Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Kenya (Ratification: 2001)

Legislation. Scope of application. The Committee notes that the Employment Act 2007 excludes from its application the armed forces or the reserve, the Kenya police, the Kenya prisons service or the administration police force, and the national youth service (section 3(2)(a)–(c)). It also allows the Minister to exclude limited categories of employees in respect of whom special problems of a substantial nature arise (section 3(4)). The Committee also notes that self-employed workers are not covered by the Act. The Committee asks the Government to indicate how the self-employed and the categories of workers covered by section 3(2)(a)–(c) of the Employment Act are protected against discrimination in employment and occupation. Please also indicate whether other categories of workers have been excluded from the application of the Act, particularly its non-discrimination provisions, pursuant to section 3(4).

Article 2 of the Convention. Application of the policy on equality to workers in export processing zones (EPZs). The Committee notes the Government’s confirmation that section 5 of the Employment Act 2007 (non-discrimination and equality of opportunity) applies to workers in EPZs. The Committee asks the Government to provide information on the number, nature and outcome of cases detected by the labour inspection services or complaints submitted to the industrial court or labour officers by workers in EPZs concerning non-compliance with section 5 of the Employment Act. Please also confirm whether section 6 applies to EPZs.

Equality of opportunity and treatment of men and women. The Committee recalls the recommendations of the “Kenya country study” and the analysis of the situation of women in employment and occupation contained in Sessional Paper No. 2 of 2006. The Committee notes from the statistics provided by the Government that women’s participation in wage employment hardly increased (30.2 per cent in 2007 as compared to 29.6 in 2004), and that more women than men are employed as casual workers. Women are primarily employed in the education services, followed by agricultural and forestry, and other services. Noting that little progress has been made in promoting women in wage employment, and that no information has been provided on the specific action taken to implement the recommendations set out in the above-noted studies, the Committee asks the Government to take the necessary steps to follow up on these recommendations and to report on the progress made. Please continue to provide updated information, including statistics disaggregated by sex, on the position of men and women in the formal and informal economy.

Vocational training and guidance. The Committee notes that women and men enrol almost at equal levels in technical institutions, but that women’s participation is significantly higher than men’s in youth polytechnics, while clearly more male students are enrolling in other technical institutions. The Committee asks the Government to continue to provide statistics on the participation of men and women in vocational training, with further indications on the types of training courses in which they enrol as well as on the impact of vocational training on employment.

Addressing gender stereotypes. The Committee notes the concluding observations of the Committee on the Elimination of Discrimination Against Women (CEDAW) regarding the “persistence of adverse cultural norms, practices and traditions as well as patriarchal attitudes and deep-rooted stereotypes regarding the roles, responsibilities and identities of women and men in all spheres of life” (CEDAW/C/KEN/CO/6, 10 August 2007, paragraphs 21–22). The Committee recalls that such practices and stereotypes on women’s suitability for certain employment and occupations are likely to lead to women and men being channelled into different education and training and subsequently into different jobs, thus encouraging occupational segregation. The Committee requests the Government to provide information on specific initiatives to address adverse traditional practices and stereotypes regarding the role of men and women in society and the labour market. Please include any information on measures taken in this regard in collaboration with workers’ and employers’ organizations.

Equality of opportunity and treatment of ethnic minority groups. With respect to measures aimed at ensuring equal opportunities in employment and education for all groups in society, the Committee notes the Government’s statement on the quota system in the education system, and the lowering of entry requirements for learning institutions for students of marginalized areas and minority groups. With respect to minority groups, such as Maasai, Ogiek, and Endorois who are pastoralists and hunter-gatherers, the Committee notes the ILO study on “Indigenous peoples’ rights to lands, territories and resources related to discrimination in employment and occupation: Case study on practices of pastoralism and hunting-gathering in Kenya” (2008). The study lists a number of recommendations, including legislative reform, constitutional review, awareness raising, and affirmative action measures to improve the possibilities pastoralists and hunter-gatherers to engage in their traditional occupations and protect their rights. The Committee understands the Government will be taking measures to address historical injustices afflicted in Kenya, including by reviving the constitutional review process. However, it also notes the concern expressed by the Committee on Economic, Social and Cultural Rights, in its concluding observations, about the demolition of dwellings and forced evictions of pastoralist communities in the Rift Valley, forest dwellers such as the Mau Forest Ogiek, and persons living in informal settlements and on road reserves (E/C.12/KEN/CO/1, paragraph 31). The Committee asks the Government to provide further details, including statistics, on the participation of ethnic minority groups in education and vocational training. Please also provide information on the legislative and other measures taken to ensure that all ethnic minority groups enjoy equal opportunity with the rest of the population with respect to all areas of work, including traditional occupations, and the results achieved. Please provide particular information on the follow-up to the recommendations of the abovementioned ILO study on pastoralism and hunting.

Article 3. Awareness raising. The Committee reiterates its request to the Government to provide additional information on the awareness-raising and training activities concerning equality, including examples of specific initiatives, carried out by the Kenya Human Rights Commission, the Ministry of Labour, the Kenya Federation of Employers and the Central Organization of Trade Unions.

Article 4. Measures affecting persons justifiably suspected of, or engaged in, activities prejudicial to the security of the State. The Committee notes that section 5(3)(d) of the Employment Act 2007 provides that restricting access to limited categories of employment where it is necessary in the interest of state security shall not be discriminatory. The Committee requests the Government to provide information on any legislative or administrative measures that may have been taken or which may be envisaged with the effect of excluding certain persons from employment for state security reasons. Please also provide information on any cases addressing this provision.