Enhancing decent employment in Kenya through effective labour inspection

The rights of employees, prevention of abuses at workplaces, and the promotion of economic and social development are some of the positive results of effective labour inspection. In Kenya, labour inspection helps in the achievement of a successful labour market because, through it, labour law violations are minimized.

Article | 19 June 2023

The rights of employees, prevention of abuses at workplaces, and the promotion of economic and social development are some of the positive results of effective labour inspection. In Kenya, labour inspection helps in the achievement of a successful labour market because, through it, labour law violations are minimized. This noble task is undertaken by labour inspectors who ensure that employees are given the right kinds of advice – preventive, reparative, developmental, and technological. They also offer guidelines, prevention resources, and the promotion of best workplace practices to employees. Enforcement of employee rights, employer abuse prevention, and promotion of economic and social growth are among the critical roles of labour inspectors. Labour inspectors, therefore, contribute to the realization of decent employment and help promote healthy working conditions for workers.

Enforcement of labour laws is the mandate of the Ministry of Labour and Social Protection (ML&SP) and its agencies in Kenya. It is the ML&SP that provides information to workers and employers about their rights and responsibilities, promotes the protection of workers, and sound industrial relations including mediation and dispute resolution. Overall, ML&SP and its agencies strive to promote decent employment and better workplace practices that ensure compliance with labour standards and improve the functioning of the labour market. This makes it the core of the labour administration and instrumental in enforcing gender equality legislation and policy in Kenya.

A recent rapid assessment of the labour inspection by the All Hands in Kenya project, an ILO Project that advances labour standards through cooperative action, revealed that the Kenyan Government has an opportunity to build an effective labour administration and labour inspection systems through genuine and timely tripartite social dialogue. The presence of workers’ and employers’ organizations, and respect for freedom of association can facilitate effective labour inspection because an effective tripartite arrangement will have been created.

Through desk review of secondary data and face-to-face interviews with purposively selected key informants, the assessment documented accounts of the status of the labour inspectorate in Kenya, its structural setup, capacity, and capabilities. Qualitative and quantitative methods (desk reviews, key informant interviews, and focus group discussions) were employed to collect appropriate data that informed the assessment findings. Respondents from the agricultural (tea) and apparel sector were from national and county offices.

Key findings of this assessment: 

Visibility of labour inspectorate is waning because inspections are neither structured nor planned for, with limited capacity and resources for monitoring work environments. It is therefore difficult to watch safety and health hazards, accidents, dangerous occurrences, and occupational diseases, process applications for registration of workplaces and employers (under the Occupational Safety and Health Act and Work Injury Benefits Act respectively), and while dealing with work injury benefits claims, among others.

Secondly, due to low budgetary allocation, labour inspectorate experiences low funding which hinders inspectors’ visits to various work sites. Besides funding, prosecutorial powers that were erstwhile held by labour inspectorate have been transferred to the Office of the Director of Public Prosecutions (ODPP). Current labour inspectors also have low levels of awareness and mastery of the statutes that govern the labour industry. The statutes include National Occupational Safety and Health Policy, 2012; Work Injury Benefits Act, 2007; HIV/AIDS Prevention and Control Act, 2006; World Bank Environmental and Social Framework; World Bank Group Environmental, Health and Safety Guidelines (WB ESF; WBG EHS Guidelines); and COVID-19 prevention guidelines. Also, provisions of the Civil Procedure Act (Cap.21) and the Rules of Procedure, the Employment Act (2007); the Labour Relations Act (2007); the Labour Institutions Act (2007); Occupational Safety & Health Act (2007), the Employment and Labour Relations Court Act (2011) and all other appurtenant laws. Despite this digital age, the Kenya Labour Inspectorate still relies on manual means of data collection, which is quite obsolete. As a result, evidence for the enforcement of workers’ rights cannot be compiled because of the loss of information due to manual data collection.

Further, due to a lack of harmony in the institutions and departments responsible for inspection, employers encounter harassment from inspectors whose authenticity they claim cannot be verified but whose intention is sometimes to solicit money from companies that do not adhere to labour laws. Labour inspectors are also reluctant to forward cases to ODPP since they (inspectors) fail to convince the prosecution that their cases are criminal and befitting the standard of beyond reasonable doubt. Most of the cases presented by labour inspectors before the court are found to be civil and not criminal, which ipso facto makes inspectors opt for alternative dispute resolution mechanisms.

Remedial measures in labour-related grievances are limited and inconsistent thus leading to a high prevalence of unresolved labour-related disputes. Furthermore, the enforcement mechanism is weak as indicated by an inadequate number of national and county labour inspectors and a lack of effective operational-level grievance-handling mechanisms.

The labour inspection system is premised on international labour standards and especially the Labour Inspection Convention, 1947 (No. 81) and its Protocol of 1995, the Employment Service Convention, 1948 (No. 88), the Employment Policy Convention, 1964 (No. 122), the Labour Inspection (Agriculture) Convention, 1969 (No. 129), the Labour Administration Convention, 1978 (No. 150), the Occupational Safety and Health Convention, 1981 (No. 155), and the Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187). More needs to be done to reform and improve the current labour inspection system to align it with international law requirements. 

To improve practice, it is recommended that training and support be provided for the judicial, administrative, and oversight organs to ensure accountability of the labour inspection. The capacity of the labour inspection department ought to be increased to enable it to handle tea and apparel sector-related grievances effectively. This can be achieved by; increasing the number of trained labour inspectors to monitor and enforce compliance with labour standards by employers in the sector. the implementation of mandatory policies to address health and safety, minimum wages, equal pay for work of equal value, prohibition of child labour, and non-discrimination against women among other work-related concerns.

There is a need to build the technical capacity of organisations working in the tea and apparel sectors on advocacy, welfare, capacity, and enforcement issues to help them successfully monitor labour inspection issues of employers and to advocate for workers to enforce their right to remedy.

Effective application of labour legislation in Kenya is dependent on the efficacy of the labour inspectorate which monitors the application of international labour standards at the workplace and who advises employers and workers on how to improve the application of national law, for instance, working time, wages, occupational safety and health, gender biases, and child labour.

Labour inspection regime challenges in Kenya such as underfunding, limited and untrained staff, lack of equipment and tools, and weak enforcement singly and collectively contribute to the under-performance of labour inspectors. As such, there is a need for a systemic policy review to create an enabling environment to address the challenges that affect the labour inspectorate.