant, etc., needs the consent of the Labour Commissioner, and that such permits should be annually renewed. The Committee again points out that this section of the Rules is not in conformity with the Convention in several aspects: firstly, whilst the Convention allows, under Article 7, paragraph 1, the admission to light work of persons only from 13 years of age, the above Rules do not limit the age of the children that may be employed; secondly, Article 7, paragraphs 1 and 3, permits the employment of children under the general minimum age only in regard to light work (that is, work which is not likely to be harmful to their health or development and not such as to jeopardize their school attendance or their capacity to benefit from the instruction received), which should be determined by the competent authority. The above Rules do not even limit such employment of under-age children to light work, but only provide for the abovementioned conditions; and thirdly, also under Article 7, paragraph 3, of the Convention, the competent authority should prescribe the number of hours and the conditions of such employment or work. The Committee hopes that the Government will take the necessary measures, during the national social legislation review, in order to bring the legislation into conformity with the Convention.

The Committee hopes that the amendment to the Employment Act and the Employment (Children) Rules of 1977 will bring national legislation into conformity with the Convention on the aforementioned points.

Article 1 of the Convention in conjunction with Part V of the report form.  With reference to its previous comments, the Committee notes the information provided by the Government according to which it obtained funding from an International Programme on the Elimination of Child Labour (IPEC) in June 2000 which will make it possible to finalize the Government’s draft child labour policy. In this respect, the Government indicated that the final version of this draft child labour policy will be transmitted to the Office as soon as it is adopted. The Committee also notes that a national study on child labour is presently at its final preparatory stage and that it will be provided to the Office as soon as possible. The Committee, therefore, hopes to receive in the near future a copy of the final version of the draft child labour policy as well as a copy of the above national study.

The Committee also notes the documents attached to the Government’s report and, in particular, the draft child labour policy and the report on the implementation of the national action plan envisaged in the context of the IPEC programme.

With regard to the national action plan under the IPEC programme, the Committee notes that the Minister of Education has created, in cooperation with UNICEF, several programmes intended to improve the education system. The objectives of these programmes were to make primary education compulsory and free of charge to everyone and to allow the reintegration into the education system of the children already working. The Committee notes with interest that in total 1,376 children received a professional training and that 3,475 children have been reintegrated in the education system. Noting the efforts accomplished by the Government, the Committee is bound to express its concern at the statistics contained in the draft child labour policy. Indeed, according to the Government’s estimates, about 3.5 million children between 6 and 14 years of age do not attend school and work in different sectors of the economy. In addition, according to the UNICEF estimates, 850,000 children are working in the streets. The Committee hopes that the Government will take the necessary measures as soon as possible to resolve this grave problem and will provide information concerning the measures taken.

According to the information contained in the national action plan, the Committee notes that a child labour unit has been established in the Ministry of Employment, Development and Manpower in order to take child labour issues into account in Government policies and programmes. The Committee asks the Government to provide information concerning the functioning of the above unit.

The Committee notes that in the framework of IPEC, the national action plan reforms of the inspection system have taken place to improve controls over child labour. Thus, 8,074 children have been found working in commercial services, the agricultural sector, domestic works, construction and building, and forestry. A reduction in the number of children working in coffee plantations has been noted. The Committee notes that, by virtue of the above plan, studies have been made by the Health Director and by the security services of 605 enterprises in order to identify the children working in dangerous occupations; out of the 4,294 children identified, 2,013 children have been removed from such activities. The Committee requests the Government to continue to provide information on this subject.

The Committee further notes the efforts made by the Government for the collection of data on child labour. It also notes that an inquiry is currently being carried out on child labour in the whole country by the Central office of Statistics. The Committee requests the Government to transmit to the Office the results of the inquiry carried out by the Central Office of Statistics.