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

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

The Committee notes the observations of the Central Organization of Trade Unions of Kenya (COTU-K) received on 1 September 2023. The Committee requests the Government to provide its comments in this respect.

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.

Articles 1 and 2 of the Convention. Legislation. Scope of application. In its last comment, the Committee requested the Government to indicate how it ensured the application of the principle of equality and non-discrimination to workers explicitly excluded from the scope of Employment Act, 2007 – namely members of the armed and police forces, the prison service and the National Youth Service (NYS), and dependants in a family undertaking. The Committee notes that the Government does not provide information in this regard in its report and observes that the Armed Forces Act, 1980, the National Police Service Act, 2011, the Prisons Act, 1977 and the National Youth Service Act, 2018 do not explicitly prohibit discrimination. Therefore, the Committee asks again the Government to specify the measures adopted to ensure that workers excluded from the scope of application of the Employment Act, 2007 are protected against discrimination in employment and occupation in practice. In follow up to its previous comments, the Committee also requests information on the implementation of the Gender Policy of the Ministry of Defense and on the activities of the National Gender and Equality Commission in relation to the protection of workers against discrimination in the armed and police forces, the prison service and the National Youth Service (NYS).

Article 2. Equality of opportunity and treatment of men and women. Statistics. In its last comment, the Committee requested the Government to provide statistics on the distribution of men and women in employment and occupation. While noting that the Government does not provide such information, the Committee observes that the 2019 National Policy on Gender and Development shows an increase in the proportion of women’s participation in wage employment in different sectors (agriculture, manufacturing, wholesale and financial sector). The Committee also notes that the same policy provides for the establishment of a database on employment records of women and men to evaluate and improve their employment conditions and for the collection of national and county sex disaggregated data and gender statistics by Kenya National Bureau of Statistics. The Committee requests the Government to provide information on the data collected by the Kenya National Bureau of Statistics on the distribution of men and women in employment and occupation.

National policies on gender equality. The Committee had previously requested the Government to provide information on the status and implementation of the national policies on gender equality. In this regard, the Committee takes note of the adoption of: (1) the 2019–24 Strategic Plan of the National Gender and Equality Commission (NGEC); (2) the 2018–22 Strategic Plan of the Ministry of Public Service, Youth and Gender Affairs; and (3) the 2019 National Policy on Gender Development. The Committee requests the Government to provide information on the implementation and the results of these policies.

Women’s self-employment, access to land, credit and other material goods and services. The Committee had requested the Government to inform 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 notes that the Government refers to: (1) the establishment in 2007 of the Women’s Enterprise Fund (WEF) with the objective to give women entrepreneurs access to credit and support services; (2) the launch in 2012 of the National Affirmative Action Fund, sought to increase access to financial facilities and employment services; (3) the programme “Access to Government Procurement Opportunity” (AGPO) initiated in 2013 to facilitate marginalized groups to participate in government procurement; and (4) the Uwezo Fund established in 2014 to provide business mentorship opportunities and access to funds to set up businesses. The Committee further observes that one of the objectives of the 2019 National Policy on Gender Development is to harmonize land laws and secure land rights for women to enable their participation in and benefit from the agriculture. The Committee also notes that according to the 2019–2024 Strategic Plan of the NGEC, this commission will work closely with national government institutions and the county governments to promote equitable distribution of resources. The Committee requests the Government to provide information on the concrete results of these measures and policies, including statistical or qualitative data.

Addressing gender stereotypes. Recalling that it requested the Government to provide information in this regard, the Committee notes that the 2019 National Policy on Gender and Development provides for specific policy actions to eliminate gender stereotypes such as for example, increasing women access to media content and decision-making positions in this industry, censoring media contents that perpetuate gender stereotypes, and addressing negative gender stereotypes among with children and youth. The Committee requests the Government to provide information on the measures adopted to implement the actions envisaged in these policies to combat gender stereotype in training, employment and occupation.

Equality of opportunity and treatment of ethnic minority groups and indigenous people. In its last comment, the Committee requested the Government to provide information on: (1) the measures adopted or envisaged to ensure that indigenous people have access to their traditional occupations and livelihood activities; (2) the follow up given to the decisions of the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights (ACHPR) on the situation of the Endorois and Ogiek people; (3) the findings of the NGEC’s Status Report on Equality and Inclusion; and (4) the activities of the NGEC and the National Land Commission in relation with the indigenous people. While the report of the Government does not address these matters, the Committee observes that: (1) one of the objectives of the 2019 National Policy on Gender and Development is to enhance and intensively promote the social, economic and political inclusion of all, irrespective of age, sex, disability, race, ethnicity, origin, religion, economic or other status; and that (2) based on the 2018–23 Strategic Plan of the Kenya National Commission on Human Right (KNCHR), the KNCHR facilitates the restoration of the Endorois people’s rights and the implementation of the ACHPR decisions. The Committee requests the Government to provide detailed information on the activities conducted by the Kenya National Commission on Human Rights (NCHR), the National Land Commission, or other institutions and actors (including workers and employers’ organizations), to promote and implement the principle of equality of opportunity and treatment of workers belonging to ethnic minority groups and indigenous people.

Persons with disabilities. In follow to its request for information on the measures adopted or envisaged to promote the inclusion of persons with disabilities in employment and occupation, the Committee takes note of the 2018–22 Strategic Plan of the National Council for Persons with Disabilities that addresses extensively non-discrimination in employment opportunities and provides for the adoption of a number of specific measures, including the creation of an employment portal linked to the Kenyan labour market, access to scholarships, and opportunities for self-employment and entrepreneurship. The Committee requests the Government to provide information on the concrete measures adopted and their impact on the employment of persons with disabilities.

Article 4. Measures affecting persons justifiably suspected of, or engaged in, activities prejudicial to the security of the State. The Committee once again requests the Government to specify the scope of application of section 5(3) of the Employment Act, 2007 and to provide information about the “good conduct” certificate.

Enforcement. In its last comment, the Committee requested the Government to provide information on: (1) the number of cases of discrimination in employment or occupation reported to or detected by labour inspectors – including in Export processing zones (EPZs); and (2) on such cases processed by the NGEC and the courts. The Committee takes note of the reference of the Government to the 2014 judicial decision of the Industrial Court of Nairobi, imposing sanctions following a finding of wage discrimination on the basis of race. The Committee notes however that the Government does not provide information on the number of cases of discrimination handled by the labour inspection, the NGEC or the courts. It therefore requests the Government to provide information on the number of cases related to the implementation of the Convention, processed by the labour inspectorate, the NGEC or the courts, including information on the nature of the discrimination and the outcome of these cases.

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Articles 1 and 2 of the Convention. Legislation. Scope of application. In its last comment, the Committee requested the Government to indicate how it ensured the application of the principle of equality and non-discrimination to workers explicitly excluded from the scope of Employment Act, 2007 – namely members of the armed and police forces, the prison service and the National Youth Service (NYS), and dependants in a family undertaking. The Committee notes that the Government does not provide information in this regard in its report and observes that the Armed Forces Act, 1980, the National Police Service Act, 2011, the Prisons Act, 1977 and the National Youth Service Act, 2018 do not explicitly prohibit discrimination. Therefore, the Committee asks again the Government to specify the measures adopted to ensure that workers excluded from the scope of application of the Employment Act, 2007 are protected against discrimination in employment and occupation in practice. In follow up to its previous comments, the Committee also requests information on the implementation of the Gender Policy of the Ministry of Defense and on the activities of the National Gender and Equality Commission in relation to the protection of workers against discrimination in the armed and police forces, the prison service and the National Youth Service (NYS).

Article 2. Equality of opportunity and treatment of men and women. Statistics. In its last comment, the Committee requested the Government to provide statistics on the distribution of men and women in employment and occupation. While noting that the Government does not provide such information, the Committee observes that the 2019 National Policy on Gender and Development shows an increase in the proportion of women’s participation in wage employment in different sectors (agriculture, manufacturing, wholesale and financial sector). The Committee also notes that the same policy provides for the establishment of a database on employment records of women and men to evaluate and improve their employment conditions and for the collection of national and county sex disaggregated data and gender statistics by Kenya National Bureau of Statistics. The Committee requests the Government to provide information on the data collected by the Kenya National Bureau of Statistics on the distribution of men and women in employment and occupation.

National policies on gender equality. The Committee had previously requested the Government to provide information on the status and implementation of the national policies on gender equality. In this regard, the Committee takes note of the adoption of: (1) the 2019–2024 Strategic Plan of the National Gender and Equality Commission (NGEC); (2) the 2018–2022 Strategic Plan of the Ministry of Public Service, Youth and Gender Affairs; and (3) the 2019 National Policy on Gender Development. The Committee requests the Government to provide information on the implementation and the results of these policies.

Women’s self-employment, access to land, credit and other material goods and services. The Committee had requested the Government to inform 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 notes that the Government refers to: (1) the establishment in 2007 of the Women’s Enterprise Fund (WEF) with the objective to give women entrepreneurs access to credit and support services; (2) the launch in 2012 of the National Affirmative Action Fund, sought to increase access to financial facilities and employment services; (3) the programme “Access to Government Procurement Opportunity” (AGPO) initiated in 2013 to facilitate marginalized groups to participate in government procurement; and (4) the Uwezo Fund established in 2014 to provide business mentorship opportunities and access to funds to set up businesses. The Committee further observes that one of the objectives of the 2019 National Policy on Gender Development is to harmonize land laws and secure land rights for women to enable their participation in and benefit from the agriculture. The Committee also notes that according to the 2019–2024 Strategic Plan of the NGEC, this commission will work closely with national government institutions and the county governments to promote equitable distribution of resources. The Committee requests the Government to provide information on the concrete results of these measures and policies, including statistical or qualitative data.

Addressing gender stereotypes. Recalling that it requested the Government to provide information in this regard, the Committee notes that the 2019 National Policy on Gender and Development provides for specific policy actions to eliminate gender stereotypes such as for example, increasing women access to media content and decision-making positions in this industry, censoring media contents that perpetuate gender stereotypes, and addressing negative gender stereotypes among with children and youth. The Committee requests the Government to provide information on the measures adopted to implement the actions envisaged in these policies to combat gender stereotype in training, employment and occupation.

Equality of opportunity and treatment of ethnic minority groups and indigenous people. In its last comment, the Committee requested the Government to provide information on: (1) the measures adopted or envisaged to ensure that indigenous people have access to their traditional occupations and livelihood activities; (2) the follow up given to the decisions of the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights (ACHPR) on the situation of the Endorois and Ogiek people; (3) the findings of the NGEC’s Status Report on Equality and Inclusion; and (4) the activities of the NGEC and the National Land Commission in relation with the indigenous people. While the report of the Government does not address these matters, the Committee observes that: (1) one of the objectives of the 2019 National Policy on Gender and Development is to enhance and intensively promote the social, economic and political inclusion of all, irrespective of age, sex, disability, race, ethnicity, origin, religion, economic or other status; and that (2) based on the 2018–2023 Strategic Plan of the Kenya National Commission on Human Right (KNCHR), the KNCHR facilitates the restoration of the Endorois people’s rights and the implementation of the ACHPR decisions. The Committee requests the Government to provide detailed information on the activities conducted by the Kenya National Commission on Human Rights (NCHR), the National Land Commission, or other institutions and actors (including workers and employers’ organizations), to promote and implement the principle of equality of opportunity and treatment of workers belonging to ethnic minority groups and indigenous people.

Persons with disabilities. In follow to its request for information on the measures adopted or envisaged to promote the inclusion of persons with disabilities in employment and occupation, the Committee takes note of the 2018–2022 Strategic Plan of the National Council for Persons with Disabilities that addresses extensively non-discrimination in employment opportunities and provides for the adoption of a number of specific measures, including the creation of an employment portal linked to the Kenyan labour market, access to scholarships, and opportunities for self-employment and entrepreneurship. The Committee requests the Government to provide information on the concrete measures adopted and their impact on the employment of persons with disabilities.

Article 4. Measures affecting persons justifiably suspected of, or engaged in, activities prejudicial to the security of the State. The Committee once again requests the Government to specify the scope of application of section 5(3) of the Employment Act, 2007 and to provide information about the “good conduct” certificate.

Enforcement. In its last comment, the Committee requested the Government to provide information on: (1) the number of cases of discrimination in employment or occupation reported to or detected by labour inspectors – including in Export processing zones (EPZs); and (2) on such cases processed by the NGEC and the courts. The Committee takes note of the reference of the Government to the 2014 judicial decision of the Industrial Court of Nairobi, imposing sanctions following a finding of wage discrimination on the basis of race. The Committee notes however that the Government does not provide information on the number of cases of discrimination handled by the labour inspection, the NGEC or the courts. It therefore requests the Government to provide information on the number of cases related to the implementation of the Convention, processed by the labour inspectorate, the NGEC or the courts, including information on the nature of the discrimination and the outcome of these cases.

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

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.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Legislation. Scope of application. While noting the Government’s indication that an audit will be undertaken and its results communicated to the Office on this issue, the Committee once again requests the Government to indicate if the categories of workers explicitly excluded from the scope of the Employment Act, 2007, pursuant to section 3(2), are covered by specific laws or regulations protecting them from discrimination in employment and occupation. The Government is also requested to supply the results of the audit when available.

Non-discrimination and equal opportunities of workers in export processing zones (EPZs). Given the increasing number of workers working in EPZs, according to the Export Processing Zones Programme – Annual Performance Report, 2012, the Committee once again asks the Government to provide a copy of the report of the Department of Labour on EPZs. It asks the Government to provide specific 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 National Gender and Equality Commission.

Equality of opportunity and treatment of men and women. The Committee welcomes the Government’s statement that it is in the process of putting in place an Affirmative Action Policy, a National Policy on Gender and Development, and an Equality Policy, with the involvement of the National Gender and Equality Commission (NGEC). It also welcomes the Government’s indication that in August 2013 the NGEC introduced a performance monitoring tool for the public sector which is designed to identify inequalities based on sex, as well as other inequalities, and will be used to monitor recruitments, promotions and access to training opportunities and inform on representation by sex. According to the Government, the tool will become effective before the end of 2013, after which public sector agencies will be required to submit quarterly reports to the NGEC which will be published for the Parliament. The Committee notes the Government’s indication that the NGEC, in cooperation with key actors of the private sector, is in the process of developing a similar monitoring tool for this sector. The Committee notes the Government’s indication that the Women’s Enterprise Fund, which promotes access to credit and self-employment, won the Millennium Development Goals Award for outstanding achievement in promoting gender equality and women’s empowerment in 2011. Welcoming the efforts and the progress made to promote gender equality in employment and occupation, the Committee requests the Government to provide information on the following:

• (i) the status and content of the Affirmative Action Policy, National Policy on Gender and Development, and Equality Policy, as far as education, training, employment and occupation are concerned;
• (ii) the distribution of men and women at the different job levels in the public sector;
• (iii) the measures taken as a result of the gender monitoring conducted in the public sector with the tool developed to this end, and their impact on gender equality;
• (iv) the progress made in developing a similar tool for the private sector, indicating the role of the social partners in this process; and
• (v) the measures taken to promote self-employment of women, including access to credit.

Addressing gender stereotypes. The Committee notes the Government’s indication that it will endeavour to carry out awareness-raising campaigns in collaboration with the social partners to effectively address gender stereotypes. The Committee asks the Government to provide information on any specific measures taken in this respect in the context of education, training, employment and occupation, in cooperation with the workers’ and employers’ organizations.

Equality of opportunity and treatment of ethnic minority groups and indigenous peoples. The Committee notes the Government’s statement that it is in the process of implementing the judgments of the African Court on Human and Peoples’ Rights, which held that the Government’s evictions of the Ogiek and Endorois were a violation of their rights under the African Charter of Human and People’s Rights. The Committee welcomes the establishment of the National Land Commission (NLC), pursuant to article 67 of the Constitution, which has the general mandate of managing public land and may initiate investigations, on its own initiative or on the basis of a complaint, into present or historical land injustices and recommend appropriate redress (section 5 of the National Land Commission Act, 2012). The NLC is composed of nine independent members appointed on the basis of their qualifications and experience. The Government indicates that the NLC cooperates with the NGEC to follow up on the implementation of the two judgments concerning the Endorois and Ogiek communities. The Committee notes from the report of the African Commission’s Working Group on Indigenous Populations/Communities, adopted by the African Commission on Human and Peoples’ Rights at its 50th Ordinary Session (24 October–5 November 2011) that, despite the progress made in the 2010 Constitution, Kenya’s minority and indigenous communities, who are often not officially recognized as such, continue to suffer from marginalization and discrimination and dispossession of their land that threatens the very existence of their livelihood. The Committee asks the Government to provide information on the steps taken to implement the judgments regarding the Ogiek and Endorois communities as well as on any other measures taken or envisaged with a view to ensuring that indigenous peoples are able to engage in their traditional occupations and livelihood activities. The Government is also asked to provide information on specific legislative and policy measures taken in accordance with article 56 of the Constitution, including affirmative action programmes, to increase the opportunities of minorities and indigenous peoples in education and vocational training, as well as in employment and occupation, and promote equality and non-discrimination. Please also continue to provide information on the activities of the NLC and the NGEC specifically concerning indigenous peoples, including any research or audit on their status.

Article 4 of the Convention. Measures affecting persons justifiably suspected of, or engaged in, activities prejudicial to the security of the State. The Committee notes the Government’s indication that no legislative measures have been undertaken to exclude certain persons from employment which would amount to discriminatory action. 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 requests the Government to specify the “limited categories of employment” concerned by this section. Please also 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 welcomes the decision of 8 November 2013 of the Industrial Court of Kenya in Kioka v. Catholic University of Eastern Africa, in which the Court found that the Catholic University of Eastern Africa had unlawfully discriminated against its female employee by continuing to employ her on casual terms at a lower salary than her male counterparts, conducting an HIV test without her consent, maintaining her on progressively shorter contracts, denying her paid maternity leave and ultimately terminating her employment. The Court determined that such conduct constituted discrimination based on sex, HIV status and pregnancy in contravention of Article 1 of the Convention, the HIV and AIDS Recommendation, 2010 (No. 200), the Equal Remuneration Convention, 1951 (No. 100), and section 5 of the Employment Act, 2007. The Committee requests the Government to continue to provide information on judicial decisions related to the application of the Convention. The Committee also requests information on cases of discrimination detected by or reported to labour inspectors, including sexual harassment cases.

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Specialized equality body. The Committee notes with interest the creation of the National Gender and Equality Commission (NGEC) through the enactment of the National Gender and Equality Commission Act, 2011, pursuant to article 59(4) of the Constitution. The Government indicates that the NGEC, which has the overall mandate of promoting gender equality and freedom from discrimination in accordance with article 27 of the Constitution, was fully constituted in May 2012 and has started some activities of awareness raising of civic rights. It has also taken steps to promote affirmative action measures, through participation in public interest litigation before the Supreme Court, seeking direction on the implementation of the two-thirds gender principle within the Parliament. The NGEC, which is composed of five independent members, has a comprehensive mandate and extensive functions in the field of equality and non discrimination, such as: facilitating mainstreaming of issues of gender, persons with disabilities and other marginalized groups in national development; monitoring, facilitating and advising on affirmative action; investigating complaints and making recommendations for the improvement of the institutions concerned; conducting audits on the status of special interest groups (minorities, marginalized groups, persons with disabilities, women, youth and children); conducting and coordinating research activities; establishing databases; and preparing annual reports for the Parliament (section 8 of the 2011 Act). The NGEC also has general powers which include adjudicating on matters relating to equality and freedom from discrimination and entering any establishment, premises or land (by order of the court), as well as specific powers relating to investigations and dealing with complaints, and may, upon inquiry into a complaint, refer the matter to the Prosecutor or recommend to the complainant a course of other judicial redress or settlement (sections 26–41 of the Act). The Committee requests the Government to continue to provide information on the NGEC’s advisory, promotional and investigative activities in the field of non discrimination and equality in employment and occupation, indicating the number and nature of discrimination cases dealt with and the results thereof.

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

Legislation. Scope of application. The Committee notes the Government’s indication that no category of worker has been excluded by the Minister from the application of the Employment Act, 2007, pursuant to section 3(4), and that protection against discrimination is ensured pursuant to section 27 of the 2010 Constitution, which applies to all persons, including the self-employed, Kenya Prisons service, administration police force and national youth service. The Committee notes that general constitutional provisions regarding equality, while important, have generally not been sufficient in order to address specific cases of discrimination in employment and occupation. The Committee requests the Government to continue to provide information on any exclusions determined by the Minister pursuant to section 3(4) of the Employment Act, and to indicate if the categories of workers excluded from the scope of the Act pursuant to section 3(2) – namely the armed and police forces, prisons and National Youth services, and dependants in a family undertaking – are covered by specific laws or regulations protecting them from discrimination in employment or occupation.

Non-discrimination and equal opportunities of workers in export processing zones (EPZs). The Committee notes the Government’s indication that all provisions of the Employment Act, 2007 apply to EPZs. The Committee welcomes the information regarding the comprehensive labour inspections in the EPZs being undertaken by the Department of Labour, and that a report will be prepared compiling the results of this inspection process. The Committee asks the Government to provide a copy of the report of the Department of Labour, and hopes that it will contain information on the number, nature and outcome of cases detected by the labour inspection services in EPZs concerning non compliance with the equality and non-discrimination provisions of the Employment Act, 2007.

Equality of opportunity and treatment of men and women. The Committee notes that the 2010 Constitution provides that “women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres” and prohibits discrimination based on sex, pregnancy and marital status (article 27(3) and (4)). It notes from the statistics provided by the Government that the participation of women in wage employment remains low (30.4 per cent in 2009) and that women remain concentrated in particular economic sectors (education services, agriculture and forestry and other services). The Committee notes that the Ministry of Gender, Children and Social Development has developed a Training Manual on Gender Mainstreaming (June 2008), and a Monitoring and Evaluation Framework for Gender Mainstreaming (March 2009). In this respect, the Committee notes the Government’s commitment to mainstream gender in government policies, plans, budgets and programmes and to increase the participation of women in the economy through affirmative action. The Committee requests the Government to provide information on the measures taken to promote wage and self employment of women and to amend or repeal any discriminatory law to bring them into conformity with the new constitutional provisions on equality and non-discrimination.

Addressing gender stereotypes. The Committee notes the Government’s indication that gender focal persons within workers’ and employers’ organizations address stereotypes on the role of men and women in the labour market, through the implementation of gender policies. The Committee notes however that the Committee on the Elimination of Discrimination against Women (CEDAW), while noting efforts made in this context, reiterated its concern at 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/7, 5 April 2011, paragraph 17). The Committee urges the Government to take concrete measures, such as awareness-raising campaigns, in collaboration with the social partners, to address effectively gender stereotypes that generate and perpetuate gender discrimination in education, employment and occupation, including with respect to occupational gender segregation and women’s access to land and credit.

Equality of opportunity and treatment of ethnic minority groups and indigenous peoples. The Committee notes that the new Constitution provides for affirmative action programmes to be put in place in order to ensure that minorities and marginalized groups, including traditional, indigenous and pastoral communities that were or are disadvantaged by discrimination, are provided special opportunities in educational and economic fields and in access to employment (article 56). The Committee further notes that the Constitution provides for the development of a legal and policy framework on land rights, including community lands, and natural resources (Chapter 5). With respect to the Ogiek and Endorois communities to which the Committee referred in its previous comments, the Committee notes the recent concluding observations of the United Nations Committee on the Elimination of Racial Discrimination (CERD) expressing concern that no measures had been taken to act upon the decisions of the African Commission on Human and People’s Rights regarding their forced eviction from their lands, and that the people affected are without any redress to date (CERD/C/KEN/CO/1-4, 2 September 2011, paragraph 17). The Committee requests the Government to provide information on the measures taken or envisaged to address discrimination and inequalities faced by ethnic minorities and indigenous peoples. The Committee requests in particular information on the legislative and policy measures taken in accordance with the constitutional provisions on the rights of minorities, including the land policy, and the impact of such measures in ensuring that indigenous peoples are able to engage in their traditional occupations and livelihood activities. It further requests the Government to provide information on the specific situation of the Ogiek and Endorois communities, with respect to the exercise of their traditional occupations. Please also provide information on any affirmative action programmes or other measures put in place to increase the opportunities of minorities and indigenous peoples in education and vocational training as well as access to employment and occupation.

Article 4 of the Convention. Measures affecting persons justifiably suspected of, or engaged in, activities prejudicial to the security of the State. Further to its request regarding the application of section 5(3)(d) of the Employment Act, 2007, the Committee notes the Government’s indication that a certificate of good conduct must be obtained from the police as a prerequisite for recruitment in limited categories of employment, such as the security forces. With respect to the exception provided by Article 4 of the Convention, the Committee recalls that it should be interpreted strictly. All measures of state security should be sufficiently well defined and precise and the persons affected by the measures, namely the issuance of the certificate, must have the right to appeal to an independent body. The Committee requests the Government to indicate how it ensures that the requirement for a “good conduct” certificate does not unduly limit the protection under the Convention, and asks the Government to provide further information on all the categories of employment concerned.

Equality Body. The Committee notes the creation of the Kenya National Human Rights and Equality Commission (Part 5 of the Constitution), which has advisory, promotional, investigative and remedial functions. The Committee asks the Government to provide information, including regarding any relevant legislation, regarding the powers and functioning of the Kenya National Human Rights and Equality Commission as well as on its activities in the fields of non-discrimination and equality in employment and occupation.

Enforcement. Labour inspection. The Committee welcomes the fact that the inspection form provided by the Government contains specific items relating to discrimination, including sexual harassment. In order to better assess the situation in practice, the Committee requests the Government to provide information on cases of discrimination detected by or reported to labour inspectors, including sexual harassment cases.

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

Articles 1 and 2 of the Convention. The Committee notes with interest the promulgation on 27 August 2010 of a new Constitution which includes a comprehensive Bill of Rights and contains numerous provisions providing protection against discrimination, including provisions that the State or a person “shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth” (article 27(4) and (5)), thus broadening the list of prohibited grounds of discrimination. The Constitution also aims at promoting equality and diversity and it requires the State to take legislative and other measures such as affirmative action programmes and policies “designed to redress any disadvantage suffered by individuals or groups because of past discrimination” (article 27(6)). It creates a National Human Rights and Equality Commission, one of the functions of which is to promote gender equality and equity generally and to receive and investigate complaints (Part 5). The Committee further notes that the Constitution expressly states that the values and principles of public service include, inter alia, representation of Kenya’s diverse communities and affording adequate and equal opportunities for appointment, training, advancement, at all levels of the public service, of men and women, the members of all ethnic groups, and persons with disabilities (article 232(1)(h) and (i)). The Committee requests the Government to provide information on the practical application of the provisions of the 2010 Constitution on non-discrimination and equality, in particular on any legislative or practical measures taken or envisaged providing for affirmative action in favour of disadvantaged groups of the population and on any measures taken or envisaged to promote equal opportunity and treatment for all in the public service, including in the police and armed forces, and the results achieved.

The Committee is raising other points in a request addressed directly to the Government.

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

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.

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

The Committee notes with satisfaction the adoption of the new Employment Act 2007 which covers both the private and public sectors. The Act prohibits direct and indirect discrimination and harassment against an employee or a prospective employee on grounds of “race, colour, sex, language, religion, political or other opinion, nationality or ethnic or social origin, disability, pregnancy, mental status or HIV status” (section 5(3)(a)), in respect of recruitment, training, promotions, terms and conditions of employment, termination of employment or other matters arising out of the employment (section 5(3)(b)), and requires employers to pay equal remuneration for work of equal value (section 5(4)). Under the Act, the Minister, labour officers and the industrial court have a duty to promote equality of opportunity in employment in order to eliminate discrimination, as well as to promote and guarantee equality of opportunity for a person who is a migrant worker or a member of his or her family, lawfully in Kenya (section 5(1)(a) and (b)). Employers, including employment agencies, shall promote equal opportunity in employment and strive to eliminate discrimination in any employment policy or practice (section 5(2) and (7)). “Employment policy or practice” is broadly defined by section 5(7)(c) of the Act and covers all aspects of employment.  Furthermore, the Act prohibit sexual harassment by the employer, employers’ representatives, as well as co-workers (section 6). The definition of sexual harassment includes quid pro quo and hostile environment, and requires employers of more than 20 employees to adopt and implement a policy statement on sexual harassment (sections 6(1) and (2)). Finally, section 5(6) provides for the shifting of the burden of proof to the employer in the case of an alleged discrimination based on section 5. The Committee welcomes the provisions concerning non-discrimination and equality in the Employment Act 2007, and requests the Government to provide information on their practical application.

The Committee is raising other points in a request addressed directly to the Government.

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

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:

1. Legislative developments. Recalling its previous comments concerning the adoption of a new Constitution and the proposed Employment Bill, the Committee notes from the Government’s report that the proposed draft Constitution was rejected by a referendum held in November 2005 and the Employment Bill has not yet been enacted. The Committee requests the Government to keep it informed of any relevant changes in the legislation, particularly any progress made concerning the enactment of the Employment Bill. Recalling its previous comment concerning the need to prohibit discrimination at all stages of the employment process, the Committee requests the Government to ensure that the new legislation provides protection from discrimination also during recruitment, in accordance with the Convention.

2. Article 2. Obligation to declare and pursue a national policy to promote equality of opportunity with respect to employment and occupation. With regard to the laws and regulations applying the Convention to employment in the civil service and in export processing zones (EPZs), the Committee notes the Government’s indication that the civil service and EPZs are not excluded from the scope of the law. The Committee also notes the Service Commissions Act (Chapter 185, Laws of Kenya) and the regulations issued under it. With respect to the EPZs, the Committee requests the Government to confirm that the non-discrimination provisions of the proposed Employment Bill, once enacted, will be applicable to workers in EPZs.

3. Equality of opportunity and treatment of men and women. The Committee notes the study report on key gender and employment issues in agriculture and rural development as aspects of the poverty reduction strategy (Kenya country study), prepared at the request of the Ministry of Labour and Human Resource Development. One of the issues identified by the study report is the need to ensure that women benefit on an equal footing with men from agricultural support services. The Committee further notes the analysis of the situation of women in employment and occupation contained in the Sessional Paper No. 2 of 2006 on gender equality and development issued by the Ministry of Gender, Sports, Culture and Social Affairs. According to the Sessional Paper, participation of women in wage employment reached 29.6 per cent in 2004 (35.6 per cent in non-agricultural employment). In the civil service, women’s participation only increased from 24 per cent to 29.6 per cent between 1998 and 2003, with particular difficulties for women to access middle and senior positions. The paper sets out a number of measures that the Government intends to take with a view to enabling men and women to enjoy equal access to economic and employment opportunities, including awareness raising with a view to changing perceptions and traditions that perpetuate gender disparities, review of laws relating to impediments on access to and control of economic resources and the development of indicators of women’s participation in development. The Committee requests the Government to:

(a)   provide information on the specific action taken to implement the measures and recommendations set out in the abovementioned Sessional Paper and study report, and their impact on gender equality in employment and occupation;

(b)    continue to provide any relevant studies, surveys or reports, as well as updated statistical information concerning the position of men and women in the formal and informal labour market; and

(c)    continue to provide information on the participation of men and women in education and training, including concerning traditionally male-dominated occupations.

4. Equality of opportunity and treatment of ethnic minority groups. The Committee notes the Government’s statement that the Constitution provides for protection against all forms of discrimination for any groups or persons. In this regard, the Committee notes that legal protection from discrimination is indeed an important aspect of any national policy to promote equality in employment and occupation. However, the Committee notes that such legal protection alone may not be sufficient to promote equal opportunities for all groups of the population to appropriate training and education, as well as equal opportunities to access employment and occupations, including traditional livelihood activities. The Committee therefore requests the Government to provide information on any measures taken or envisaged to promote and ensure that minority groups enjoy work and employment opportunities on an equal footing with other parts of the population.

5. Article 3. Awareness raising. The Committee notes the Government statement that the Kenya Human Rights Commission, the Ministry of Labour, the Kenya Federation of Employers and Central Organization of Trade Unions were undertaking training and awareness-raising activities concerning equality. Please provide additional information on these awareness-raising and training activities, including examples of specific initiatives or programmes.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

1. Legislative developments. Recalling its previous comments concerning the adoption of a new Constitution and the proposed Employment Bill, the Committee notes from the Government’s report that the proposed draft Constitution was rejected by a referendum held in November 2005 and the Employment Bill has not yet been enacted. The Committee requests the Government to keep it informed of any relevant changes in the legislation, particularly any progress made concerning the enactment of the Employment Bill. Recalling its previous comment concerning the need to prohibit discrimination at all stages of the employment process, the Committee requests the Government to ensure that the new legislation provides protection from discrimination also during recruitment, in accordance with the Convention.

2. Article 2. Obligation to declare and pursue a national policy to promote equality of opportunity with respect to employment and occupation. With regard to the laws and regulations applying the Convention to employment in the civil service and in export processing zones (EPZs), the Committee notes the Government’s indication that the civil service and EPZs are not excluded from the scope of the law. The Committee also notes the Service Commissions Act (Chapter 185, Laws of Kenya) and the regulations issued under it. With respect to the EPZs, the Committee requests the Government to confirm that the non-discrimination provisions of the proposed Employment Bill, once enacted, will be applicable to workers in EPZs.

3. Equality of opportunity and treatment of men and women. The Committee notes the study report on key gender and employment issues in agriculture and rural development as aspects of the poverty reduction strategy (Kenya country study), prepared at the request of the Ministry of Labour and Human Resource Development. One of the issues identified by the study report is the need to ensure that women benefit on an equal footing with men from agricultural support services. The Committee further notes the analysis of the situation of women in employment and occupation contained in the Sessional Paper No. 2 of 2006 on gender equality and development issued by the Ministry of Gender, Sports, Culture and Social Affairs. According to the Sessional Paper, participation of women in wage employment reached 29.6 per cent in 2004 (35.6 per cent in non-agricultural employment). In the civil service, women’s participation only increased from 24 per cent to 29.6 per cent between 1998 and 2003, with particular difficulties for women to access middle and senior positions. The paper sets out a number of measures that the Government intends to take with a view to enabling men and women to enjoy equal access to economic and employment opportunities, including awareness raising with a view to changing perceptions and traditions that perpetuate gender disparities, review of laws relating to impediments on access to and control of economic resources and the development of indicators of women’s participation in development. The Committee requests the Government to:

(a)   provide information on the specific action taken to implement the measures and recommendations set out in the abovementioned Sessional Paper and study report, and their impact on gender equality in employment and occupation;

(b)   continue to provide any relevant studies, surveys or reports, as well as updated statistical information concerning the position of men and women in the formal and informal labour market; and

(c)   continue to provide information on the participation of men and women in education and training, including concerning traditionally male-dominated occupations.

4. Equality of opportunity and treatment of ethnic minority groups. The Committee notes the Government’s statement that the Constitution provides for protection against all forms of discrimination for any groups or persons. In this regard, the Committee notes that legal protection from discrimination is indeed an important aspect of any national policy to promote equality in employment and occupation. However, the Committee notes that such legal protection alone may not be sufficient to promote equal opportunities for all groups of the population to appropriate training and education, as well as equal opportunities to access employment and occupations, including traditional livelihood activities. The Committee therefore requests the Government to provide information on any measures taken or envisaged to promote and ensure that minority groups enjoy work and employment opportunities on an equal footing with other parts of the population.

5. Article 3. Awareness raising. The Committee notes the Government statement that the Kenya Human Rights Commission, the Ministry of Labour, the Kenya Federation of Employers and Central Organization of Trade Unions were undertaking training and awareness-raising activities concerning equality. Please provide additional information on these awareness-raising and training activities, including examples of specific initiatives or programmes.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the Government’s first report and requests the Government to provide additional information on the following points.

1. Article 1 of the Convention. Sexual harassment. Recalling its 2002 general observation on this issue, the Committee notes that section 7 of the Draft Employment Bill 2004 prohibits sexual harassment, covering harassment by the employer, employers’ representatives, as well as co-workers. The definition of sexual harassment under the Bill includes quid pro quo and hostile environment, and requires employers of more than 20 employees to adopt and implement a policy statement on sexual harassment the substance of which has to reflect certain elements listed in section 7(3) of the Bill. Please keep the Committee informed with regard to the adoption of the Bill and provide a text of the new Employment Act upon adoption.

2. Prohibition of discrimination. The Committee notes that article 82 of the Constitution prohibits discriminatory treatment by law and discriminatory acts in the performance of a public office or a public authority. The definition of the term "discriminatory" refers to the prohibited grounds of race, tribe, place of origin or residence or other local connection, political opinions, colour, creed or sex. The Committee also notes that article 43 of the new Draft Constitution, as contained in the Revised Zero Draft of a Bill to alter the Constitution of 27 February 2004, provides that the State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. Noting that article 43 of the Draft Constitution omits the prohibited ground of political opinion, which is contained in the current Constitution, as well as in Article 1(1)(a) of the Convention, the Committee strongly recommends that the prohibited ground of political opinion be maintained. Please indicate any new developments with regard to the adoption of the new Constitution and the measures taken to ensure that it prohibits discrimination on the basis of political opinion.

3. Equal access to employment. The Committee notes section 6 of the Draft Employment Bill which prohibits discrimination in employment and occupation. Recalling that the Convention provides for equality of opportunity and treatment with regard to access to employment (Article 1(3)), the Committee requests the Government to indicate whether the Bill would also outlaw discrimination at the recruitment stage. In case section 6, as currently drafted, only prohibits discrimination for persons already under a contract, the Government is asked to bring the provision into conformity with the Convention in this regard.

4. Article 2. Obligation to declare and pursue a national policy to promote equality of opportunity with respect to employment and occupation. The Committee recalls that the Convention has a broad scope of application, covering all workers. The Government is therefore asked to indicate how the national equality policy required under Article 2 of the Convention is being declared and pursued with respect to the civil service and in export processing zones. Please indicate the legislative and administrative or other measures taken to ensure equality of opportunity and treatment in employment and occupation with respect to these categories of employment.

5. Equality of opportunity and treatment of men and women. The Committee notes that affirmative action measures have been taken to strengthen women’s participation in university education. It asks the Government to provide information on the impact of these measures on women’s equality of opportunity in education and employment.

6. The Committee also notes from the Government’s report on the implementation of the Beijing Platform of Action (1994-2004) that women’s enrolment in polytechnic and other technical institutes has increased from 30.4 per cent in 1997/98 to 39.4 per cent in 2003/04. Please provide information on the distribution of men and women in the different disciplines and areas of studies offered by these institutions.

7. Noting that according to the Government the participation of women in wage employment in the formal sector remained at around 29 per cent between 1998 and 2003, the Committee asks the Government to provide information on the measures taken to promote women’s equal participation in this formal sector employment. Please continue to provide statistical information on the participation of men and women in the various sectors and occupations, and levels of responsibility.

8. Equality of opportunity and treatment on the basis of race and colour. The Government is requested to indicate the legislative, administrative and other measures taken to promote the application of the Convention with regard to members of minority groups.

9. Article 3. Measures to secure the acceptance and observance of the national equality policy. In the absence of such information in the Government’s reports, the Committee requests the Government to provide information on:

(a)  the concrete measures taken or envisaged to ensure the observance of the national equality policy in vocational training and guidance, as well as placement services, provided under the direction of a national authority; and

(b)  any educational, training or awareness-raising activities promoting equality of opportunity and treatment of all groups protected under the Convention among employers, jobseekers, labour inspectors and other competent public officials, and society at large.

10. Article 4. Measures affecting persons justifiably suspected of, or engaged in, activities prejudicial of the security of the State. The Committee notes that section 6 of the Draft Employment Bill provides that it shall be lawful to restrict access to limited categories of employment or functions where it is necessary in the interest of state security. 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.