Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

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

The Committee takes note of the Government’s report, as well as of the information supplied to the Conference Committee in June 2003, and the detailed discussion which took place thereafter. The Committee requests the Government to provide further information on the following points.

Article 2, paragraph 1, of the Convention. Scope of application. Branches of economic activity covered by the Convention. The Committee had noted that the Government proposed to the task force, which is reviewing the national labour legislation, to extend the provisions on the minimum age for admission to employment or work beyond industrial enterprises to other sectors of the economy. The Committee had recalled that, according to section 25(1) of the Employment Act, the prohibition on employing children (i.e. a person under 16 according to section 2 of the Act) is limited to work performed in industrial undertakings. The Committee notes the Government’s statement that the Employment Act of 1976 (Chapter 226) and the Employment Act (Children) Rules of 1977 are being revised so as to bring the national legislation in line with the requirements of ILO Conventions. The Committee reiterates its hope that the amended legislation will extend the application of the minimum age for admission to employment or work to all sectors of the economy.

Unpaid work. The Committee had noted that section 10(5) of the Children Act, 2001, defines the term "child labour" as any situation where a child provides labour in exchange for payment and that section 2 of the same Act defines "child" as any person under the age of 18 years. The Committee notes the Government’s indication that many children (78 per cent according to the 1998-99 Child Labour Report, published by the Central Bureau of Statistics of the Ministry of Finance and Planning in June 2001) are working for free in family agricultural activities and business enterprises during school holidays and after school. The Committee notes the statement made by the Government representative to the Conference Committee in June 2003, that such work is regarded as part of their upbringing and is considered to be a positive process of growing up, since it did not interfere with the child’s education or moral upbringing. The Government representative acknowledged however that, due to the poverty prevailing in some parts of Kenya, especially in the arid and semi-arid areas, unfortunate situations did occur where children of school age were compelled by their parents or their own economic situation, for example due to HIV/AIDS, to work for their survival. In this connection, he indicated that, in the framework of the ongoing review of the labour legislation, the Government intended to amend section 10(5) of the Children Act, 2001, so as to bring it into line with the provisions of the Convention. The Committee reminds the Government that by virtue of the minimum age specified by it, children under 16 years of age shall not be permitted to work regardless of the type of work performed, and whether it is paid or not, with the exception of light work which can only be carried out under the conditions laid down in Article 7 of the Convention. The Committee once again requests the Government to take the necessary measures to ensure that children working for free in family agricultural activities and business enterprises are entitled to the protection afforded by the Convention, notably by amending the definition of child labour contained in section 10(5) of the Children Act, 2001.

Derogations to the prohibition to employ children. In its previous comments, the Committee had noted that section 3(1) of the Employment (Children) Rules, 1977, allows the employment of children with the prior written permission of an authorized officer, and that the only restrictions are that such employment should not cause the children to reside away from parents without their approval, that permission for work in a bar, hotel, restaurant, etc., needs the consent of the Labour Commissioner and that such a permit should be renewed annually. The Committee had emphasized that such permits are incompatible, not only with the conditions set out in Article 7, paragraph 1, but also with the provisions of Article 2, paragraph 1, of the Convention which are mandatory, as Kenya has not availed itself of any of the flexibility clauses contained in Articles 4 and 5, of the Convention. The Committee had noted that the provisions of section 3(1) of the above Rules undermine the prohibition set out in Article 2, paragraph 1, of the Convention and the provisions of the national legislation establishing the minimum age for admission to employment at 16 years. It was therefore bound to emphasize the fact that no permit should be issued by any person, whether they are parents, guardians or the Labour Commissioner, which have the effect of allowing employment or work: firstly, by persons under 13 years of age, irrespective of the type of work or employment; secondly, for persons between 13 and 15 years of age, unless this is on light work in strict conformity with the conditions set out in Article 7, paragraph 1; and thirdly, for persons of between 16 and 18 years of age on any of the types of employment or work covered by Article 3, paragraph 1, unless this is in strict conformity with the conditions set out in Article 3, paragraph 3. The Committee notes the Government’s statement in its report indicating that the Government has taken careful note of the comments of the Committee of Experts, regarding the issue of permits allowing children of certain ages to work and that the Government is taking the necessary measures to address these concerns. The Committee once again requests the Government to take the necessary measures to ensure that the permits issued under section 3(1) of the Employment (Children) Rules, 1977, are only issued under the conditions outlined above.

Article 2, paragraph 3. Age of completion of compulsory schooling. The Committee had noted that the Ministry of Education was preparing draft legislation to make primary education compulsory. It had also noted that under section 7(2) of the Children Act, 2001, every child shall be entitled to free basic education which shall be compulsory. It had further noted that according to the abovementioned Child Labour Report 1998-99 and the "Child labour policy", primary education is compulsory from 6 to 13 years of age. The Committee notes with interest the information provided by the Government representative to the Conference Committee in 2003 that a truly free and compulsory primary education for all children of school age, with effect from January 2003, was one of the most important developments in the area of protection of children. As a result of the policy on free primary education, for the period between January to May 2003, 1.6 million children who would otherwise have been engaged in child labour are now enrolled in school. The Committee also notes the Government representative’s statement that the age of completion of free and compulsory schooling remains at 16. However, the Committee notes the Government’s statement, in its report, that the draft legislation on compulsory schooling which will address the gap between the age of completion of compulsory schooling (14 years of age) and the minimum age for admission to employment or work (16 years of age), is being prepared. The Committee requests the Government to provide a copy of the text fixing the age of completion of compulsory schooling.

Article 3, paragraph 2. Determination of hazardous work. In its previous comments, the Committee had noted that section 10(1) of the Children Act, 2001, provides that every child shall be protected from economic exploitation and any work that is likely to be hazardous, or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development. The Committee reminds the Government that, by virtue of Article 3, paragraph 2, of the Convention, the types of work or employment considered to be hazardous shall be determined in the national legislation after consultation with the organizations of employers and workers concerned, where such exist. The Government indicates in its report that the social partners will be consulted on the types of work to be prohibited for young persons under 18 years of age during the ongoing review of the national labour legislation by the tripartite task force. The Committee hopes that the list of hazardous work will be adopted rapidly so as to bring the national legislation in line with the Convention.

Article 3, paragraph 3. Admission to hazardous work as from 16 years of age. In its previous comments, the Committee had noted that section 10(4) of the Children Act, 2001, provides that the Minister shall make regulations in respect of periods of work and establishments where children aged at least 16 years may work. The Committee notes the Government’s indication that section 10(4) is included in Part II of the Children Act, 2001, which addresses the protection of children against economic exploitation and any work that is likely to be hazardous. The Committee recalls that the competent authority may authorize, after consultation with the organizations of employers and workers concerned, young persons older than 16 years of age to undertake hazardous work on condition that their health, safety or morals are fully protected and that they receive adequate specific instruction or vocational training in the relevant branch of activity. The Committee therefore requests the Government to indicate whether the regulations referred to in section 10(4) of the Children Act, 2001, have been issued by the competent minister and, if so, to provide a copy. It also requests the Government to indicate the provisions which require that the health, safety and morals of young persons aged 16 to 18 years engaged in these types of work are fully protected and that these young persons have received adequate specific instruction or vocational training in the relevant branch of activity.

Article 6. Apprenticeship. In its previous comments, the Committee had noted that section 25(2) of the Employment Act, 1976, exempts any child employed in an industrial undertaking under a deed of apprenticeship or indentured learnership from the provisions on the minimum age for admission to employment. It had also noted that, by virtue of section 8(3) of the Industrial Training Act (Chapter 237), a minor (i.e. a person under 15 years of age according to section 2 of the Act) may enter into apprenticeship with the authorization of his or her parents or guardian or, in the absence of such authorization, of a district officer or a labour officer. Since no provision in the latter Act sets a minimum age for entry into apprenticeship and no provision in the national legislation determines the age of completion of compulsory schooling, the Committee had noted that authorizations for apprenticeship or training may be granted to children under 14 years of age. The Committee notes the Government’s statement in its report that no provisions set the minimum age for admission to apprenticeship. However, the Government indicates that in practice apprentices have completed primary education. The Government further indicates that the task force, in charge of reviewing the national labour legislation, will address this issue and amend sections 25(2) and 8(3) of the Industrial Training Act (cap. 237) to bring the legislation into conformity with the Convention. The Committee once again recalls in this respect that by virtue of Article 6 of the Convention, only work done within the context of a programme of training or vocational guidance by persons of at least 14 years of age in enterprises is excluded from the scope of this Convention. It therefore hopes that amendments to the Industrial Training Act (cap. 237) will be adopted soon so as to bring the legislation in line with the Convention.

Article 7 , paragraph 1. Admission to light work. In its previous comments, the Committee had noted that under section 3(1) of the Employment (Children) Rules, 1977, children may be permitted to work with the written permission of an authorized officer except in bars, hotels, restaurants or clubs where intoxicating liquors are sold or anywhere as a tourist guide. Employment in such places will be accepted if the Labour Commissioner has consented in writing and the child is in possession of a copy of such consent (section 3(1)). The Committee recalls that, by virtue of Article 7, paragraph 1, of the Convention, children from 13 years of age may be permitted to undertake light work which is not likely to be harmful to their health or development; and not such as to prejudice their attendance at school, or their participation in vocational training programmes. The Committee notes the Government’s indication in its report that it will take the necessary measures on the occasion of the ongoing revision of the labour legislation to bring the relevant laws into conformity with the Convention. The Committee urges the Government to indicate the measures taken or envisaged to ensure that light work may only be performed by children of at least 13 years of age.

Article 7, paragraph 3. Determination of light work. As noted in its previous comments, the Committee reminds the Government that by virtue of Article 7, paragraph 3, of the Convention, the competent authority shall determine the activities in which employment or work may be permitted as part of light work. The competent authority shall also prescribe the number of hours during which, and the conditions in which, such employment or work may be undertaken. The Committee reiterates its hope that the Government will take the necessary measures on the occasion of the revision of the national labour legislation and ensure that its legislation determines light work activities and prescribes the number of hours during which, and the conditions in which, such employment or work may be undertaken by young persons of 13 years of age and above, in conformity with the Convention.

Article 8. Artistic performances. The Committee notes the Government’s statement, in its report that national legislation does not provide for permits to be granted when children participate in cultural artistic performances. The Government further indicates that children take part in extra-curricula school activities and artistic events (such as drama, sports or choirs). However, the Committee observes that section 17 of the Children Act, 2001, provides that a child shall be entitled to leisure, play and participation in cultural and artistic activities. The Committee draws the Government’s attention to Article 8 of the Convention, which lays down that after consultation with the organizations of employers and workers concerned, the competent authority may, by permits granted in individual cases, allow exceptions to the prohibition of employment or work provided for in Article 2 of this Convention, for such purposes as participation in artistic performances. Permits so granted shall limit the number of hours during which, and the conditions in which, such employment or work is allowed. The Committee observes that the Government’s report makes no reference to legislation prescribing a minimum age for artistic performances by children. The Committee recalls that the specified minimum age for admission to employment or work in Kenya is 16 years. The Committee therefore requests the Government to indicate the measures taken or envisaged to ensure that approval for young persons of below 16 years of age to take part in artistic activities is granted in individual cases, and that permits so granted shall prescribe the number and hours during which, and the conditions in which, such employment or work is allowed. The Committee also requests the Government to supply information on the consultations which took place on this subject with the organizations of employers and workers concerned.

Part V of the report form. The Committee had noted the detailed information and statistics provided in the 1998-99 Child Labour Survey, published by the Central Bureau of Statistics of the Ministry of Finance and Planning in June 2001 and in the document entitled; "Child labour policy". It notes with interest that the Government is taking measures to ensure the rehabilitation of street children. The Government indicates that since January 2003, 1,800 street children, mostly aged 16 to 18, have been placed in rehabilitation and vocational training centres. It also notes that the Ministry of Labour and Human Development prepared a report in 2002 entitled: "National Child Labour Policy Towards a Child Labour-free Society". The report aims at identifying the legal statutes that regulate child labour issues and ensuring their effective implementation; analysing the character, nature, size and causes of child labour in order to formulate and implement appropriate programmes of actions; and disseminating information. The Committee notes that the report provides interesting information on the nature of hazardous occupations and major achievements. The Committee asks the Government to continue to provide information on the practical application of the Convention including, for example, statistical data on the employment of children and young persons, extracts from the reports of inspection services and information on the number and nature of contraventions reported.

The Committee notes the Government’s indication that the task force, which is in charge of the revision of the Employment Act 1976 (Chapter 226) and the Employment (Children) Rules 1977, announced that the new legislation would be completed by 2003. The Committee requests the Government to provide information on progress made in enacting or amending the legislation. In this respect, it reminds the Government that it may avail itself of ILO technical assistance to bring its legislation into conformity with the Convention.