Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

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

The Committee notes the Government’s report. It notes the adoption of the newly enacted Employment Act of 2007 which was supplied by the Government along with its report.

Article 2, paragraph 1, of the Convention. Scope of application. 1. Branches of economic activity covered by the Convention. The Committee had previously noted that according to section 25(1) of the Employment Act, the prohibition on employing children (i.e. a person under 16 years of age according to section 2 of the Act) is limited to work performed in industrial undertakings. It had also noted the Government’s information that the Employment Act was being revised and that the draft bill has extended the application of the minimum age for admission to employment to all sectors of the economy. It had requested the Government to provide information on the progress made in adopting the revised Employment Act. The Committee notes with satisfaction that section 56(1) of the Employment Act of 2007 extends the application of the minimum age for admission to employment to all undertakings.

2. Unpaid work. The Committee had previously 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. It had observed that unpaid workers do not benefit from the protection laid down in the Children Act. Noting the Government’s indication that it intended to harmonize all legislation dealing with children and child labour to conform to the provisions of this Convention, the Committee had expressed its hope that the necessary amendments would be adopted soon. The Committee notes with satisfaction that, according to section 56(1) of the Employment Act, except for light work, no person shall employ a child below 16 years of age whether gainfully or otherwise in any undertaking. It also notes the Government’s information that the authoritative legislation on child labour will be the Employment Act of 2007.

Article 2, paragraph 3. Age of completion of compulsory schooling. The Committee had previously noted that, under section 7(2) of the Children Act, every child shall be entitled to free basic education which shall be compulsory. It had also noted that, according to the Child Labour Report 1998–99 and the “Child Labour Policy”, primary education is compulsory from 6 to 13 years of age. The Committee had further noted the Government’s statement that the draft legislation on compulsory schooling which would 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), was being prepared. Noting the Government’s indication that there exists no texts that specifically fixes the age for compulsory schooling, the Committee had requested the Government to indicate whether it is envisaged to adopt legislation which would fix the age of completion of compulsory schooling.

The Committee notes the Government’s information in its report that children in Kenya complete schooling at different ages and that the Government has not envisaged fixing the age of completion of compulsory schooling. In this respect, the Committee refers to the information provided by the Government of Kenya to the Conference Committee on the Application of Standards in June 2006 concerning the application of the Minimum Age Convention, 1973 (No. 138). The Government representative stated that it had appointed a committee to review the Education Act with a view to modifying, inter alia, the age of completion of compulsory schooling. The Conference Committee, while noting the Government’s indication that it intended to adopt legislation dealing with children and child labour to conform to the provisions of Convention No. 138, recalled that this Convention had been ratified by Kenya more than 25 years ago. Considering that compulsory education is one of the most effective means of combating and preventing child labour, the Conference Committee urged the Government to ensure that legislation addressing the gap between the age of completion of compulsory schooling and the minimum age for admission to employment or work would be adopted shortly. The Committee urges the Government, in view of the commitment made by the Government representative to the Conference Committee over two years ago, to take without delay, the necessary measures to fix the age of completion of compulsory schooling at 16 years. It requests the Government to provide information on any developments made in this regard.

Article 3, paragraph 2. Determination of hazardous work. The Committee had previously noted the Government’s indication that it had developed a draft list of types of hazardous work in consultation with social partners and stakeholders. It had requested the Government to provide a copy of the list of types of hazardous work as soon as it was adopted. The Committee notes the Government’s statement that the stakeholders have approved a list of the types of hazardous work which will be presented to the National Labour Board for final approval, before the Minister assents to it as part of legislation. The Committee further notes that, while the Government indicates that it has sent a copy of the list of types of hazardous work along with its report, no such list was in fact sent to the Office. The Committee therefore once again requests the Government to supply a copy of the list of the types of hazardous work as soon as it has been approved by the National Labour Board.

Article 3, paragraph 3. Admission to hazardous work as from 16 years of age. The Committee had previously noted that section 10(4) of the Children Act provides that the Minister shall make regulations in respect of periods of work and establishments where children aged at least 16 years may work, including hazardous work. It had also noted the Government’s indication that the competent Minister had issued regulations referred to in section 10(4) of the Children Act, which is an act of Parliament. The Committee had requested the Government to provide a copy of these regulations. Noting that the Government has not provided a copy of the above regulations, the Committee once again requests the Government to supply a copy of the regulations issued under section 10(4) of the Children Act, along with its next report.

Article 6. Apprenticeship. The Committee had previously 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 Industrial Training Act) may enter into an apprenticeship with the authorization of his/her parents or guardian or, in the absence of such authorization, of a district officer or labour officer. It had also taken note of section 25(2) of the Employment Act, 1976, which exempts a child employed in an industrial undertaking under a deed of apprenticeship from the minimum age for admission to employment. Noting that the national legislation does not contain any provision which fixes a minimum age for apprenticeship, the Committee had hoped that the necessary amendments would be adopted to bring the legislation in conformity with Article 6 of the Convention.

The Committee notes the Government’s indication that the Industrial Training Act is being amended to bring the legislation into conformity with the Convention. The Committee notes that, according to section 58(1) of the Employment Act of 2007, no person shall employ a child of between 13 and 16 years of age, other than one serving under a contract of apprenticeship or indentured learnership in accordance with the provisions of the Industrial Training Act, in an industrial undertaking to attend to machinery. Similarly, section 57 of the Employment Act, which lays down the penalties for breach of the provisions of light work by children, exempts children between the ages of 13 and 16 years who are subject to the provisions of the Industrial Training Act relating to contracts of apprenticeship. The Committee observes that, according to the Employment Act of 2007, children between 13 and 16 years of age are allowed to take part in apprenticeship programmes subject to the provisions of the Industrial Training Act. In this regard, the Committee reminds the Government that Article 6 of the Convention fixes a minimum age of 14 years for work done in undertakings, where such work is carried out in accordance with conditions prescribed by the competent authority, after consultation with the organizations of employers and workers concerned, where such exist, and is an integral part of: (a) a course of education or training for which a school or training institution is primarily responsible; (b) a programme of training, mainly or entirely, in an undertaking, which programme has been approved by the competent authority; or (c) a programme of guidance or orientation designed to facilitate the choice of an occupation. The Committee requests the Government to take the necessary measures to ensure that the amendments to the Industrial Training Act will be in conformity with Article 6 of the Convention. It asks the Government to provide information on any developments in this regard in its next report.

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 as a tourist guide. Recalling that Article 7, paragraph 1, of the Convention permits only children from 13 years to undertake light work, the Committee urged the Government to indicate the measures taken to ensure that light work may only be performed by children of 13 years of age. The Committee notes with satisfaction that, according to section 56(2) of the Employment Act of 2007, a child between the ages of 13 and 16 years may be employed to perform light work which is not likely to be harmful to the child’s health or development; and not such as to prejudice the child’s attendance at school, or his/her participation in vocational orientation or training programmes.

Article 7, paragraph 3. Determination of light work. The Committee had previously requested the Government to indicate the measures taken or envisaged to determine light work activities and to prescribe 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. The Committee notes that, according to section 56(3) of the Employment Act, the Minister may make rules prescribing light work in which a child of 13 years may be employed and the terms and conditions of that employment. The Committee notes the Government’s information that the regulations governing light work are yet to be developed. The Committee requests the Government to take the necessary measures to determine the light work activities that may be undertaken by children of 13 years of age and to prescribe the number of hours during which, and the conditions in which, such work may be undertaken.

Article 8. Artistic performances. The Committee had previously noted section 17 of the Children Act, which provides that a child shall be entitled to leisure, play and participation in cultural and artistic activities. It had noted that the national legislation does not provide for permits to be granted to children participating in cultural artistic performances. Noting the Government’s indication that this matter would be addressed during the revision of the Children Act, the Committee had asked the Government to provide information on the progress made in this respect. The Committee notes the Government’s information that no consultations with the social partners with regard to the granting of individual permits for artistic performances have been so far undertaken. It further notes the Government’s indication that this matter will be addressed in the subsidiary legislation yet to be undertaken. The Committee expresses the firm hope that in its next report the Government will provide information on the progress made in the revision of national legislation in order to ensure that approval for young persons below 16 years of age to take part in artistic performances is granted in individual cases. It also reminds the Government that the permits so granted must prescribe the number of hours during which, and the conditions in which, such employment or work shall be permitted.

Article 1 and Part V of the report form. National policy and application of the Convention in practice. The Committee notes the Government’s statement that it will endeavour to provide information on the practical application of the Convention, including statistical data on employment of children and inspection reports. The Committee notes that, according to the Kenya Integrated Household Budget Survey, 2005, a total number of 951,273 children were recorded as working, indicating a reduction compared to the 1.9 million working children between the ages of 5 to 17 years recorded in the 1998/99 Child Labour Report (National Plan of Action on the Elimination of Child Labour in Kenya, 2004–15, page 3, hereinafter National Plan of Action). This survey does not include children on the streets which are estimated to be over 700,000 in 2007, according to the UNICEF Review of Progress towards the World Fit for Children Plus 5 goals in Kenya. According to the report on the National Plan of Action, in Kenya, child labour is found in all sectors, especially in commercial and subsistence agriculture, domestic work and other sectors such as child prostitution and pornography, drug trafficking, hawking and herding. The Committee also notes that the National Plan of Action identified a number of factors which contribute to child labour, such as poverty, the HIV/AIDS pandemic, insecurity and conflicts, cultural practices which enhance child labour, weak institutions leading to challenges in enforcing legislations and implementation of policies, etc. The Committee notes that the Government signed a Memorandum of Understanding with ILO–IPEC in 1992, introducing a country programme on the elimination of child labour. It also notes that the Government developed a Time-bound Programme (TBP) in 2004 targeting the immediate elimination of the worst forms of child labour, and a National Policy on Child Labour in 2006. The Committee further notes that, within the context of the ILO–IPEC project “Building the Foundations for Eliminating the Worst Forms of Child Labour in Anglophone Africa” (Technical Progress Report, September 2005), a total of 453 children (216 girls and 237 boys) were withdrawn from the worst forms of child labour and supported to undergo skills training. According to the ILO–IPEC Technical Progress Report on sub-regional programme on Prevention, Withdrawal and Rehabilitation of Children Engaged in Hazardous Work in Commercial Agriculture in Eastern Africa (COMAGRI), 2004, a total of 2,363 children (1,069 girls and 1,294 boys) have been withdrawn from hazardous labour and placed in primary schools, as well as in vocational training facilities. While noting the efforts made by the Government to combat child labour, the Committee expresses serious concern at the situation of children under 16 years of age who are compelled to work in the country. The Committee, therefore, strongly encourages the Government to step up its efforts to progressively improve the situation of children under the age of 16 years who are compelled to work in Kenya. It also requests the Government to provide information on the National Policy on Child Labour and on the implementation of the National Plan of Action on Elimination of Child Labour and on the results achieved in terms of the progressive elimination of child labour. Furthermore, the Committee once again requests the Government to provide detailed information on the manner in which the Convention is applied in practice, as required under Part V of the report form, for instance, extracts from official reports, statistics and information on inspection visits made and contraventions reported.