Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

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

Articles 1 and 2 of the Convention. Legislation. Scope of application. The Committee notes that the National Police Service Act, 2011, section 5, provides for the application of the two-thirds gender principle to all appointments (that is, not more than two-thirds of appointments should be of the same gender) and requires that the police service reflect the regional and ethnic diversity of the people of Kenya. However, it does not cover all the grounds of discrimination protected under Article 1(1)(a) of the Convention. The Committee notes the Government’s indication that the National Gender and Equality Commission (NGEC) has provided advice to the police service, the armed forces and the national youth service (NYS) with a view to strengthening the application of the principle of equality and non-discrimination in their recruitment processes. The Committee further notes that in May 2017 the Ministry of Defence adopted a Gender Policy aimed at ensuring gender mainstreaming within the military and civilian components of the Ministry. The Committee asks the Government to provide information on the measures adopted following the recommendations of the NGEC, including the results of the assessment of the NYS programme. It also asks the Government to supply information on the measures adopted under the Gender Policy of the Ministry of Defence and their impact. Recalling that, under Article 1(3) of the Convention, the principle of equality and non discrimination shall apply to all aspects of employment and occupation, including access to vocational training and terms and conditions of employment, the Committee asks the Government to indicate how it ensures in practice that the categories of workers explicitly excluded from the scope of the Employment Act, 2007 – namely members of the armed and police forces, the prison service and the NYS, and dependants in a family undertaking – are guaranteed equality of opportunity and treatment in respect of all the grounds of discrimination set out in the Convention. The Government is also asked once again to indicate whether these workers are covered by specific laws and regulations protecting them from discrimination.

Non-discrimination and equal opportunities of workers in export processing zones (EPZs). While noting the Government’s indication that no reports were made to the Department of Labour concerning cases of discrimination in EPZs, the Committee once again asks the Government to provide information on the number, nature and outcome of discrimination cases in EPZs detected by or brought to the attention of the labour inspection services and the NGEC.

Article 2. Equality of opportunity and treatment of men and women. The Committee welcomes the wide-ranging initiatives undertaken by the NGEC to promote equality and non-discrimination in employment and occupation, which are summarized in its 2017 Annual Report. It notes from the statistical information provided by the Government on the distribution of men and women in the public sector that the rate of women’s participation is lower than required by the two-thirds gender principle, with a few exceptions in the judiciary and constitutional bodies. The Committee also notes that, according to the assessment carried out in 2015 by the NGEC in 60 private sector institutions listed in the Nairobi Securities Exchange, only ten private sector institutions complied with the two-thirds gender principle and that women were sparsely represented in boardrooms (17 per cent of members and 8 per cent of chairs). The Committee notes that, in the framework of the Affirmative Action Policy, a set of recommendations to enhance the employment of women in the public sector have been formulated with a view to ensuring at least 30 per cent representation of women in recruitment, promotion and appointment at all decision-making levels. The Government adds that an equality monitoring tool for the private sector has been developed along with guidelines on mainstreaming equality and inclusion in business. The Committee further notes the information provided by the Government on the establishment of the UWEZO Fund to promote women’s self employment. Noting from the concluding observations of the United Nations Committee on Economic, Social and Cultural Rights that customary laws still deny women’s equal rights to inheritance and ownership of land (E/C.12/KEN/CO/2-5, 6 April 2016, paragraph 23), the Committee wishes to recall that promoting and ensuring access to material goods and services required to carry out an occupation, such as land, credit and other resources, should be part of the objectives of a national policy on equality (see General Survey on the fundamental Conventions, 2012, paragraph 756). The Committee asks the Government to continue providing information on the measures adopted as a result of the gender equality monitoring conducted in the public and private sectors and their impact, including statistics on the distribution of men and women in employment and occupation. The Government is also asked to supply information on the steps taken to promote women’s self-employment and their access to land, credit and other material goods and services needed to perform an occupation. The Committee also asks the Government to indicate the status and contents of the National Policy on Gender Development and the Equality Policy in relation to education, training, employment and occupation.

Addressing gender stereotypes. Noting the national multimedia campaign “Tubadili, Tusitawi Pamoja”, which was launched in 2015 to raise awareness of the social and economic importance of equity and inclusion, the Committee again asks the Government to provide information on any specific steps taken pursuant to this or other campaigns to combat gender stereotypes in education, training, employment and occupation.

Equality of opportunity and treatment of ethnic minority groups and indigenous peoples. The Committee recalls its previous comments on the discrimination and land dispossessions suffered by minority and indigenous communities. It notes that, despite the establishment, on 26 September 2014, of the Task Force on the implementation of the decision of the African Commission on Human and Peoples’ Rights in the Endorois case, little progress has been made (E/C.12/KEN/CO/2-5, paragraph 15). The Committee also notes from the concluding observations of the United Nations Committee on the Elimination of Racial Discrimination (CERD) that forced evictions of the Sengwer, Ogiek and Endorois people are continuing, with serious repercussions on their livelihoods (CERD/C/KEN/CO/5-7, 8 June 2017, paragraph 19). It also notes the judgment delivered by the African Court on Human and Peoples’ Rights on 26 May 2017 recognizing that the Government’s eviction of the Ogiek people was in violation of their rights under the African Charter on Human and Peoples’ Rights (Application No. 006/2012).

The Committee notes that the NGEC completed a Mapping of Ethnic Minorities and Marginalized Communities, as well as a First Country Status Report on Equality and Inclusion at the national and county government levels in four areas, i.e. education, employment, political participation and social protection, which is yet to be released. It notes the Government’s indication that preliminary findings suggest that minorities and marginalized communities are under represented in employment and education. It also notes that, under the National Employment Authority Act, 2016, the National Employment Authority has been tasked with enhancing access to employment for minorities and marginalized groups, among others. The Committee notes that one of the main issues faced by indigenous peoples relates to the lack of recognition of their rights to land, territories and resources which undermine their right to engage in traditional occupations. The Committee once again asks the Government to provide information on any measures adopted or envisaged with a view to ensuring that indigenous peoples are able to engage in their traditional occupations and livelihood activities, as well as on the steps taken to implement the decisions concerning the Endorois and Ogiek peoples. The Government is also asked to supply information on the main findings of the Status Report on Equality and Inclusion regarding education, training, employment and occupation, and any measures consequently adopted or envisaged to promote equality and non-discrimination of ethnic minority groups and indigenous peoples. The Committee also requests the Government to continue providing information on the activities of the NGEC and the National Land Commission, specifically concerning indigenous peoples.

Persons with disabilities. Noting the advisory services provided by the NGEC on the inclusion of persons with disabilities in employment and occupation, the Committee asks the Government to provide information on any specific measures adopted or envisaged in this respect.

Article 4. Measures affecting persons justifiably suspected of, or engaged in, activities prejudicial to the security of the State. In order to assess the scope of the restriction on access to employment pursuant to section 5(3) of the Employment Act, the Committee once again asks the Government to specify the “limited categories of employment” to which this section applies. The Government is also requested to indicate how it is ensured that the requirement of a “good conduct” certificate does not unduly limit the protection against discrimination under the Convention.

Enforcement. The Committee notes the Government’s indication that the NGEC received 16 complaints concerning discrimination in employment on the basis of pregnancy, disability and sex. The Committee asks the Government to continue providing information on cases of discrimination in employment and occupation processed by the NGEC and their results. It also asks the Government to provide information on judicial decisions related to the application of the Convention and cases of discrimination detected by or reported to labour inspectors, including sexual harassment cases.