Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Abolition of Forced Labour Convention, 1957 (No. 105) - Kenya (Ratification: 1964)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Repetition

Article 1(a) of the Convention. Penal sanctions involving compulsory labour as a punishment for expressing political views. In its earlier comments the Committee referred to certain provisions of the Societies Act, 1968, under which various violations of the Act are punishable with imprisonment (involving compulsory labour). The Committee notes the adoption of the Political Parties Act, 2007, which replaced the Societies Act, 1968, with regard to the registration and regulation of political parties, which were formerly governed by the Societies Act. The Committee understands, however, that the Societies Act, 1968, has not been repealed and remains in force as regards registration and regulation of societies.

The Committee notes that, under section 14(1) of the Political Parties Act, 2007, the Registrar shall not register a political party, inter alia, if it is founded on an ethnic, age, tribal, racial, gender, regional, linguistic, corporatist, professional or religious basis, or uses words, slogans, emblems or symbols which could arouse ethnic, age, tribal, racial, gender, regional, linguistic, corporatist, professional or religious division. The registration of a political party may be cancelled, among others, on similar grounds under section 26(1) of the Act. The Registrar shall also cancel the registration of a political party, which has been declared to be a prohibited organization under the provisions of any other law (section 39). Where the registration of a political party has been cancelled, no person shall summon a meeting of its members or officers, or attend a meeting in the capacity of a member or officer, or invite persons to support the political party, etc. (section 27). Any violation of the provisions of the Act is punishable with fines and imprisonment for a term not exceeding two years (which involves compulsory prison labour).

The Committee recalls that Article 1(a) of the Convention prohibits the use of forced or compulsory labour as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. Referring also to paragraphs 152–166 of its 2007 General Survey on the eradication of forced labour, the Committee points out that the Convention does not prohibit punishment by penalties involving compulsory labour of persons who use violence, incite violence or engage in preparatory acts aimed at violence. But sanctions involving compulsory labour fall within the scope of the Convention if they enforce a prohibition of the peaceful expression of views or of opposition to the established political, social or economic system, whether the prohibition is imposed by law or by an administrative decision. Such views may be expressed orally or through the press or other communications media or through the exercise of the right of association (including the establishment of political parties or societies) or participation in meetings and demonstrations.

The Committee observes that the scope of the provisions of the Political Parties Act, 2007, referred to above, is not limited to violence or incitement to violence and may lead to the imposition of penalties involving compulsory labour as a punishment of various non-violent actions affecting the organization of political parties.

The Committee hopes that appropriate measures will be taken with a view to amending the above provisions (e.g. by limiting their scope to the acts of violence or incitement to violence or replacing sanctions involving compulsory labour with other kinds of sanctions, such as, e.g., fines), in order to ensure that no form of forced or compulsory labour (including compulsory prison labour) may be imposed under the provisions in circumstances falling within the scope of the Convention. Pending the adoption of such measures, the Committee requests the Government to supply information on the practical application of the above provisions of the Political Parties Act, 2007, relating to the registration, cancellation of registration and prohibition of political parties, supplying sample copies of the relevant court decisions and indicating the penalties imposed.

In its earlier comments the Committee referred to section 5 of the Public Order Act (Cap. 56), under which the police authorities are entitled to control and direct the conduct of public gatherings and have extensive powers to refuse licences for public gatherings, contraventions being punishable with imprisonment (section 17), which involves compulsory labour. The Committee previously noted the Government’s indication that the Statute Law (Repeals and Miscellaneous Amendments) Act (No. 10, 1997) introduced amendments to section 5 of the Public Order Act, making it inapplicable to the situations referred to as “excluded meetings”. The Committee again requests the Government to communicate a copy of the amending text, as well as the information on the application of section 5 in practice, supplying copies of the relevant court decisions.

Referring to its observation under the Convention, the Committee again requests the Government to communicate detailed information regarding:

• (a) the application in practice of section 53 of the Penal Code concerning prohibited publications, as soon as such information becomes available;
• (b) the measures taken or contemplated in regard to sections 10 and 17 of the Public Order Act (as amended) and the Prohibited Publications Order, 1968 (LN 100), read in conjunction with section 53 of the Penal Code, to ensure the observance of the Convention.