Individual Case (CAS) - Discussion: 2013, Publication: 102nd ILC session (2013)

A Government representative recalled that when the present case had first been considered by the Committee in 2006, the only concern had been the delay in enacting the draft labour legislation. The Employer, Worker and Government members had acknowledged that the draft texts developed during the labour law reform in 2004 would adequately address the concerns raised by the Committee of Experts under Articles 2(1) and 7(1) of the Convention. The labour law reform had been completed in 2007 with the enactment of five texts, which aligned Kenyan labour legislation with international labour standards. The new laws, which had been developed through a tripartite consultative and participatory process, ensured that the principles of the Convention were well articulated in the Employment Act, Chapter VII of which was devoted to the prohibition of child employment, the extension of the minimum age to all types of work, including industrial work, the regulation of light work and the prohibition of the worst forms of child labour. Between 2007 and 2009, subsidiary rules and regulations derived from the main legislation had been developed through a tripartite process. They included a list of hazardous work, rules prescribing light work in which children between 13 and 16 years could be employed and the terms and conditions of that employment. Those texts had been forwarded to the Attorney-General for alignment with other laws before publication. The principles and requirements of the Convention were therefore fully provided for in national law.

Since 2007, other legislative, administrative, institutional and constitutional measures had been taken to ensure the protection of children against child labour. The new Constitution, promulgated in 2010, established specific rights for children, youth, persons with disabilities, minorities and marginalized groups and older members of society. Under article 53(l)(b) of the Constitution, every child had the right to free and compulsory basic education, while article 43(f) set out the right to education. In accordance with the Constitution, section 7(2) of the Children’s Act set out the right of every child to free basic education, which was compulsory. In 2010–11, the draft National Child Labour Policy had been implemented through the National Steering Committee, district child labour committees (now known as county child labour committees) and locational child labour committees, with child labour programmes and activities being carried out under the supervision of the Child Labour Division. The National Child Labour Policy was now before Cabinet for approval. The same period had seen the development and adoption of the Integrated National Social Protection Policy, under which priority was given to the social protection of orphans and vulnerable children, and the Employment Policy, under which measures were fast-tracked for the creation of employment and the promotion of the participation of women and youth to assist in combating child labour. The Basic Education Act 2013, guaranteed the right of every child to free and compulsory basic education and penalized parents who failed to ensure the school attendance of their children. The Ministry of Labour had now for the first time been allocated a budget for child labour activities, both centrally and throughout the country. Child labour had been identified as one of the priorities of the Decent Work Country Programme (DWCP) 2012–15, and was covered by the Medium-Term Plan (2013–17) and the Strategic Plan.

With regard to the specific issues raised by the Committee of Experts, she stated that Kenya had continued its efforts to improve the child labour situation through legislative and constitutional reforms, technical assistance and relevant projects and programmes. These were assisted by continued support from ILO–IPEC, and more recent programmes, including the Strengthening of the National Action Plan (SNAP), Tackling Child Labour Through Education (TACKLE) and Youth Entrepreneurship Facility (YEF). It was the Government’s responsibility to provide free education to all Kenyan children and the Basic Education Act guaranteed free day secondary schooling, free primary education and free early childhood development and education. The rapid assessment survey of child labour in salt mines in Coast Province, conducted by the ILO–IPEC TACKLE programme, had found that child labour had been prevalent prior to 2006, but that children no longer worked in the salt mines. The Ministry of Labour had strengthened labour inspection to capture any child labour activities, not just in Magarini, but nationally. The Government recognized the need, identified in the rapid assessment survey, to carry out a national child labour survey; the intention was to conduct a comprehensive labour force survey with a module on child labour, although it would only be carried out once funds were available. With regard to the age of completion of compulsory schooling, under the Basic Education Act 2013, the education system included eight years of primary education, four years of secondary education and four years of university. Under section 33 of the Act, no child could be denied basic education for lack of proof of age, and discrimination against children seeking admission on any ground including age and the employment of children of compulsory school age in any labour or occupation that prevented them from attending school was prohibited. The Basic Education Act therefore sought to capture the requirements of the Convention and the concerns of the Government that all children, including those who commenced school after the required age or dropped in and out of school, were able to gain access to free and compulsory education, as guaranteed by the Constitution, and were at the same time protected against child labour. The efforts made emphasized the Government’s recognition that compulsory education was one of the most effective means of combating and preventing child labour.

With reference to the determination of hazardous types of work, she indicated that the first list of hazardous work had been finalized in consultation with the social partners in 2008 and forwarded to the Office of the Attorney-General. Soon after that, the new Constitution had resulted in a priority legislative agenda and the requirement for all laws and subsidiary legislation to be aligned with the Constitution. The process of the alignment of labour laws with the Constitution was under way, and it would subsequently be necessary to align the subsidiary regulations. A copy of the list of hazardous work, once adopted, would be forwarded to the ILO. She added that once the regulations to the Employment Act had been adopted, in accordance with the process outlined above, the concerns raised in relation to the admission to hazardous work from the age of 16 and the determination of light work would be addressed. A consultation process was being carried out on the question of granting permits for artistic performances, which would also be covered by regulations. In addition, the Government acknowledged the need for an amendment to address the conflicting age provision of the term “minor” in section 8 of the Industrial Training (Amendment) Act 2011. She reaffirmed the commitment and support of her Government for the application of the standards system to ensure the promotion and achievement of social justice. Within the priorities schedule provided for under the national Constitution, the Government undertook to fully align labour laws and subsidiary regulations with the requirements of the Convention and would provide the necessary texts to the Office. In view of the above, she called her Government for further consideration of the present case by the Committee of Experts to be discontinued.

The Employer members stated that the case concerned a fundamental Convention, ratified long ago (1979), that had been the subject of numerous comments over many years (1995, 1997, 1998, 2001, 2003, 2004, 2006, 2008, 2009, 2010, 2012 and 2013). In recent years, the Government had tried to find solutions, with support from IPEC. Despite that, in its last observation the Committee of Experts had referred to many issues that remained outstanding. With regard to Article 1 of the Convention, it had noted that 1,050 children had been withdrawn from child labour and 350 had been kept in school. The enrolment rate in primary school had risen to 92.5 per cent in 2009. Nevertheless, children were failing to complete the school year and, according to the 2009 census, 4 million children of school age had dropped out of school. With regard to Article 2(3) of the Convention, the Employer members indicated that there had been no progress in its application. There was still a gap between the minimum age for admission to employment (16 years) and the age of completion of compulsory schooling (14 years). No clear solution to the problem had been found. With regard to Article 3(2), concerning the determination of hazardous work for children under 18, although a list had been approved by the National Labour Board, it had yet to be published, despite the technical assistance provided by the Office. Referring to Article 3(3) of the Convention, they pointed out that no progress had been made in issuing regulations in respect of the hours of work and establishments in which children aged at least 16 years could work, including certain types of hazardous work. The light work covered by Article 7 of the Convention had also yet to be determined. Recalling that the Convention was a fundamental one, they urged the Government to bring its legislation into line with the Convention and to request ILO technical assistance if necessary.

The Worker members noted that, once again, the Committee of Experts had found that several provisions of the Convention were not being respected. Firstly, there was a notable lack of reliable data on the number of children enrolled in school, those in a situation of child labour or children who combined school and work. The data that were available were confusing and at times, even contradictory. A 2008 report had put the number of children in work at 756,000, whereas the 2009 national census had shown that nearly 4 million children of school age were not attending school. The net enrolment rates at the primary level had been 83.2 per cent in 2005, 92.5 per cent in 2008 and 96 per cent in 2011, while at the same time other statistics indicated that about 20 per cent of all primary school children did not complete primary school. According to UNESCO data for 2011, among children aged between 5 and 14 years, three out of four attended school, and a third of them were working. While those figures appeared contradictory, they were explained by the fact that one child out of every three combined school and work. Furthermore, university research revealed that 45 per cent of children combined school and work in 2010. In addition, there were no reliable data on child labour by gender or sector, particularly in plantations, domestic work, salt mines, the sale of illegal substances on the streets, and prostitution. In 2012, in Busia County, over 29,000 children were working, nearly half of them in sugar or tea plantations, almost all of whom were AIDS orphans or from broken homes; about 30 per cent were in domestic work; and the rest were street vendors or engaged in drug or arms trafficking. At times, children had even been recruited during elections to disrupt the campaigns of political opponents. The country needed reliable data in order to be able to take useful and effective action against the large number of children who were not enrolled in school. In that regard, it should be noted that the Government had not provided the specific information requested from an October 2012 child labour survey, or the rapid assessment survey on child labour in salt mines in Coast Province. While it was still necessary to analyse the reasons why children were not enrolled in school and ended up in child labour, some of the relevant factors were parental poverty, family situation (deceased or separated parents), and also certainly the cost of education.

Secondly, the Government did not appear to be making efforts to remedy the legal situation. There was a legislative gap between the age of completion of compulsory schooling (14 years) and the minimum age for admission to employment (16 years). The Government planned to remedy the situation by waiving tuition fees for the first two years of secondary school and proposing to extend the age of compulsory school to an age higher than the minimum age for admission to employment (18 years), but neither of those measures had been adopted, despite the fact that the Convention specified that the minimum age for admission to employment should not be lower than the age of compulsory schooling. Moreover, the Government had not yet definitively established the list of types of hazardous work prohibited for children under 18 years, or the regulations concerning the hours of work and establishments in which children aged at least 16 years could work. In addition, the list of light work on which children of 13 years could be employed and the procedure for granting permits allowing children below 16 years of age to take part in artistic activities had not yet been adopted. The Worker members emphasized that the situation had gone on too long, was unacceptable and had fully warranted a double footnote so that it could be discussed by the Conference.

The Worker member of Kenya recalled that although the Government had ratified the Convention voluntarily in 1979, over 30 years later it still had to comply fully with its principles in both law and practice. When the case was last discussed in 2006, the Committee’s conclusions had emphasized the Government’s promises that the concerns raised by the Committee of Experts would be addressed through the adoption of the newly drafted labour laws. The Committee had identified the need for ILO technical assistance, which had been provided. However, eight years later, the Committee of Experts was still raising the same concerns. These concerned, in particular, the high number of children who were not attending school and were involved or at risk of being involved in child labour, with the Government being urged to undertake a child labour survey. In 2006, the Government had undertaken to address the problem of the gap of two years between the age of 14, when free compulsory primary education ended, and the minimum age for admission to employment, which was 16 years. However, seven years later the Government was still making the same promise. Although a list of hazardous work for children under 18 years of age, covering 18 types of hazardous employment, had been determined in 2008 by the Government, the Central Organization of Trade Unions and the Federation of Kenya Employers, it was unacceptable for the Government to now advance the excuse that the list was currently being reviewed. Even though the Government had informed the Committee in 2006 that the Minister responsible for the Children’s Act had issued regulations respecting the hours of work and establishments in which children under the age of 16 years could work, including hazardous types of work, it was once again indicating that the relevant regulations were being reviewed and that a copy would be supplied once they had been adopted. Similarly, despite the promise made in 2006 to issue rules and regulations on light work and hours of work for children under 13 years of age, the Government had now indicated that those rules and regulations were yet to be completed and that the texts on light work in which a child of 13 years and above could be employed were still in the Office of the Attorney-General pending adoption. With regard to measures requiring permits to be issued for children participating in cultural and artistic activities, the Government had once again made its usual statement that the matter had been taken up with the relevant ministries and that the Office would soon be informed of the outcome of the discussions. He therefore called for the Government to be asked to supply full particulars in response to all the points raised by the Committee of Experts. He regretted the Government’s continued inactivity. If the issues were not addressed urgently and decisively, the future of the country could be compromised irreparably through the destruction of future generations. The Government should establish clear short-term deadlines and a roadmap for addressing all the concerns now and in the years to come. Technical assistance would be useful and the Government, in conjunction with the social partners, should also explore the feasibility of opening village polytechnics for primary school pupils who did not go on to secondary school, with the provision of soft loans to help them remain in school until the age of 16, which would also help to address youth employment. These were the issues that the newly elected Government had undertaken to deliver as flagship promises. He therefore called for practical steps to be taken for the elimination of child labour in collaboration with the social partners, instead of the production of statistics as an end in itself.

The Employer member of Kenya observed that since the ratification of the Convention in 1979 many efforts had been made to eliminate child labour, especially in the institutional context, and that the Committee of Experts had noted certain progress. The Government had taken initiatives and there had been a net increase in the number of children attending primary education. However, 20 per cent of all children failed to complete primary education. The Government needed to address that problem rapidly, particularly since access to free and compulsory education was now a constitutional right. The efforts made had been slowed down by the reform process, but she urged the Government to expedite its action on the issue. There had been inordinate delays in addressing the problems identified by the Committee of Experts, including the gap between the ending of compulsory primary education at 14 years and the minimum age for admission to employment at 16 years. She agreed that the minimum age of completion of compulsory schooling should not be lower than the age at which young persons were allowed to start working. She also called on the Government to rapidly complete the process of the adoption of the list of hazardous types of work prohibited for young workers, on which tripartite agreement had been reached, and concerning which the delay was unwarranted. The same applied to the list of light work allowed for young workers, as well as the regulations under the Education Act, which had already been prepared in 2005, according to the Government. The Ministry of Labour should urge those responsible to act quickly. She also supported the idea of issuing permits for children wishing to participate in artistic performances, establishing their hours and conditions of work. She called on the Government to request ILO technical assistance where necessary and indicated that Kenyan employers were willing to work with the Government to address the issue conclusively.

The Worker member of Swaziland stated that over 30 years after the ratification of the Convention, the Government had failed to address the issue adequately, resulting in the worsening and growing incidence of child labour. It was particularly disturbing that since 2005 the only response by the Government to the calls made by the Committee of Experts had been limited to promises, while children continue to be abused and exploited. Although the policy measures adopted seemed impressive, putting them into practice had proved to be a challenge. Serious gaps in implementation remained, which required rapid responses if any meaningful results and changes were to be seen in the near future. There was even a temptation to question the political willingness of the Government to enforce the legal framework. Recalling that the Government had ratified the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), he emphasized the need for the collaboration and engagement of all the social partners for the achievement of the total eradication of child labour in the country. Although the trade unions had repeatedly identified and fought child labour practices, the active and effective participation of the trade unions had largely been excluded from Government responses. The spirit of social dialogue ensured collective responsibility and ownership, not only in policy formulation, but also implementation and enforcement. The Government’s past efforts had failed and there was therefore a need for a new approach to deal with the problem. Each day that passed without clear action to combat the challenge not only diluted the Government’s efforts, but had a residual effect for the future. The social impact of child labour had not only worsened the present fiscal situation, but also the country’s capacity for economic transformation in future. He therefore called for technical support to be provided to the Government within a tripartite framework as a means of finding a lasting solution to the current challenge.

The Government member of Uzbekistan stated that the Government had completed the labour law reform process in 2007 and that five texts had been adopted aligning the labour legislation with international labour standards. The Employment Act contained a chapter on the prohibition of child labour which extended the minimum age provisions to industrial work, regulated light work and prohibited the worst forms of child labour. The 2010 Constitution set out specific rights for children and other vulnerable groups, including the disabled. Over the period 2010–11, the draft National Child Labour Policy had been applied and had been sent to Cabinet for approval. Initiatives had been taken to combat child labour and an institutional framework had been established under the National Steering Committee, including local child labour committees. Efforts had continued to align laws and regulations with the provisions set out in the new Constitution and reform measures were being adopted to ensure that all children up to the age of 18 would have access to free education. The rapid assessment survey of child labour in the salt mines in Coast Province had shown that children had worked in the mines up to 2006, but that was no longer the case. Improvements had also been made in the labour inspection system to detect cases of child labour and it was planned to include a module on child labour in the labour force survey. All of those actions emphasized the Government’s commitment to take action to eliminate child labour. The Committee should take into account the Government’s resolve to comply with the Convention and should call for further consideration of the case by the Committee of Experts to be discontinued.

The Government member of Zimbabwe expressed appreciation for the efforts made by the Government of Kenya to align the national legislation with the Convention, as well as the inclusion in the new Constitution of issues related to child labour and the employment of young persons. Those were positive developments which would help the Government and the social partners to address any remaining child labour issues.

The Worker member of Nigeria, recalling that child labour was a threat to society, observed that in Kenya many urban and rural children were not in classrooms, but rather working under harsh conditions. In the context of the lack of relevant legislation, the incidence of under-age persons engaged in paid employment continued to rise. In essence, legal and policy gaps and inadequate administrative action, especially enforcement measures, had exacerbated the plight of child workers. The duty to stand up and act for the protection of children, their development and future was a collective one, and it was therefore particularly regrettable to see child prostitution in Nairobi, Kisumu and coastal areas, in the context of increased tourism. Although the Government had ratified the United Nations Convention on the Rights of the Child (CRC) 23 years ago, the Education For All (EFA) objective had not yet been met and a report of a non-governmental organization concerning the application of the CRC showed that 46 per cent of school children (5–14 years) were out of school, largely due to the 65 per cent contribution that parents had to make to school costs. Although the report of the Committee of Experts noted the indication by the ILO–IPEC TACKLE project that net enrolment rates at the primary level had increased from 83.2 per cent in 2005 to 92.5 per cent in 2008, those percentages clouded the urgency of the situation. The Government bore the responsibility to drive effective social dialogue at the national level, and needed to mobilize and engage the other social partners, as well as other segments of civil society in the fight to eliminate child labour. He therefore urged the Government to enact the Children’s Bill and implement the Education Act effectively, while also addressing the enforcement of regulations aggressively.

The Government member of Zambia welcomed the efforts made by the Government to address the outstanding issues relating to the minimum age and the right to education. Noting the legislative reforms and the legal framework developed to address those challenges; the Government was wished success with their effective implementation.

The Government representative thanked all those who had contributed to the discussion and who had recognized the efforts made in her country to combat child labour, with particular reference to the comprehensive legislative and constitutional reform measures. The Government was seeking to increase the enrolment and retention of children in primary and secondary school, for which purpose constitutional and legislative measures had been adopted, free primary and secondary education was being provided and initiatives were being taken to combat child labour. The Government also reiterated its recognition of the need for high-quality data on the child labour situation in the country and its commitment to including a child labour module in the labour force survey, subject to the availability of resources. It also reaffirmed that copies of the list of hazardous types of work would be provided to the Office once it had been reviewed and adopted, as would the other subsidiary regulations that were currently being reviewed. The delay in the adoption process had been due to the need to give priority to the constitutional reforms and to the other legislation required to address issues arising in relation to the violence that had followed the 2008 election. The Government was committed to aligning the legislation and the subsidiary regulations with the Constitution before their final adoption. With regard to the gap between the age of completion of compulsory primary school and the age of admission to employment, she emphasized that the Government was grappling with the need to ensure free and compulsory schooling for all children under 18 years of age, while also complying with the requirements of the Convention. It would request technical assistance to address the related issues. With regard to artistic performances, the Government would continue the consultation process with a view to achieving an amicable settlement on the issue, which would then be included in the regulations to be adopted in accordance with the procedure under the national Constitution. She reaffirmed the Government’s commitment to combat child labour and to comply with the requirements of the Convention.

The Worker members noted that child labour was a major challenge for development in Kenya, where an estimated 4 million children of school age were not in school, many of whom continued to work despite the hazardous conditions. Some progress had been made in education and literacy and the Government had made an effort to ensure access to free primary schooling; however, a million children were still outside the education system. The county programmes and IPEC had managed to remove a limited number of children from work and prevent others from dropping out of school in order to work. In light of this progress, modest though it was, the question arose as to why the Government had not accompanied this progress by bringing the national legislation into line with the Convention. The Government needed to have a credible plan for the progressive elimination of child labour. For that, it needed to: (i) establish a reliable database on children in school and/or at work; (ii) undertake a detailed analysis of the reasons why so many children worked when they should be enrolled in school; (iii) bring the legislation without delay into line with the provisions of the Convention respecting the minimum age for admission to work, the age of completion of compulsory education and the list of hazardous types of work prohibited for children under 18 years of age; and (iv) with the full involvement of the workers’ organizations, establish and adopt a five-year plan of action including targeted annual objectives, a school enrolment policy and measures, including dissuasive sanctions, to guarantee the effective application of the Convention. They urged the Government to specify its intentions as soon as possible and to accept a direct contacts mission on these matters.

The Employer members reiterated that it was now some 30 years since the Convention had been ratified, during which time the Committee of Experts had made numerous comments. The time had come for concrete results in terms of legislation, and surveys should be conducted in order to ascertain the magnitude of the problem in practice. The forthcoming session of this Committee needed to be in a position to examine updated information on specific legislative measures. The Employer members were not opposed to a direct contacts mission, as requested by the Worker members.

Conclusions

The Committee took note of the oral information provided by the Government representative and the discussion that followed relating to various issues, including the high number of children who were not attending school and who were involved in child labour, the age of completion of compulsory schooling, and the lack of legislation determining hazardous work, and regulating light work and artistic performances.

The Committee noted the Government’s indication that it was taking several measures to keep children in school and that it was committed to the elimination of child labour in the country. The Committee further took note of the Government’s commitment to implement the Convention through various measures, including the ILO–IPEC project to tackle child labour through education (TACKLE) and the ILO–IPEC project to support the implementation of the National Action Plan (SNAP). The Committee also noted the Government’s indication that it intended to conduct a comprehensive labour force survey with a module on child labour.

The Committee noted that several draft laws referred to by the Committee of Experts in its observations were still due for submission to Parliament for debate and adoption. While noting the various measures taken by the Government to combat child labour, the Committee expressed its deep concern regarding the high number of children who were not attending school and were involved in child labour, including hazardous work, in Kenya. It urged the Government to strengthen its efforts to combat child labour in the country with a view to eliminating it progressively within a defined time frame. Moreover, in light of the contradictory data on the number of children working under the minimum age, the Committee urged the Government to undertake a national child labour survey in the very near future.

Noting that the Education Act, which was adopted in January 2013, extended the compulsory schooling age up to 18 years, which was higher than the minimum age for admission to work (16 years), the Committee recalled that the Convention required member States to set a minimum age for work that was not less than the age of completion of compulsory schooling, and further emphasized the desirability of linking these two ages, as advocated by Minimum Age Recommendation, 1973 (No. 146).

The Committee noted the Government’s indication that it intended to prioritize and expedite the adoption of the necessary legislation to address the existing discrepancies with the provisions of the Convention. It recalled that this Convention had been ratified more than 30 years ago, that this case had been discussed by the Conference at its 95th Session in June 2006, and that the Government had expressed its intention to adopt the necessary legislation on children and child labour to conform to the provisions of the Convention. The Committee shared the serious concern expressed by several speakers that the review of the draft laws in question, which had been undertaken in consultation with the social partners and with ILO technical assistance, was completed in April 2004, but had yet to be adopted by Parliament. The Committee strongly urged the Government to ensure the adoption, in the very near future, of the necessary provisions to address all the issues of non-compliance with the Convention, including the determination of the types of hazardous work to be prohibited for children under 18 years of age, the regulation of periods of work and establishments where children aged at least 16 years may perform hazardous work, and the regulation of light work activities and of artistic performances.

The Committee requested the Government to accept a direct contacts mission to ensure the full and effective application of this fundamental Convention including the adoption of a time-bound action plan in this regard. It requested the Government to include in its report to the Committee of Experts, for examination at its next session in 2013, complete information regarding all issues raised by this Committee and the Committee of Experts. The Committee expressed the hope that it would be able to note tangible progress in the very near future.

Individual Case (CAS) - Discussion: 2006, Publication: 95th ILC session (2006)

The Government communicated the following written information.

The Government had previously given responses to the Committee of Experts and is happy to note that they have been broadly acknowledged in the current Experts' report as indicative of progress. Kenya wishes to confirm that it is fully aware, not only of our obligation in accurately reporting on progress made in this endeavour, but also in making genuine progress that represents concrete, sincere and well-intentioned reforms to our labour statutes. Kenya finds itself in a situation that calls for carrying out extensive revision of laws that have been in existence for many years; most of which are a carry-over from the colonial administration.

It is in this regard that Kenya would like to thank the ILO for responding to our request for technical assistance to carry out a total overhaul of our labour laws, as well as other Governments including the United States, Netherlands and Canada who, through the ILO action programmes, have provided invaluable technical assistance which has fed into the review process.

It is noteworthy that the achievements made so far have been possible due to the cordial tripartite relations with the social partners: the Central Organization of Trade Unions (COTU-K) and the Federation of Kenya Employers (FKE).

Our comprehensive labour law review process was completed in April 2004 and the draft bills are due for submission to Parliament for debate and their enactment into law.

As pointed out in the report of Experts, the proposed bills adequately cover the concerns raised in Article 2(1) and Article 7(1) of the Convention. In view of the fact that other requested information on the draft bills relates to subsidiary legislation, rules and regulations, which are derived from the main laws, while such regulations have already been drafted, these will be made available once the draft bills are enacted into law. This will also address concerns raised under Article 2(3), Article 3(2), Article 3(3), Article 7(3) and Article 8.

The Industrial Training Act, whose concerns are raised under Article 6, is being reviewed, and we assure the Committee of Experts that once this is finalized the relevant copies will be availed immediately.

As pertains to the legislation on age for completion of compulsory education, the Government, in another exercise to review the Education Act, has appointed a committee to make recommendations on, among others, the age of completion of compulsory schooling, which will be harmonized with the requirements of the Convention and hence eliminate discrepancies pointed out by the Experts.

Besides the proposed amendments in the laws, the Government continues to intensify programmes aimed at eliminating child labour in the country with the help of the ILO/IPEC and other supporting organizations. The time-bound programme (TBP) on elimination of child labour, which is ongoing, addresses child labour and all activities and programmes tailored to be supportive of the implementation of Convention No. 182. We would however appreciate it if we receive further technical assistance in the implementation of Convention No. 138.

In addition, before the Committee, a Government representative took the opportunity to share Kenya's experience on labour law reform with other member States finding themselves in a similar situation. She indicated that her Government was fully aware not only of its obligation to accurately report on the progress made with regard to the issues raised by the Committee of Experts, but most importantly of its obligation to make genuine progress through a concrete and well-intentioned labour law reform. She expressed her appreciation to the Office and to the Governments of the United States, the Netherlands and Canada for providing invaluable technical assistance in the course of the review process. She thanked the Central Organisation of Trade Unions and the Federation of Kenya Employers for their contribution to the labour law review process, which had been completed in April 2004. The speaker maintained that the draft Bill, which was currently due to be submitted to the Parliament for adoption, addressed the points made by the Committee of Experts under Articles 2(1) and 7(1) of Convention No. 138. As to the concerns raised by the Committee regarding Articles 2(3), 3(2), 3(3), 7(3) and 8, the speaker informed the Committee that these were covered by subsidiary legislation, namely draft rules and regulations, which would be enacted subsequently to the main Act. Similarly, the Industrial Training Act that raised issues under Article 6 of the Convention was being reviewed and would be made immediately available once finalized. Turning to the question of the age for completion of compulsory education, the speaker stated that her Government had appointed a committee to examine the issue and make recommendations with a view to harmonizing national legislation with the standards of Convention No. 138. She emphasized her Government's resolve and commitment to comply with the requirements of the Convention just as it had done with Convention No. 182 on the Worst Forms of Child Labour. With a view to protecting young persons, which was a key objective for the Government, programmes aimed at eliminating child labour such as the time-bound programme, had been intensified. In closing, the speaker highlighted the importance of the support offered by the Office through the International Programme for the Elimination of Child Labour (IPEC) and expressed her Government's wish to receive further technical assistance in the implementation of the Convention.

The Worker members were astonished that the Government replied to the observations of the Committee of Experts with yet another promise that copies of requested legislation would be submitted. Instead of having provided an explanation of obstacles and difficulties encountered that would explain the delay, the Government seemed to congratulate itself for progress achieved without any concrete proof. Indeed this was only self-proclaimed progress. Already during previous discussions on this case in 2001 and 2003, the Government had undertaken to amend or repeal the legal texts to ensure the full application of a number of Articles of the Convention, particularly with respect to: the limits of the scope of application of certain texts that were contrary to Article 2(1); unpaid work by children in family agricultural activities and business enterprises; the age of completion of compulsory schooling; the determination of hazardous work; the regulation of professional training and apprenticeship; the age for admission to hazardous work and its definition; and the participation in artistic performances. Regarding all these points, the Government referred to "work in progress" or "planned for the future". This was not good enough to constitute a case of progress. The Worker members hoped that the promises would be kept and that the legal texts would be promulgated in the near future.

The Employer members recalled that upon ratification of Convention No. 138, Kenya had undertaken to pursue a national policy designed to ensure the effective abolition of child labour and to progressively raise the minimum age for admission to employment to a level consistent with the fullest physical and mental development of young persons. In their view, the main issue was not that Kenya had not designed a national policy, since it had implemented the Employment Act of 1976 and that of 1977 as well as the most recent Law of 2001, but rather, that in its last report, the Committee of Experts had highlighted ten separate areas as opposed to the six highlighted in its 2003 report. This led the Employer members to believe that the situation might have deteriorated and that there was a lack of momentum on the part of the Government to comply with Convention No. 138. The case at hand was serious because it involved a violation of fundamental human rights. At the same time, the absence of sufficient information concerning what was happening on the ground hampered the Committee's work. According to the information recently provided by the Government, child labour affected 1.9 million children between 5 and 17. Only 3.2 per cent of these children attended a secondary school education while 12.7 per cent had no formal schooling at all. The Employer members maintained that although the Kenyan Government had taken steps to improve the situation of children by providing free primary-school education, implementing programmes to feed children at school, reaching children in remote areas and discouraging the practice of female genital mutilation, there was still much to be done and much to be concerned about. Turning to the specific points raised by the Committee of Experts, they requested the Government to provide concrete information on the timetable for the adoption of the amended legislation that extended the application of the minimum age for admission to employment to all sectors of the economy rather than just industrial undertakings, as well as that for the adoption of legislation that protected children engaged in unpaid work. The Government should also submit the text that fixed the age of completion of compulsory schooling at 16, the draft list of hazardous work, which it developed in consultation with the social partners as well as the text of the regulations issued by the Minister concerning the periods of work and establishments where children under 16 years of age could work. Furthermore, the Employer members requested the Government to set a timetable for the adoption of amendments concerning the minimum age for entry into apprenticeship and encouraged the Government to seek technical assistance with a view to amending the legislation on the minimum age for the entry of children into light work, not harmful for their health or development. They did not doubt the Government's will to eradicate child labour but rather its resolve to make the necessary legislative changes to comply with the Convention. Given the time that had elapsed since 2003, they invited the Government to commit itself to making a strong and sustained effort to implement the Convention and to be transparent about the difficulties involved in this undertaking.

The Worker member of Kenya underlined the need for urgent measures to address the issues highlighted by the Committee of Experts and expressed his concern about the timetable for the adoption of the necessary legislative amendments. The questions raised under Article 2(1) of the Convention, namely the limitation of the prohibition to employ children in industrial undertakings and the lack of protection of children engaged in unpaid work, needed to be addressed urgently. On the minimum age for completion of compulsory education, which under the Convention was set at 16 years of age, the speaker indicated that in Kenya compulsory schooling only covered the ages from 6 to 14. He maintained that the labour laws that were drafted in 2004 addressed the question of determining hazardous types of work for children as well as that of admission of children to light work. However, these laws had not yet been enacted by Parliament. The Government had also failed to submit the text of the regulation on periods of working and the establishments where children under 16 could be legally employed. As to the minimum age for entering into an apprenticeship, the Government had not yet taken steps to bring national laws in line with the Convention. The same applied to the question of regulating the conditions under which children could be allowed to participate in artistic performances. Finally, the Government had also failed to provide the Committee of Experts with statistical data on employment of children and inspection reports due to the lack of properly functioning labour inspection services. The speaker acknowledged that the draft bill, which had been prepared with ILO technical assistance and consultation with the social partners, addressed a number of important issues. The problem was that this draft bill had not yet been enacted by Parliament, as a result of which the lives and future of millions of Kenyan children were irreparably damaged. The speaker urged the Committee to be firm with Kenya in demanding a time frame for the enactment of the labour laws that would help address some of the problems the country was facing.

The Government member of Namibia expressed his delegation's appreciation for the information the Government had provided to the Committee. He was happy to note that the legislative amendment process had been carried out with the participation of workers and employers. He wished to recognize that the Government of Kenya had made significant progress in bringing its legislation into line with the provisions of the Convention and encouraged the Government to continue its work.

The Worker member of Senegal stated that the Committee had already in 2003 examined this case of both serious and repeated violations of Convention No. 138 and that the Government had promised to take suitable action in order to eradicate the curse of child labour. The glimmer of hope brought by the ratification of Convention No. 182, being complementary to Convention No. 138, never came true. The situation had not progressed and the requested measures were never taken. The Government repeatedly stated that measures would shortly be taken but the Committee was tired of waiting. This attitude encouraged unscrupulous employers to continue exploiting children, particularly in the agricultural sector, where there were serious risks. The same applied for children engaged in domestic work. The legislation was not in conformity with either the spirit or the letter of the Convention, be it in the unjustifiably narrow scope of application of the legislation, or with respect to the determination of the list of hazardous work, which had still to be communicated. The extent of the points raised by the Committee of Experts showed the failings of the Government that had remained deaf to the appeals of this Committee. The promises of the Government should be firm since a grace period had already been granted, but time was now running out.

The Government member of Nigeria, speaking on behalf of the Africa group, called on member States to carry out their obligations regarding the Conventions they had ratified. The rights of the social partners had to be protected and social justice had to be maintained. The Africa group associated itself with the efforts made by Kenya to comply with the provisions of ratified Conventions. She recalled that the country had requested technical assistance for the review of its labour laws, which had been provided by the ILO, and that the review process had been completed in 2004. The bills which were drafted since took into account the concerns of the Committee of Experts. However, she requested the ILO to favourably consider the request of the Kenyan Government for further technical assistance.

The Worker member of Swaziland concurred with statement of the Worker members. He reminded the Government that ratified Conventions had to be enforced, irrespective of the rhetoric on political will. Since 2001, the Government was promising the Committee to change the legislation, but despite technical assistance from the ILO, the new legislation was still not enacted. The Government should be called upon to have the long promised reviewed legislation promulgated, and to submit a report before the end of this year. Its failure to provide even basic information such as statistics on boys and girls, their ages, geographical distribution and the sectors concerned, showed the lack of commitment on the part of the Government in addressing the issues raised by this Committee, and by the Committee of Experts. Again, the speaker urged the Government to respect fully the commitments arising out of the ratification of ILO Conventions.

The Government member of Zimbabwe said that the ongoing labour law reforms in Kenya which were taking issues of child labour into consideration should be commended. He found it unfair that a country that had shown such commitment to reforming its labour laws with a view to bringing them into line with the obligations of the Convention should be listed at this session. Legislative reform took considerable time and Kenya was positively moving towards these reforms.

The Government representative thanked the speakers for their comments and apologized if her statement had not fully answered all questions. She stressed that the Government could not impose a timetable on the Parliament for examining bills, but indicated that her Government would try to put pressure on the legislature in order to get the amended labour laws enacted. She recalled that the Government that had been elected in 2003 had made the welfare of children a priority and had provided primary education for all. While progress had been made in this case, she stated that her Government was still far from satisfied with the status of children in the country. She pledged that next year Kenya would no longer figure on the list of cases, at least not with regard to the issues at hand.

The Employer members expressed their regret about the fact that, although the legislative review had been completed in 2004, the draft legislation had not since been submitted to Parliament for adoption. The Government had stated that the adoption of the Bill would be subject to the Parliament's own procedures and schedule. This led the Employer members to believe that the reform of the labour laws was not a priority for the Government. It followed from the discussion that the Government was very clear about the importance of the issues discussed. They acknowledged and welcomed the Government's request for technical assistance, emphasizing that good intentions were always welcome. They asserted that it was high time for the Government to demonstrate that their trust had not been mistaken and invited the Committee to consider whether it was satisfied that progress would be made.

The Worker members pointed out that the examined failings in the application were serious. The Government recognized the problems but fell back on promises already made. The Government should therefore take immediate action and adopt the laws and regulations whose promulgation had been announced in order to assure conformity with the Convention. It would also be suitable for the Government to submit a detailed report on the progress achieved on all points raised in order for dialogue to be pursued.

The Committee noted the written and oral information provided by the Government representative and the discussion that ensued. The Committee noted the information contained in the report of the Committee of Experts relating to various issues including the minimum age for admission to employment or work in all sectors, the definition of hazardous work as well as the regulation of light work.

In this regard, the Committee noted the Government's indication that draft laws referred to by the Committee of Experts in its observations were due for submission to Parliament for debate and adoption. It also noted that a Committee had been set up recently by the Government to review the Education Act with a view to modifying, inter alia, the age of completion of compulsory schooling. The Committee further took note of the Government's commitment to implement the Convention through various measures including the adoption of a time-bound programme (TBP) with ILO/IPEC that was ongoing. Finally, the Committee took note of the Government's request for technical assistance.

While noting the Government's indication that it intended to adopt legislation soon dealing with children and child labour to conform to the provisions of Convention No. 138, the Committee recalled that this Convention had been ratified by Kenya more than 25 years ago. The Committee further noted with concern that the review of the draft laws in question, which had been undertaken in consultation with the social partners and with ILO technical assistance, had already been completed in April 2004 but not yet adopted by Parliament. The Committee, therefore, firmly hoped that the necessary provisions would soon be adopted to address all the issues raised by the Committee of Experts, including the extension of the minimum age to all types of work, in addition to industrial work, the determination of the types of hazardous work to be prohibited for children under 18 years of age, and the regulation of light work. Considering that compulsory education was one of the most effective means of combating and preventing child labour, the Committee urged the Government to ensure that legislation addressing the gap between the age of completion of compulsory schooling and the minimum age for admission to employment or work would be adopted shortly. The Committee took note of the Government's request for ILO technical assistance and asked it to avail itself of such assistance with the view to giving effect to the Convention in law and practice as a matter of urgency. The Committee firmly hoped that the Government would provide detailed information, in its next report to the Committee of Experts, on progress made in complying with this fundamental Convention in law and in practice.

Individual Case (CAS) - Discussion: 2003, Publication: 91st ILC session (2003)

A Government representative stated that his Government had taken careful note of the various comments made by the Committee of Experts and had the following points to raise concerning these comments. The Children Act, 2001, which established safeguards for the rights and welfare of the child, had received Presidential assent in December 2001, six months after the 89th Session of the Conference (June 2001). The primary purpose of this Act was threefold. First, to make provision for parental responsibility, fostering, adoption, custody, maintenance, guardianship, care and protection of children. Second, to make provision for the administration of children's institutions. Third, to give effect to the principles of the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. A copy of the Children Act, which had come into effect on 1 March 2002, had been supplied to the Office.

The implementation of truly free and compulsory primary education for all children of school age, with effect from January 2003, was one of the most important developments in the area of protection of children. The new policy on free primary education had been adopted in fulfilment of an electoral commitment made by the new Government elected in December 2002. Under this electoral commitment, the Government had undertaken to completely eliminate all forms of payments, including any hidden levies, that could hinder the enjoyment of free primary education by all children. Consequently, of the 9.2 million school-age children, 7.5 million were currently enrolled, up from 5.9 million before the programme. In short, between January and May 2003, a total of 1.6 million children who would otherwise have been engaged in child labour had now been enrolled in school. The Government was currently engaged in the massive construction of classrooms and the provision of other teaching facilities in order to accommodate the unprecedented large influx of children. In this respect, he acknowledged with appreciation the generous donor assistance received from UNICEF, the European Union, the United Kingdom and the United States.

Another area of progress recorded since January 2003 was the rehabilitation of street children in all urban centres in Kenya. These children, especially between the ages of 16 and 18 years, had been placed into rehabilitation and vocational training centres. The programme was ongoing and already a total of 1,813 former street children had been admitted into the National Youth Service, with others to follow in due course. The Government would continue to update the Office on the implementation of this programme.

With regard to the minimum age for admission to employment, he said that the revision of the country's labour laws, including both the Employment Act (Chapter 226) and the Employment Act (Children) Rules of 1977, was being undertaken by a task force with the assistance of ILO experts in order to bring the legislation into conformity with the various Conventions ratified by Kenya. The task force would complete its work by August 2003. In this framework, the minimum age for employment would remain at 16 years, instead of 15 years as had been initially proposed. In this respect, the Government intended to develop comprehensive legislation which would address the protection of children against all forms of economic exploitation and any work that was likely to be hazardous or to interfere with their development in all economic sectors, in accordance with Convention No. 182, which had also been ratified by Kenya. The task force was working on harmonizing the proposed legislation with the relevant provisions of Convention No. 182.

With regard to the preparation by the Ministry of Education of draft legislation to make primary education compulsory, the Government had, in addition to the new policy mentioned earlier, identified and was in the process of addressing the following major factors affecting access and retention of children in school: the continued prevalence of poverty in many parts of Kenya, as manifested in the lack of food and finances in many schools; gender bias that had continued to lead to preference for boys' access to education as opposed to girls; teenage pregnancies which had continued to contribute to increased school drop-out by girls; prohibitive distances to schools, particularly among nomadic communities; the occupation of children, for example in coffee picking, tourist activities and livestock herding; unfavourable geographic and climatic conditions in certain regions; excessively heavy curricula coupled with inadequate implementation; cultural practices, such as early marriages; and inadequate emphasis on the identification and education of disabled children. For the sake of further clarity, he emphasized that the age of completion of free and compulsory schooling remained 16 years.

The Government acknowledged that many children continued to work in family agricultural activities and business enterprises during school holidays and after school without pay. However, he said that this was regarded as part of their upbringing and integration into society and did not interfere with their education or moral upbringing. Nevertheless, the Government acknowledged that, due to the poverty prevailing in some parts of Kenya, especially in the arid and semi-arid areas, unfortunate situations did occur where children of school age were compelled by their parents or their own economic situation, for example due to HIV/AIDS, to work for their survival. In this connection, he indicated that, in the framework of the ongoing review of the labour legislation, the Government intended to amend section 10(5) of the Children Act, 2001, so as to bring it into line with the provisions of the Convention.

He added that the Government had taken careful note of the comments made by the Committee of Experts regarding the possibility of the employment of children with the prior written permission of an authorized officer and was taking the necessary measures in this respect. It had also taken careful note of the concerns expressed with regard to the performance of light work by children and would take the relevant necessary measures in the framework of the ongoing revision of the labour legislation. With respect to the comments made by the Committee of Experts regarding the definition of hazardous work to be prohibited for young persons under 18 years of age, the Government was committed to taking the necessary measures, given that it had also ratified Convention No. 182, in consultation with the social partners and in the framework of the ongoing review of the country's labour legislation. Concerning the comments made by the Committee of Experts on the information contained in the 1998/99 Child Labour Survey and the draft document entitled "Child labour policy", it should be noted that a new major development had occurred in this area following the introduction of truly free primary education, as a result of which 1.6 million additional children had been enrolled in primary schools throughout the country. To conclude, he reaffirmed the Government's commitment to achieving the application of Convention No. 138 in practice and stated that he looked forward to a constructive dialogue in the Conference Committee.

The Employer members thanked the Government representative for the information provided and took note of the heavy emphasis that he had placed on Convention No. 182, which was nevertheless not the subject of the discussion. However, one aspect of the case that did overlap with the provisions of Convention No. 182 was hazardous work. In this context, it would have been helpful if the Government could have explained in writing to the ILO how the Children Act, 2001, related to Convention No. 182. They emphasized that Convention No. 138 was perhaps the most technical and detailed of the fundamental Conventions. The Committee of Experts had identified six areas in which the national legislation fell short of the provisions of the Convention. The Government had indicated to the Conference Committee that it was aware of these areas, but had not provided any information on any action that was being taken to address these issues or on when draft legislation would be forthcoming in order to bring the law into line with the Convention. This issue had already been discussed the previous year. The task of bringing the legislation into line with the Convention was not easy, and ILO assistance might be useful in this respect, especially since the way in which the Government had addressed the comments made by the Committee of Experts, as a six point list, seemed to indicate that it did not know exactly what action to take to resolve the problems. With respect to compulsory education, the Employer members requested clarification on the gap which seemed to exist between the age at which compulsory education ended (which had been understood by the Employers to be 13 years) and the minimum age for admission to employment (16 years).

With regard to the six points raised by the Committee of Experts, they noted, first, that the extension of the minimum age for admission to employment beyond industrial enterprises was an important point, as the legal gap in this area left a large potential workforce of children without legislative protection. In this respect, they noted that although compulsory primary education was not mentioned explicitly in the Convention, it was inextricably entwined with the provisions on minimum age and needed to be addressed in order to comply fully with the Convention. Secondly, with regard to the definition in the national legislation of child labour as consisting of labour in exchange for payment, the law did not provide effective protection given that 80 per cent of children were engaged in unpaid work. There was a need to adopt measures in order to secure for these children the protection afforded by the Convention. Thirdly, with regard to permits allowing the employment of children, this issue raised three complex questions: child labour under the age of 13 years, light work and hazardous work. The Employer members suggested that the Government seek ILO assistance to address these overlapping issues. The question of light work in particular was a complicated issue which needed to be examined further in the light of the inconsistencies noted by the Committee of Experts between the various legislative provisions. With regard to hazardous employment, although the Children Act, 2001, provided for the protection of every child from hazardous work, the Government had still not adopted the implementing regulations to define the types of hazardous employment covered by this provision. Thus, although there was an appearance of protection in law, the necessary regulatory regime had not been established in order to allow such protection to be implemented. The Employer members welcomed the expression of goodwill by the Government, but noted that there was a need to move forward in order to produce concrete results. They suggested that ILO technical assistance might be necessary in order to adopt the necessary legislation and take measures for its implementation.

The Worker members thanked the Government representative for the information provided, which showed that the new Government intended to make real progress. They also welcomed the assurances given about the Government's commitment to provide basic education, which was essential for the effective elimination of child labour. They also welcomed the wide distribution of the recommendations of the Meeting of Experts from the African Region on Labour Inspection and Child Labour held in Harare in September 2001 as they were particularly relevant to the discussion. They recalled that in the early 1990s the Government, in tripartite collaboration with the social partners and with the support of the ILO, had developed one of the most successful labour inspection services in Africa. From 1990 to 1995, the number of inspections carried out had arisen from 3,700 per annum (performed by 220 inspectors) to 26,800 (by 180 inspectors). However, much of this great progress had been lost in recent years during the corrupt regime of the previous administration. Moreover, IMF and World Bank structural adjustment policies had imposed cuts in public expenditure and the number of labour and factory inspectors had fallen by more than one-third, despite an increase in the working population and the number of enterprises. Although the remaining inspectors had continued to perform well until the end of the 1990s, the dramatic explosion of corruption under the last regime had destroyed these gains, leading to an increase in the worst forms of child labour and the advent of some forms of child labour, such as stone crushing.

The new Government deserved an advance of trust and it should be expected to fulfil its obligations and demonstrate transparency in the struggle against child labour. This required clear minimum age legislation, education laws that were consistent with it and a labour inspectorate restored to its former state. Above all, it required a re-invigoration of the tripartite alliance and social dialogue that would provide the vehicle for implementing the law. Implementation was the key and the ILO should support the new Government and the social partners in that endeavour. The Bretton Woods institutions should cease to undermine Kenya's public services, in accordance with the Worst Forms of Child Labour Recommendation, 1999 (No. 190) which called upon international institutions to support the aims of Convention No. 182, particularly since Kenya had ratified both Conventions Nos. 182 and 138, which were inextricably linked.

There was no doubt that the Government had the ability, the opportunity and political will to tackle this significant problem. That made it all the more puzzling that the Government had still not adopted the legislative amendments requested by the Committee of Experts for so many years. The Government had made progress with the adoption of the Children Act in 2001 and the Worker members had welcomed, in the previous discussion of this case, its decision not to pursue the legislative amendment to section 2 of the Employment Act, 1976, in order to reduce the minimum age, with the result that the minimum age for admission to employment or work was maintained at 16 years. However, the fundamental problem persisted. The Government had assured this Committee in 2001 that it would extend the legislation to other sectors of the economy by December 2002 in order to address the fact that section 25(1) of the Employment Act limited to industrial enterprises the minimum age for admission to employment. Section 3(1) of the Employment (Children) Rules, 1977, which allowed the employment of children with no apparent minimum age restrictions pursuant to a written permission by an authorized officer, were incompatible with Articles 2 and 7 of the Convention. No permit should be issued if it allowed employment or work: firstly, by any person under the age of 13 years irrespective of the type of work; secondly, for persons between 13 and 15 years of age, unless this was for light work (the Government not having availed itself of the developing country derogations of 12 and 14 as contained in Article 2(4) and Article 7(4)); and thirdly, for persons between 16 and 18 years of age in any hazardous works. The Worker members therefore welcomed the assurances of the Government that this matter would be dealt with. They added, in this connection, that it was also necessary to dispel some of the unhelpful blurring of the Convention's minimum age requirements which were the currency of certain campaigners who seemed determined to explain why child labour could not be eliminated and who, at their most extreme, talked about "children's right to work", and who also raised the issue of the lack of high-quality education as a reason for not removing children from work and into schools. The Worker members emphasized that over 3 million children aged 6 to 14 were working in Kenya. At least 1.3 million did not attend school. Increasing school enrolment itself would strengthen the campaign for quality education, but suggesting that children were better off at work than learning at least literacy and numeracy could hardly be construed as a path to empowerment. The ILO had been given the responsibility to set and supervise international labour standards on child labour, the terms of which were firmly supported by the Worker members. However, IPEC officers in the field were often forced to deal with such mischievous misinterpretations of the Conventions, which could confuse ILO constituents and undermine the basis for tripartite collaboration in the struggle against child labour.

The new Government had demonstrated its political will by adopting legislation to make primary education compulsory. The Worker members welcomed this absolutely essential measure to combat child labour. However, the Children Act, 2001, did not specify the age at which compulsory school ceased. The Government's Child Labour Report, published in 2001, indicated that compulsory education lasted from 6 to 13 years of age. Although this fitted with the definition of basic education agreed upon in the debate on Convention No. 182, there still remained a discrepancy between the age of completion of compulsory schooling (13 or 14) and the minimum age for admission to employment or work (16 years). They hoped that the Government would clarify this matter in the new legislation. Section 10(5) of the Children Act, 2001, which defined child labour as any situation in which a child provided labour in exchange for payment was also inadequate in light of types of child labour such as forced labour and in view of the findings of the Child Labour Report, according to which nearly 79 per cent of children who worked did so in family agricultural undertakings and were not paid. This meant that the majority of children working in Kenya were excluded both from the Children Act, 2001, which covered all sectors but not all types of employment relationship, and the Employment Act, 1976, which covered only industrial undertakings. Furthermore, the Children Act, 2001, did not deal with hazardous work. In a country where the majority of children worked in agriculture - including commercial agriculture both in large undertakings and in smallholdings - fishing, construction, domestic service and the urban informal sector, the restriction of the coverage of the legislation to paid work in industry excluded most of Kenya's child labourers from the protection of the law. Given that Kenya had not availed itself of any of the exemptions envisaged in the Convention, given that the Convention's fundamental purpose was the effective abolition of child labour and given that the Convention was a fundamental human rights standard promoted for universal ratification, the principles of which were also binding by virtue of the 1998 Declaration on Fundamental Principles and Rights at Work, such minimal application greatly diverged from the obligations incumbent on the Government. The Worker members therefore hoped that the drafting of comprehensive legislation on child labour would proceed rapidly and would cover all sectors. They also agreed with the statement made by the Employer members that ILO assistance in this process should be sought and provided.

Finally, with regard to the definition of hazardous work, the Government had admitted the need for such a determination as long ago as 1990 and should now proceed expeditiously with that definition on the basis of tripartite consultation. As to the argument that non-commercial family agriculture was exempt from the Convention, they recalled that agriculture was one of the world's most hazardous occupations, whether on plantations or in family farms, and in Kenya many family farms were locked into the commercial agricultural market. There were, for example, some 400,000 small tea growers in the country. According to a recent report by Ms Sonia Rosen, children working in coffee, tea and sisal plantations often woke up before sunrise in order to walk, sometimes long distances, from their homes to the plantations. They had no breaks, were not allowed to talk and rarely had time to eat. The work was physically demanding, requiring bending, kneeling, climbing ladders and carrying bags or buckets. Children also weeded and cultivated the soil, fixed irrigation canals and applied dangerous pesticides, often using dangerous tools and sometimes operating unsafe farm machinery that they did not know how to operate. Many activities, such as carrying heavy and oversized loads, resulted in permanent disabilities and injuries. Fatigue was an ever-present problem because children could work for between 8 and 12 hours. Because they were outside all day, children were particularly susceptible to heat exhaustion, disease-carrying insects and illnesses posed by unsanitary drinking water. The myth that child labour in agriculture was not hazardous should finally be dispelled.

The Worker member of Kenya associated himself with the statement made by the Worker members and informed the Committee of the work accomplished by the Kenyan Central Organization of Trade Unions (COTU) with a view to the elimination of child labour. The Child Labour Department of COTU had carried out a number of awareness-raising workshops for trade union as well as religious and community leaders with the assistance of the ILO-IPEC programme, the American Center for International Labour Solidarity and the International Confederation of Free Trade Unions. The programmes focused on two COTU affiliates, namely the Kenya Plantation and Agricultural Workers' Union and the Kenya Union of Sugar Plantation Workers. As a result of these efforts, there was a hope that clauses on child labour might be incorporated in collective agreements within the coming year. There was also hope that the issue of age disparity in the definition of child labour would be addressed by the Labour Laws Review Task Force, while the Children Act, 2001, could provide a clear legal basis for defining the term "child"; this issue needed to be explored further in order to adopt a definition of child labour which would be in accordance with the Convention. The new Government seemed to be committed to eradicate child labour, as evidenced by the fulfilment of its promise to introduce free primary education. He expressed the hope that the new Government would also recognize the necessity of training and retraining labour inspectors so that they would be able to cope with the new challenges at the workplace, especially with respect to child labour. Child labour was rare where trade unions existed and where a collective agreement was in place. However, it was present in the many small farms where labour had not yet been organized. The eradication of child labour required concerted efforts by all the social partners, and needed to be extended to the fisheries and mining sectors of the economy. He urged the ILO to continue to provide assistance so that poverty, which was the main cause of child labour, could eventually be overcome.

The Worker member of Finland speaking on behalf of the Worker members of the Nordic countries, raised the question of the education of children, and especially girls, who should receive education on an equal basis with boys. Parents often undervalued the education of girls in Kenya, partly because adult women faced discrimination in employment and were thus viewed as having a lower earnings potential. As a result, only 35 per cent of girls finished school. It was extremely important for the Government to do its utmost in its fight against child labour and to secure education for girls. Children were the most valuable resource and represented the future. Their place was not at work, but at school. The report mentioned earlier by the Worker members indicated that poverty was a serious problem in Kenya, due to which children often worked as casual workers during harvest time. Even though the Government had shown a positive will by introducing free compulsory education, many hindrances still remained for families with low incomes to educate their children. For instance, such families could not afford to buy school uniforms and the Government should abolish all such hindrances. Finally, she emphasized the importance of providing free meals at school and urged the Government to tackle this matter, as starving children could not benefit from their education.

The Government member of the United States stated that the issue of child labour was one of utmost concern to her Government. She noted the statement made by the Government representative and welcomed the fact that primary education was now both free and compulsory for children up to the age of 16 years, if that was indeed what the Government was indicating to the Committee, as well as the other efforts made by the Government to bring the law and practice into conformity with the Convention. She further noted that Kenya was a recipient country of United States government funding through the ILO's IPEC technical assistance programme and encouraged the Government to work with the ILO to bring its child labour legislation into conformity with Convention No. 138.

A Worker member of Chad stated that the information supplied by the Government representative to the Committee had been encouraging. According to earlier statistics, over 3 million children between the ages of 6 and 14 years were obliged to work. Of this number, more than half could not have access to primary education and a large majority could not have access to secondary education. The Government representative had indicated that since January 2003 some 7 million children had access to education, which represented important progress.

The problem of child labour in Kenya was nevertheless serious. The corruption of the previous Government and structural adjustment had been partially responsible for this situation. The African trade union movement was confident that the new Government would re-establish tripartism in Kenya, in conformity with the respective ILO Conventions. Indeed, the application of the eight fundamental ILO Conventions and dialogue among the social partners would eliminate child labour in itself. He hoped that the Government would take measures in this regard.

Another Worker member of Chad stated that child labour affected the development of the country and the dignity of children. In Kenya, the problem of child labour was serious. According to the statistics, 1.9 million children from 5 to 17 years were working. Many of them worked not for remuneration, but for a small ration of food. They worked without rest periods, from the beginning of the day until night fell, without the possibility of time off. They worked because their parents were poor. He indicated that the concept of the establishment of a minimum age for admission to employment or work was important, and that the Free Confederation of Workers of Chad (CLTT) welcomed the statement by the Government that it no longer planned to reduce this minimum age from 16 to 15 years. In any case, several problems remained. The age of the completion of compulsory schooling had to be aligned with the minimum age of admission to employment or work. Education had to be accessible and free of charge for all, and, with a view to avoiding the problem of unemployment, should also offer children adequate vocational training. Furthermore, the problem of the schooling of young girls was of primary importance. In fact, in African countries, and particularly in Kenya, a large number of young girls worked constantly in dangerous occupations without any social coverage. They frequently left their homes alone and at a very young age, and they worked as servants in the service of unscrupulous employers. He hope that the Government would pay particular attention to the conclusions and recommendations of the Committee of Experts with respect to the legislation and that it would take the necessary measures in practice. The destiny of over 2 million children depended on the will of the Government to apply the principles of Convention No. 138.

The Government representative thanked the Employer and Worker members as well as the speakers who had taken the floor, for the debate which was a characteristic example of a constructive dialogue which should take place in the Conference Committee in order to help governments implement their obligations. With regard to the comments made by the Employer members on the need to bring the labour legislation into conformity with the Convention, he stated that a tripartite task force had been established in order to review all labour laws, as quite a few of them remained unchanged since 1963 when Kenya had become independent. Every effort was being made to review the labour laws in line with ratified Conventions, especially Convention No. 138. On the basis of an agreement reached between the Government and the ILO, which was represented in the tripartite task force by a senior expert, draft legislation would be examined by the ILO prior to its introduction to Parliament for adoption and would be transmitted to the ILO for printing.

With regard to the existence of a gap between the age at which children completed their compulsory education and the minimum age for admission to employment, he explained that most children tended to start school at the age of 6 years. However, in many cases and according to the circumstances, children started school at the later age of 7 or 8. The compulsory education system lasted for ten years if schooling had started in 1998, and for eight years if it had started before then. Consequently, children who had started school before 1998 at the age of 7 or 8 would complete school at the age of 15 or 16. In all other cases, the minimum age at which children would complete their compulsory education was 16 years of age. While most children went to school at an early age, certain difficulties existed due to the fact that a large part of Kenya was desert or semi-desert and it was difficult to gain access to school in these areas.

With regard to the definition of child labour, a clear definition was not yet available. It was customary for children to do light agricultural work in family enterprises after school or during holidays under parental supervision. In his view, this practice was part of the normal upbringing of children and was common even in Europe. Regarding the issue of hazardous work, a clear definition had not yet been adopted and this matter was currently under discussion. According to the available legislative drafts, the definition of hazardous work would probably include heavy, underground or night work, or work involving dangerous substances. With regard to light work, a definition would be adopted in the future on the basis of a tripartite agreement and would be reflected in legislation. In this respect, it should be clarified that children below 13 years of age were not permitted to work, including the performance of light work. With regard to work permits allowing the employment of children below the normal minimum age, he wished to specify that for any labour commissioner to issue such permits a series of special conditions had to be fulfilled; for instance, the work carried out had to be light work under supervision and should not affect the moral integrity of the child. As to the point raised with regard to girl children, he endorsed the view that there was a need to pay equal attention to girls as to boys. Certain issues, such as forced marriages and unwanted pregnancies, constituted a problem to which the Government was paying attention with a view to finding a solution.

The Employer members thanked the Government representative for the information provided which had confirmed the comments they had made earlier about the existence of a gap between the age at which compulsory schooling ended and the minimum age for admission to employment. It seemed that the age at which children happened to conclude their compulsory education depended on the age at which they had started school and that this age varied. It was necessary to indicate in this respect that there was a need for a more regular educational system. The Employer members did not doubt the good intentions of the Government, but could not consider that a simple statement that the Government would make every effort to address this issue constituted a satisfactory result, especially in light of the fact that this case had been discussed the previous year and there had been no new developments since with regard to the application of Convention No. 138. Concerning the Government's statement that draft legislation was under preparation and would be given to the ILO for printing, they suggested that the ILO should provide assistance at an earlier stage to facilitate the development of such legislation.

The Worker members stated that this case had been examined with the attention it deserved and thanked the Government for their observations and assurances, as well as the Employer members for their comments. After having heard the Government's summary, the Worker members were puzzled by the fact that millions of children continued to work in Kenya. The fundamental problem was that the legislation remained contradictory and incoherent and was not in conformity with the Convention. The Worker members expected the new Government to rebuild and strengthen an effective tripartite alliance in the country in order to eradicate child labour and promote universal basic education. They also expected the Government to avail itself, as a matter of urgency, of ILO technical assistance from all relevant departments in order to develop coherent legislation in conformity with the Convention. ILO assistance, a coherent legislative framework, an effective labour inspectorate, strong tripartite consultations and inter-agency cooperation among the authorities, including support and not hindrance from the Bretton Woods institutions, were key tools for practical success.

The Worker members concluded by referring to the case of Benta, a 10-year-old girl who worked in a coffee plantation. Exposure to pesticides put children like her at greater risk of developing skin irritations, breathing difficulties and long-term health problems, including cancer. Young pickers also suffered from snake bites, back strain and other injuries. Benta did go to school, but on Saturdays she reported by 7 a.m. to the coffee fields, where she earned less than $1 for ten hours of work. Her hands were very painful and the chemicals burnt her face as if hot water had been poured on it. The Worker members looked forward to the Government's next report and wished them and Kenya's social partners every success in their efforts. Benta and millions like her, as well as the members of the Committee, were looking forward to concrete results.

The Committee noted the information provided by the Government representative and the discussion that followed. It noted the information in the Government's last report that the draft legislation to reduce the minimum age from 16 to 15 had been withdrawn. The Committee requested the Government to provide information in its next report containing statistics on the number of boys and girls who were working, their ages, the sectors concerned and the geographical areas. The Committee noted the statement by the Government representative that the various matters raised by the Committee of Experts would be taken into consideration. The Committee noted in particular the indication by the Government representative that a free and compulsory primary education system for children of school age had been established as from January 2003, as well as the results obtained by this measure between January and May, which showed that over 1 million more children were attending school than before.

The Committee, recalling the fundamental importance of Convention No. 138 for the abolition of child labour, and particularly the importance of establishing the minimum age for admission to employment or work in all sectors, including agriculture, expressed the hope that the Government would maintain its efforts with the social partners and the assistance of the Office to give effect to the Convention in both law and practice. The Committee urged the Government to request ILO technical assistance with a view to clearly establishing the situation with regard to the age of completion of compulsory schooling and the minimum age for admission to employment. The Committee emphasized the benefits of labour inspection for preventive purposes in determining hazardous work, in accordance with the Convention, with particular reference to the agricultural sector.

Individual Case (CAS) - Discussion: 2001, Publication: 89th ILC session (2001)

A Government representative said that his Government had taken very careful note of the comments made by the Committee of Experts regarding the practical application of the Convention. He indicated that it was now planned to undertake a complete revision of both the Employment Act (Chapter 226) and the Employment Act (Children) Rules of 1977 within the framework of the general revision of the labour legislation. In May 2001, the Attorney-General had appointed a Task Force consisting of the various stakeholders (the Government, employers, workers and other interested parties) to undertake a comprehensive review of 23 chapters of the labour laws, with the assistance of ILO experts, to harmonize the domestic legislation and the various Conventions which Kenya had ratified. The Government had directed the Task Force to complete its work not later than December 2001.

With regard to the Bill on Children's Rights, a report had been submitted to Parliament in 2000, but had been referred back to the Task Force to undergo further detailed drafting in order to ensure an improved protection of children's rights. The Government sincerely hoped that the task force would be able to complete its work of reviewing the Bill very soon and indicated that it would be transmitted to the Committee of Experts. It should also be noted that Parliament was also very concerned to ensure that a very comprehensive Bill for the protection of children's rights in Kenya was in place in the very near future.

With regard to the application of Article 2 of the Convention, he said that the Government had taken very careful note of the Committee of Experts' comments concerning its intention to amend section 2 of the Employment Act so as to define a "child" as a person under 15 years instead of a person of 16 years of age, which would have the result of lowering the minimum age for employment or work under the Employment Act to 15 years. The Government representative recalled that his country had specified 16 years as the minimum age for admission to employment when registering the ratification of the Convention in 1979. In the light of the comments of the Committee of Experts on this point, the Government had decided not to effect any amendments in order to remain in compliance with this Article of the Convention.

With regard to the extension of the minimum age for admission to employment or work beyond industrial enterprises, he said that the Task Force would take careful note and would be guided by the Committee of Experts' comments.

With reference to the application of Article 3 of the Convention he indicated that the Government had taken a careful note of the comments made by the Committee of Experts on the need to consult the organizations of employers and workers during the deliberations by the Task Force in order to review the labour laws when determining the types of work to be prohibited for minors under the age of 18 because of the harm to their health, security or morals. Indeed, the tripartite members of the Task Force had recently been appointed under the chairmanship of one of the longest serving and most experienced industrial court judges in Kenya. The Government hoped that the present Task Force would develop appropriate protection legislation aimed at ensuring that minors' physical abilities and other relevant moral considerations were taken into account.

On the application of Article 7 of the Convention, he confirmed that the Government had taken careful note of the comments of the Committee of Experts regarding its previous report in which it had indicated that it was not yet considered to be the time to adopt legislation on the employment of children under 15 years of age on light work. It should be noted, however, that section 3 of the Employment Act (Children) Rules of 1997 allowed the employment of children with the prior written permission of an authorized officer, depending on the circumstances in which such light work was to be performed, bearing in mind the need to protect the children involved. In light of the various comments made by the Committee of Experts, this section of the Employment Act would be carefully re-examined by the newly appointed Task Force with a view to bringing the law into harmony with the relevant sections of the Convention.

With regard to Article 1 of the Convention, in conjunction with the relevant part of the report form, he said that, with the assistance of the International Programme on the Elimination of Child Labour (IPEC), the Government had just completed the draft child labour policy document. A copy of the above document would be transmitted to the Office before the end of June 2001. The draft child labour policy document also contained the national action plan, as envisaged in the context of the IPEC programme.

With regard to the activities of the Ministry of Education in cooperation with UNICEF, he reported that the measures taken to improve the provision of free and compulsory primary education included the school feeding programme carried out by the Government and the World Food Programme, with emphasis on the sustainability of the feeding programme through community activities in such areas as irrigation and cattle rearing. User charges had been regulated to reduce contributions by households as much as possible, and some scholarships had been awarded to girl children in the upper primary school and would continue to be granted.

Scholarships were also awarded to needy and deserving students in all public secondary schools amounting to 536 million Kenyan shillings for the year 2000-01. Textbooks had been provided to all primary schools in Kenya in key subjects through funds provided by, among other sources, the Netherlands Government and the World Bank through the STEPS project (Strengthening of Education at the Primary and Secondary Levels). Much guidance and counselling had also been provided with a view to reducing teenage pregnancies and the Government had taken measures to stop early marriages. A gender unit had been set up in the Ministry of Education, Science and Technology to ensure parity in school enrolments for both boys and girls, with assistance from the Forum for African Women Educationalists (FAWE), Kenya Chapter. Boarding schools had been set up in hardship areas, as well as mobile schools in nomadic areas, with a flexible curriculum to facilitate the participation by pastoralists and other nomadic tribes in cattle grazing and other economic activities before or after school. Curricula had been reviewed to reduce the number of subjects and the cost of teaching and learning aids, as well as to ensure in-service training for teachers. Measures had been taken to identify the persons with disability to ensure attendance at school by all children including the creation of more assessment centres throughout the country. Non-formal schools had been established where it was not necessary to complete the same number of years of study as in the formal system, and where there were no uniform or user charge requirements, with a view to improving overall enrolment rates. He added that Kenya was set to achieve universal primary education by the year 2005, which was within the Government's schedule to achieve education for all by 2015. Finally, action had also been taken for the integration of Madarassas (Islamic schools) into the normal formal education system, with a view to ensuring that no children were delayed in their education for reasons of religious belief.

With regard to the request by the Committee of Experts for information concerning the functioning of the Child Labour Unit, established in the Ministry of Labour and Human Resources Development, he indicated that it had been created in 1992 to ensure that child labour issues were taken into account in all government policies and programmes. It also coordinated all awareness-raising campaigns on the need to bring to an end to all forms of child labour, as well as to conducting workshops, seminars and other forms of media campaigns on the various ways of combating child labour. The unit had succeeded in elevating child labour issues into the national agenda in Kenya. It also coordinated the collection of data and devised ways of detecting clandestine child labour. It coordinated the activities of other stakeholders, such as the Federation of Kenya Employers and the Central Organization of Trade Unions for the elimination of child labour. Finally, the Unit had been established to continue with the implementation of the various national action programmes for the elimination of child labour once the IPEC programme had come to an end.

With regard to the national action plans adopted by the inspection system to improve controls over child labour, he undertook to continue the same course of action with the aim of identifying children working in dangerous occupations and taking the necessary remedial action. The Government would continue to furnish the results of such studies and of inspection visits to the Committee of Experts.

Finally, in response to the request made by the Committee of Experts for information on the collection of data on child labour, he confirmed that an inquiry on the current state of child labour throughout the country had just been completed by the Central Bureau of Statistics and that the final report would be published in April 2001. The Government undertook to transmit the results of the inquiry carried out by the Bureau to the Office by the end of June 2001.

In conclusion, he reiterated his Government's continued commitment to eradicate all forms of child labour in Kenya within the shortest possible time. The political will to accomplish this goal remained beyond question.

The Employer members thanked the Government representative for his detailed statement. Although the Committee of Experts had made comments on the case in 1995, 1997 and 1998, this was the first occasion on which it had been discussed by the Conference Committee.

They recalled that the Government had already announced in a previous report that a general revision of the labour legislation would be undertaken in the near future with the assistance of the ILO and in consultation with the social partners. The Government representative had stated that a Bill on children had been submitted to Parliament and was currently under examination. In this respect, the Committee of Experts had also noted that a change had been proposed in the definition of the term of "child", through an amendment to section 2 of the Employment Act, lowering the minimum age for employment or work. A child would now be defined as a person under 15 years of age, instead of 16. When ratifying the Convention, the Government had specified the age of 16 as the minimum age for admission to employment or work, in accordance with Article 2, paragraph 1, of the Convention. Kenya was therefore bound by that definition. However, the Employer members were not quite clear whether the amendments announced by the Government representative would be made under the Bill or in the context of the general revision of the labour legislation.

They recalled the observation by the Committee of Experts that the minimum age established by the Employment Act only applied to industrial enterprises, which constituted a clear shortcoming in the law. A similar situation pertained with regard to harmful work, which was prohibited for young persons under 18 years of age in accordance with Article 3 of the Convention. With reference to the conditions under which light work was permitted, they recalled that, according to Article 7 of the Convention, admission to light work was only permitted for persons over 13 years of age and only when the work was not such as to be harmful to their health or development or to jeopardize their school attendance. Moreover, the number of hours of such work were limited. Kenyan legislation contained no legal provisions on these matters.

They therefore called upon the Government representative to indicate whether all the points raised by the Committee of Experts were covered by the new legislation. Clarification would also be needed on the legislation which would cover the above issues. Would it be the new Bill or the revised labour legislation? Finally, the Government representative should indicate the schedule within which the legislative work would be completed.

With reference to the policy on child labour developed within the context of the IPEC programme, the Employer members noted the action plan developed in cooperation with UNICEF and the studies undertaken on the education system. They emphasized the positive intentions shown by the action plan and hoped that it would be implemented in large part. However, they also noted the estimates that some 3.5 million children between the ages of 6 and 14 did not attend school. While welcoming the statement by the Government representative that a study would be carried out on this issue and the respective data provided to the Committee of Experts, they expressed the fear that this signified that no studies of the issue had yet been carried out. They also noted that a reform had been undertaken of the inspection system within the framework of the action plan with a view to improving controls over child labour. They emphasized that such controls, carried out in a professional manner, were important in improving the situation of the children concerned. In conclusion, the Employer members said that precise information was still required. Up to now, the Government had only expressed its general intention of taking the necessary action.

The Worker members thanked the Government representative for the interesting information that he had provided to the Committee regarding the efforts and commitments undertaken by his Government. They noted that this was the first time that the Committee had examined problems relating to the application of Convention No. 138 in Kenya, ratified in 1979, and they noted with satisfaction that Kenya had also recently ratified the Worst Forms of Child Labour Convention, 1999 (No. 182). The latter was the ILO Convention which had registered the most ratifications in a short period of time. This clearly showed the broad consensus which existed worldwide regarding the need to take steps to not only diminish, but totally eradicate the scourge of child labour.

They wished to remind the Committee that, if ratification was a good thing, effective application of ratified Conventions was even better. In fact, while it was to be hoped that ratification was the fruit of a State's political will to set things in motion, the progress that interested this Committee the most involved the actual situation in the country. The objective of Convention No. 138 was for governments to take measures in law as well as practice to ensure respect for the minimum age for admission to employment.

The Committee of Experts' observations concerned a number of points. The first point raised by the Experts concerned the Employment Act. The Worker members noted that this Act was in the process of being revised and that discussions were currently taking place regarding the substance of the amendments to be made. They pointed out that the Committee of Experts had asked the Government to take into account two current legal provisions which were contrary to Article 2 of Convention No. 138. First, in the ratification instruments, the Government of Kenya had specified 16 years as the minimum age for admission to employment or work. It would now be appropriate to incorporate this commitment into the national legislation, which currently sets the minimum age for admission to employment for work at 15 years. Second, the Worker members noted that, for many years, the Committee of Experts had drawn the Government's attention to the fact that, under Kenyan legislation, the minimum age for admission to employment or work applied only to industrial enterprises. The Worker members stated that, in order to conform the legislation to the provisions of the Convention, the principle of a minimum age for admission to employment or work should be extended to all sectors of the economy. Nevertheless, despite the numerous observations made by the Committee of Experts regarding the incompatibility of this provision with the Convention, the Government had apparently failed to change the situation.

The second point raised by the Committee of Experts concerned "hazardous work". In fact, Convention No. 138 contemplated that certain types of work should be prohibited for minors less than 18 years old because of the harmfulness to their health, their security or their morals. The Worker members could not help but observe that, 22 years after Kenya had ratified this Convention, the Government had still not issued a list determining these types of work. In this regard, they highlighted the importance of the list, particularly now that Kenya had also ratified Convention No. 182 and they expressed the hope that, in ratifying this new instrument, the Government would issue a list of hazardous jobs as quickly as possible.

The third point raised by the Committee of Experts concerned the lack of a definition of so-called light work. They recalled that, on this point as well, the Committee of Experts had made observations for many years. Despite these observations, the legislation and practice remained in violation of the provisions of Convention No. 138. They therefore stated that the Government should provide the Office with a definition of light work, an age limit for children that could be employed in this type of work (not to exceed the age of 13) and, lastly, a prescription regarding the number of hours and the conditions of such employment or work.

It was with great interest that the Worker members noted the technical assistance offered by the IPEC programme, as well as the cooperation with UNICEF in combating the problem of child labour in Kenya and improving the educational system. They particularly highlighted the efforts undertaken by the Government, with the assistance of the IPEC programme to improve the operation of the labour inspection system to improve controls over child labour. They were convinced that labour inspection was an essential tool for the effective application of the labour laws in general and of child labour legislation in particular.

In light of the statistics contained in the Committee of Experts' observation, the Worker members considered that the child labour situation in Kenya was very serious. They took due note of the promises made by the Government representative, but noted at the same time that there was a long way to go. For this reason, they requested that the Kenyan Government continue its efforts to combat child labour and to supply the Committee of Experts with information concerning the outcome of these efforts.

The Worker member of Niger said that the case of Kenya concerned the specific issue of the minimum age of admission to employment or work, or in other words the problem of child labour. Although, when ratifying the Convention in 1979, Kenya had specified a minimum age of 16 years, it was now tending to violate the Convention. He expressed puzzlement at the draft amendment to the legislation referred to by the Government representative. At a time when nearly all the member States of the ILO were ratifying Conventions Nos. 138 and 182, it was surprising that Kenya was examining retrogressive draft legislation to make children work at a younger age. Sections 3 and 25 of the 1977 Regulations were revealing and insidious in this respect. The report of the Committee of Experts had been very clear in showing that the Convention was violated and that this was done on purpose. This was demonstrated by the fact that the minimum age of admission to employment did not apply to all economic sectors, as if there were sectors in which it was permissible for children to work. He warned the Committee that the Government was merely trying to gain time and that the lives of millions of children were at stake.

The Worker member of the United Kingdom explained that the purpose of his comments was both to reinforce the findings of the Committee of Experts with regard to the need for legislative change and to encourage continued and more rapid progress by the Government in the implementation of the national action plan envisaged in the context of the IPEC programme. He noted with particular pleasure that Kenya had ratified Convention No. 182 in May 2001 and hoped that the complementary nature of the two Conventions would help the Government and the social partners develop further effective tripartite action in pursuit of the aims of both Conventions.

He expressed puzzlement as to why the Government, at a time when the discussion and adoption of Convention No. 182 by the Conference had further clarified the requirements of Convention No. 138, and when it was engaging so positively with IPEC, should have even considered reducing the minimum age of admission to employment, in clear breach of the Convention. He emphasized that such a course of action would send all the wrong messages about the political will of the Government to pursue the effective abolition of child labour, not only to the social partners, civil society and the international community, but in particular to unscrupulous employers who sought excuses to continue their exploitation of children. He therefore welcomed the statement by the Government representative that the amendment would not be pursued. He added that legislation that applied only to the industrial sector was not in conformity with the Convention. It was evident that in a country where so much of the population, both adults and children, worked in agriculture, where domestic service was also a major source of employment, and where commercial services, both formal and informal, were also important, the fact that the laws on the minimum age of admission to employment only dealt with industrial work excluded the vast majority of child labourers from their scope. It was also extraordinary, in view of the fact that the work of the Kenya Union for Domestic, Hotels, Educational Institutes, Hospitals and Allied Workers (KUDHEIMA), in collaboration with the ILO, on children working in domestic service, was a significant example of good practice. He emphasized that the lack of conformity with the Convention, and particularly the ridiculously low scope of coverage of the law, was a major issue which had to be addressed with speed, particularly in view of the hazards involved in agriculture and the incidence of child abuse in domestic service.

He welcomed the preparation by the Ministry of Education of draft legislation to make primary education compulsory, as well as other initiatives, including those relating to the girl child. He emphasized that Convention No. 182 complemented Convention No. 138 and the central importance of education in combating child labour. Recommendation No. 190 also called on international institutions to support the aims of Convention No. 182. Moreover, in its discussions of the Joint ILO/UNESCO Committee of Experts on the Application of the Recommendation concerning the Status of Teachers (CEART) report on the status and conditions of teachers, he recalled that the Committee had re-emphasized the right of teachers to bargain collectively and the need for them to be adequately paid. In that connection, he noted that, although the Kenyan Teachers' Union had negotiated a wage increase with the Government, and despite the support of the STEP programme, the IMF had stopped the Government paying the agreed increase as a condition for its loan.

The most serious aspect of the case was that the Employment (Child) Rules of 1977 effectively permitted all types of child labour, regardless of age. The requirement for consent from parents or from the Labour Commissioner did not remove the hazards from particular occupations. Moreover, the Rules did not even clearly limit the employment of under-age children (that is, children under 16 and over 12 years of age) to light work. As a result, there was no effective lower age limit, despite the amendment to section 2 of the Employment Act. The Rules and the Act contradicted one another, and both were in contradiction with the Convention. He added that the legislation on hazardous work and the relevant age limit was insufficient. Nevertheless, he expressed satisfaction that the Government was training labour inspectors to deal with child labour issues, including hidden child labour, and that innovative communications and awareness-raising techniques were being used in Kenya. He also looked forward to the establishment and implementation of a time-bound programme in Kenya under Convention No. 182, and to a major acceleration in the rate of transfer of children from work to school.

He said that Convention No. 138 was to a great extent an aspirational Convention. Setting a minimum age alone does not magically remove child labour. He therefore urged the Kenyan Government to continue its cooperation with IPEC, develop the tripartite structures and provision of education necessary to eliminate child labour in the country and ensure that its legislation was in conformity with Convention No. 138, rather than sending the wrong messages to the country and the world about its political will.

Finally, he referred to a text on child labour that was being prepared for the special session of the United Nations General Assembly on the rights of the child, which referred to improving living and working conditions for children who worked by promoting quality basic education and social and economic policies aimed at poverty reduction to help families of working children with employment and income-generating opportunities. He drew the Committee's attention to the fact that this text made no mention of the minimum age for admission to employment and was therefore in contradiction with Conventions Nos. 138 and 182, as well as with the Declaration on Fundamental Principles and Rights at Work, and would ignore the call on international institutions and member States to support the aims of Convention No. 182, thereby sending hugely confusing and wrong messages about their obligations to governments such as that of Kenya.

The Government representative said that he had listened very carefully and with keen interest to the valuable comments made by the Employer and Worker members and other speakers. He confirmed that the Government would take all the necessary steps to ensure full compliance with the provisions of the Convention. The two reports mentioned, namely the child labour policy document and the report by the Central Bureau of Statistics concerning child labour in Kenya today, would also be made available to the Committee of Experts for its next session at the end of the year.

In response to the comments made by the Employer members concerning the minimum age for admission to employment or work, he indicated that, when ratifying the Convention in 1979, a minimum age of 16 had been specified. However, this had created a problem in view of the fact that most children completed schooling at the age of either 14 or 15, thereby leaving a gap before they were able to enter work. The proposal had therefore been made to amend section 2 of the Employment Act with a view to harmonizing the minimum age with the completion of compulsory education. Nevertheless, in view of the comments made, it had now been decided to leave the amendment aside at present and therefore to continue respecting the minimum age for admission to employment or work of 16 as specified when ratifying the Convention. In view of the fact that the Employment Act did not contain a definition of light work or specify a minimum age for hazardous work or cover sectors other than industrial enterprises, the Task Force would be responsible for ensuring that action was taken to remedy these shortcomings.

The Employer members regretted that the Government representative had not responded to all the issues raised. The Conference Committee needed to be informed of the precise wording of the legislation and the time schedule within which the legislative work would be carried out. Further information should therefore be supplied to the Committee of Experts. The Government not only needed to amend its legislation, but also its practice, to bring both into conformity with the Convention.

The Worker members noted the statements made by the various speakers and said that, although the Kenyan Government had the political will to combat child labour, they nevertheless noted that certain legal provisions for the practice of child labour still persisted. For this reason, they urged the Government once again to make more effort in this field, with the assistance of the IPEC programme and other organizations, such as UNICEF.

The Committee noted the information provided by the Government representative and the discussion that followed. It noted with concern that, according to the information provided by the Government, more than 3.5 million children did not attend school and were working in the various sectors of the economy. The Committee further noted that, although the Government had taken certain action to protect children (boys and girls) engaged in hazardous work in over 600 enterprises, fewer than half of them had been removed from such work. The Committee also observed that, according to official data, over 800,000 children worked on the streets. This form of work had generally been considered to be harmful to children's health and morals. In this respect, the Committee noted the ratification of Convention No. 182 by Kenya.

The Committee expressed concern, in view of the dimensions of the problem, that the Government had not yet implemented the draft child labour policy developed with the support of IPEC. The Committee also noted that in the process of revising the legislation that was currently under way, the minimum age for admission to employment or work, which had been set at 16 years when the Government had ratified the Convention, could be lowered to 15 years. The Committee noted that, in its observation, the Committee of Experts had requested the Government to ensure that the minimum age was not reduced to 15. It also noted that in the same observation the Committee of Experts had requested the Government to take the necessary measures to extend the application of the legislation, and therefore the Convention, to all sectors of the economy, since the current provisions of the legislation respecting the minimum age only applied to industrial work. The Committee further noted that there was also no provision determining work which was considered dangerous nor on work considered to be light work. The Committee noted with interest the Government's undertaking that it would take into consideration the different matters raised by the Committee of Experts, as well as the composition of the Task Force and the draft legislation that was under examination.

The Committee therefore urged the Government to adopt the necessary measures to combat child labour. To this end, the Committee hoped that the Government would soon implement the draft child labour policy set out in the recently completed national action plan, and that it would allocate the resources to put it into effect. The Committee also hoped that the ongoing legislation revision process would not affect the minimum age for admission to work or employment which had been set at 16 and in conformity with the commitment made by the Government representative to the Committee, and that the necessary provisions would be adopted to extend the application of the minimum age to all types of work, in addition to industrial work, and that a definition would be adopted of dangerous work, and that work considered to be light work would be regulated. The Committee also urged the Government to strengthen labour inspection activities with a view to the protection of young persons, and particularly those working in agriculture. The Committee further urged the Government to submit a detailed report specifically addressing the matters raised above so that the Committee of Experts could examine it at its next session in November-December 2001. The Committee hoped that collaboration between the Government, IPEC and UNICEF would be strengthened with a view to consolidating the action taken to combat child labour.

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

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

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

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

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

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

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

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

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

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

Article 2, paragraph 3, of the Convention. Age of completion of compulsory schooling. The Committee had previously noted that, under section 7(2) of the Children’s Act, every child shall be entitled to free basic education which shall be compulsory. It had also noted that, according to the Child labour report 1998–99 and the “Child labour policy”, primary education is compulsory from 6 to 13 years of age. The Committee had further noted the Government’s information that children in Kenya complete schooling at different ages and that the Government had not envisaged fixing the age of completion of compulsory schooling. In this respect, the Committee had noted the information provided by the Government of Kenya to the Conference Committee on the Application of Standards in June 2006 concerning the application of the Minimum Age Convention, 1973 (No. 138), that it had appointed a committee to review the Education Act with a view to modifying, inter alia, the age of completion of compulsory schooling. Recalling that this Convention had been ratified by Kenya more than 25 years ago, the Conference Committee had urged the Government to ensure that legislation addressing the gap between the age of completion of compulsory schooling and the minimum age for admission to employment or work would be adopted shortly.

The Committee notes the Government’s indication that the average age for completing free primary education is 14–16 years. It also notes the Government’s statement that in order to address the gap between the minimum age for admission to employment and the age of completion of compulsory schooling, the Government has waived the tuition fees for the first two years in secondary schooling. It further notes the Government’s indication that it has not envisaged adopting any legislation fixing the age of completion of compulsory education. The Committee notes, however, that according to UNICEF statistics for 2007, the gross enrolment rate in primary education is 75 per cent for boys and 76 per cent for girls, and that the rate for secondary education is 52 per cent for boys and 49 per cent for girls. It also notes that according to the Global Monitoring Report 2009 on Education for All, published by UNESCO, there are about 0.9 million out-of-school children in Kenya. The Committee expresses concern at the relatively low enrolment rate for secondary education and the number of out‑of‑school children in Kenya. The Committee is of the view that compulsory education is one of the most effective means of combating child labour and it is important to emphasize the necessity of linking the age of admission to employment to the age limit of compulsory education. If the two ages do not coincide, various problems may arise. If compulsory schooling comes to an end before the young persons are legally entitled to work, there may be a period of enforced idleness (see ILO: Minimum age, General Survey of the reports relating to Convention No. 138 and Recommendation No. 146 concerning minimum age, report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 4(B)), ILC, 67th Session, Geneva, 1981, paragraph 140). The Committee therefore urges the Government to take the necessary measures to set the age of completion of compulsory schooling at 16 years, as a matter of urgency. It requests the Government to provide information on the developments made in this regard. The Committee also requests the Government to redouble its efforts to improve the operation of the education system, in particular by increasing school enrolment and attendance rates among children under 16 years of age at the primary as well as the secondary level.

Article 3, paragraph 2. Determination of hazardous work. The Committee had previously noted the Government’s statement that the stakeholders had approved a list of the types of hazardous work which would be presented to the National Labour Board for final approval, before the minister assented to it as part of legislation. The Committee notes the Government’s information that the list is still undergoing the process of approval by the National Labour Board and thereafter adoption by the minister. The Committee expresses the firm hope that the list of types of hazardous work will be adopted in the very near future. It requests the Government to supply a copy of the same as soon as it has been adopted.

Article 3, paragraph 3. Admission to hazardous work as from 16 years of age. The Committee had previously noted that section 10(4) of the Children’s Act provides that the minister shall make regulations in respect of periods of work and establishments where children aged at least 16 years may work, including hazardous work. It had also noted the Government’s indication that the competent Minister had issued regulations referred to in section 10(4) of the Children’s Act, which is an Act of Parliament. The Committee notes the Government’s statement that the Children’s Act is currently being reviewed and that the copy thereof will be sent after adoption by the Parliament. The Committee hopes that the regulations issued under section 10(4) of the Children’s Act will be adopted soon. It requests the Government to provide a copy thereof, as soon as it has been adopted.

Article 6. Apprenticeship. The Committee had previously noted the Government’s indication that the Industrial Training Act was being amended to bring the legislation into conformity with the Convention with regard to apprenticeship. It had noted that, according to section 58(1) of the Employment Act of 2007, no person shall employ a child of between 13 and 16 years of age, other than one serving under a contract of apprenticeship or indentured learnership in accordance with the provisions of the Industrial Training Act, in an industrial undertaking to attend to machinery. Similarly, section 57 of the Employment Act, which lays down the penalties for breach of the provisions of light work by children, exempts children between the ages of 13 and 16 years who are subject to the provisions of the Industrial Training Act relating to contracts of apprenticeship. The Committee had observed that, according to the Employment Act of 2007, children between 13 and 16 years of age are allowed to take part in apprenticeship programmes subject to the provisions of the Industrial Training Act. In this regard, the Committee had reminded the Government that Article 6 of the Convention fixes a minimum age of 14 years for work done in undertakings, where such work is carried out in accordance with conditions prescribed by the competent authority, after consultation with the organizations of employers and workers concerned, where such exist, and is an integral part of: (a) a course of education or training for which a school or training institution is primarily responsible; (b) a programme of training, mainly or entirely, in an undertaking, which programme has been approved by the competent authority; or (c) a programme of guidance or orientation designed to facilitate the choice of an occupation. The Committee once again notes the Government’s information that the Industrial Training Act is being amended to bring the legislation into conformity with the Convention. The Committee expresses the firm hope that the amendments to the Industrial Training Act will be adopted in the near future with a view to bringing it into conformity with the Convention. It requests the Government to provide information on any developments in this regard.

Article 7, paragraph 3. Determination of light work. The Committee had previously noted that, according to section 56(3) of the Employment Act, the minister may make rules prescribing light work in which a child of 13 years may be employed and the terms and conditions of that employment. The Committee had requested the Government to take the necessary measures to determine the light work activities that may be undertaken by children of 13 years of age and to prescribe the number of hours during which, and the conditions in which, such work may be undertaken. The Committee notes the Government’s statement that while the reviewing of the rules and regulations has not yet been completed, these rules and regulations clearly stipulate the types of light work activities permitted to children under 13 years, and the hours and conditions of such employment. The Committee expresses the firm hope that the regulations determining the light work activities that may be undertaken by children of 13 years of age and the number of hours during which, and the conditions in which, such work may be undertaken, will be adopted in the near future. It requests the Government to provide a copy of the regulations as soon as they have been adopted.

Article 8. Artistic performances. The Committee had previously noted section 17 of the Children’s Act, which provides that a child shall be entitled to leisure, play and participation in cultural and artistic activities. It had noted that the national legislation does not provide for permits to be granted to children participating in cultural artistic performances. The Committee once again notes the Government’s information that no consultations with the social partners with regard to the granting of individual permits for artistic performances have been so far undertaken. It further notes the Government’s indication that this matter will be addressed in the subsidiary legislation yet to be completed. The Committee once again expresses the firm hope that in its next report the Government will be in a position to provide information on the progress made in the revision of national legislation in order to ensure that approval for young persons below 16 years of age to take part in artistic performances is required in individual cases. It also reminds the Government that the permits so granted must prescribe the number of hours during which, and the conditions in which, such employment or work shall be permitted.

Article 1 and Part V of the report form. National policy and application of the Convention in practice. The Committee notes the Government’s information that the incidence of child labour in Kenya has reduced tremendously from 1.9 million in 1998–99 to 951,273 in 2005. According to the Government’s report this reduction is attributed to the following measures taken by the Government: free primary education; fee waiver for the first two years of secondary education; financial assistance to orphans and vulnerable children; policy development and legislation; social mobilization and awareness raising among the general population; enhanced capacity among stakeholders on child labour issues; expanded knowledge base through research; and strong partnerships with stakeholders among other interventions. The Committee notes, however, the Government’s statement that it is also experiencing the following challenges in the fight against child labour:

–           information on the employment of children is hard to obtain as most of the employers do not keep records of child employment or claim other reasons for keeping them as employees;

–           serious unemployment problems coupled with high poverty and the HIV pandemic;

–           enforcement of child labour legislation is weak due to lack of resources, transport, and manpower;

–           lack of alternative placement such as vocational training institutions for children removed from child labour.

The Committee notes, however, the information provided by the Government in its report under Convention No. 182 that in order to face the above challenges the Government has adopted several measures including: strengthening and enhancing the monitoring capacity of the district child labour committees and the local child labour committees; reviewing and upgrading the child labour monitoring system under the ILO–IPEC TACKLE project in order to develop a central data system for children; and implementing a cash transfer programme for families having orphans and vulnerable children (OVC) including orphans of HIV/AIDS. The Committee encourages the Government to continue taking similar measures to face the abovementioned challenges experienced in the fight against child labour and to provide information in this regard. Moreover, while noting the improvement in reducing the incidence of child labour over the past few years, the Committee nevertheless urges the Government to redouble its efforts to ensure the progressive abolition of child labour. The Committee further requests the Government to provide information on the application of the Convention in practice, including, for example, statistics on the employment of children and young persons, extracts from the reports of the inspection services and information on the number and nature of the contraventions reported and sanctioned imposed.

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

The Committee notes the Government’s report. It notes the adoption of the newly enacted Employment Act of 2007 which was supplied by the Government along with its report.

Article 2, paragraph 1, of the Convention. Scope of application. 1. Branches of economic activity covered by the Convention. The Committee had previously noted that according to section 25(1) of the Employment Act, the prohibition on employing children (i.e. a person under 16 years of age according to section 2 of the Act) is limited to work performed in industrial undertakings. It had also noted the Government’s information that the Employment Act was being revised and that the draft bill has extended the application of the minimum age for admission to employment to all sectors of the economy. It had requested the Government to provide information on the progress made in adopting the revised Employment Act. The Committee notes with satisfaction that section 56(1) of the Employment Act of 2007 extends the application of the minimum age for admission to employment to all undertakings.

2. Unpaid work. The Committee had previously noted that section 10(5) of the Children Act, 2001, defines the term “child labour” as any situation where a child provides labour in exchange for payment. It had observed that unpaid workers do not benefit from the protection laid down in the Children Act. Noting the Government’s indication that it intended to harmonize all legislation dealing with children and child labour to conform to the provisions of this Convention, the Committee had expressed its hope that the necessary amendments would be adopted soon. The Committee notes with satisfaction that, according to section 56(1) of the Employment Act, except for light work, no person shall employ a child below 16 years of age whether gainfully or otherwise in any undertaking. It also notes the Government’s information that the authoritative legislation on child labour will be the Employment Act of 2007.

Article 2, paragraph 3. Age of completion of compulsory schooling. The Committee had previously noted that, under section 7(2) of the Children Act, every child shall be entitled to free basic education which shall be compulsory. It had also noted that, according to the Child Labour Report 1998–99 and the “Child Labour Policy”, primary education is compulsory from 6 to 13 years of age. The Committee had further noted the Government’s statement that the draft legislation on compulsory schooling which would address the gap between the age of completion of compulsory schooling, (14 years of age) and the minimum age for admission to employment or work (16 years of age), was being prepared. Noting the Government’s indication that there exists no texts that specifically fixes the age for compulsory schooling, the Committee had requested the Government to indicate whether it is envisaged to adopt legislation which would fix the age of completion of compulsory schooling.

The Committee notes the Government’s information in its report that children in Kenya complete schooling at different ages and that the Government has not envisaged fixing the age of completion of compulsory schooling. In this respect, the Committee refers to the information provided by the Government of Kenya to the Conference Committee on the Application of Standards in June 2006 concerning the application of the Minimum Age Convention, 1973 (No. 138). The Government representative stated that it had appointed a committee to review the Education Act with a view to modifying, inter alia, the age of completion of compulsory schooling. The Conference Committee, while noting the Government’s indication that it intended to adopt legislation dealing with children and child labour to conform to the provisions of Convention No. 138, recalled that this Convention had been ratified by Kenya more than 25 years ago. Considering that compulsory education is one of the most effective means of combating and preventing child labour, the Conference Committee urged the Government to ensure that legislation addressing the gap between the age of completion of compulsory schooling and the minimum age for admission to employment or work would be adopted shortly. The Committee urges the Government, in view of the commitment made by the Government representative to the Conference Committee over two years ago, to take without delay, the necessary measures to fix the age of completion of compulsory schooling at 16 years. It requests the Government to provide information on any developments made in this regard.

Article 3, paragraph 2. Determination of hazardous work. The Committee had previously noted the Government’s indication that it had developed a draft list of types of hazardous work in consultation with social partners and stakeholders. It had requested the Government to provide a copy of the list of types of hazardous work as soon as it was adopted. The Committee notes the Government’s statement that the stakeholders have approved a list of the types of hazardous work which will be presented to the National Labour Board for final approval, before the Minister assents to it as part of legislation. The Committee further notes that, while the Government indicates that it has sent a copy of the list of types of hazardous work along with its report, no such list was in fact sent to the Office. The Committee therefore once again requests the Government to supply a copy of the list of the types of hazardous work as soon as it has been approved by the National Labour Board.

Article 3, paragraph 3. Admission to hazardous work as from 16 years of age. The Committee had previously noted that section 10(4) of the Children Act provides that the Minister shall make regulations in respect of periods of work and establishments where children aged at least 16 years may work, including hazardous work. It had also noted the Government’s indication that the competent Minister had issued regulations referred to in section 10(4) of the Children Act, which is an act of Parliament. The Committee had requested the Government to provide a copy of these regulations. Noting that the Government has not provided a copy of the above regulations, the Committee once again requests the Government to supply a copy of the regulations issued under section 10(4) of the Children Act, along with its next report.

Article 6. Apprenticeship. The Committee had previously noted that, by virtue of section 8(3) of the Industrial Training Act (Chapter 237), a minor (i.e. a person under 15 years of age according to section 2 of the Industrial Training Act) may enter into an apprenticeship with the authorization of his/her parents or guardian or, in the absence of such authorization, of a district officer or labour officer. It had also taken note of section 25(2) of the Employment Act, 1976, which exempts a child employed in an industrial undertaking under a deed of apprenticeship from the minimum age for admission to employment. Noting that the national legislation does not contain any provision which fixes a minimum age for apprenticeship, the Committee had hoped that the necessary amendments would be adopted to bring the legislation in conformity with Article 6 of the Convention.

The Committee notes the Government’s indication that the Industrial Training Act is being amended to bring the legislation into conformity with the Convention. The Committee notes that, according to section 58(1) of the Employment Act of 2007, no person shall employ a child of between 13 and 16 years of age, other than one serving under a contract of apprenticeship or indentured learnership in accordance with the provisions of the Industrial Training Act, in an industrial undertaking to attend to machinery. Similarly, section 57 of the Employment Act, which lays down the penalties for breach of the provisions of light work by children, exempts children between the ages of 13 and 16 years who are subject to the provisions of the Industrial Training Act relating to contracts of apprenticeship. The Committee observes that, according to the Employment Act of 2007, children between 13 and 16 years of age are allowed to take part in apprenticeship programmes subject to the provisions of the Industrial Training Act. In this regard, the Committee reminds the Government that Article 6 of the Convention fixes a minimum age of 14 years for work done in undertakings, where such work is carried out in accordance with conditions prescribed by the competent authority, after consultation with the organizations of employers and workers concerned, where such exist, and is an integral part of: (a) a course of education or training for which a school or training institution is primarily responsible; (b) a programme of training, mainly or entirely, in an undertaking, which programme has been approved by the competent authority; or (c) a programme of guidance or orientation designed to facilitate the choice of an occupation. The Committee requests the Government to take the necessary measures to ensure that the amendments to the Industrial Training Act will be in conformity with Article 6 of the Convention. It asks the Government to provide information on any developments in this regard in its next report.

Article 7, paragraph 1. Admission to light work. In its previous comments, the Committee had noted that under section 3(1) of the Employment (Children) Rules 1977, children may be permitted to work with the written permission of an authorized officer, except in bars, hotels, restaurants or clubs where intoxicating liquors are sold, or as a tourist guide. Recalling that Article 7, paragraph 1, of the Convention permits only children from 13 years to undertake light work, the Committee urged the Government to indicate the measures taken to ensure that light work may only be performed by children of 13 years of age. The Committee notes with satisfaction that, according to section 56(2) of the Employment Act of 2007, a child between the ages of 13 and 16 years may be employed to perform light work which is not likely to be harmful to the child’s health or development; and not such as to prejudice the child’s attendance at school, or his/her participation in vocational orientation or training programmes.

Article 7, paragraph 3. Determination of light work. The Committee had previously requested the Government to indicate the measures taken or envisaged to determine light work activities and to prescribe the number of hours during which, and the conditions in which, such employment or work may be undertaken by young persons of 13 years of age and above. The Committee notes that, according to section 56(3) of the Employment Act, the Minister may make rules prescribing light work in which a child of 13 years may be employed and the terms and conditions of that employment. The Committee notes the Government’s information that the regulations governing light work are yet to be developed. The Committee requests the Government to take the necessary measures to determine the light work activities that may be undertaken by children of 13 years of age and to prescribe the number of hours during which, and the conditions in which, such work may be undertaken.

Article 8. Artistic performances. The Committee had previously noted section 17 of the Children Act, which provides that a child shall be entitled to leisure, play and participation in cultural and artistic activities. It had noted that the national legislation does not provide for permits to be granted to children participating in cultural artistic performances. Noting the Government’s indication that this matter would be addressed during the revision of the Children Act, the Committee had asked the Government to provide information on the progress made in this respect. The Committee notes the Government’s information that no consultations with the social partners with regard to the granting of individual permits for artistic performances have been so far undertaken. It further notes the Government’s indication that this matter will be addressed in the subsidiary legislation yet to be undertaken. The Committee expresses the firm hope that in its next report the Government will provide information on the progress made in the revision of national legislation in order to ensure that approval for young persons below 16 years of age to take part in artistic performances is granted in individual cases. It also reminds the Government that the permits so granted must prescribe the number of hours during which, and the conditions in which, such employment or work shall be permitted.

Article 1 and Part V of the report form. National policy and application of the Convention in practice. The Committee notes the Government’s statement that it will endeavour to provide information on the practical application of the Convention, including statistical data on employment of children and inspection reports. The Committee notes that, according to the Kenya Integrated Household Budget Survey, 2005, a total number of 951,273 children were recorded as working, indicating a reduction compared to the 1.9 million working children between the ages of 5 to 17 years recorded in the 1998/99 Child Labour Report (National Plan of Action on the Elimination of Child Labour in Kenya, 2004–15, page 3, hereinafter National Plan of Action). This survey does not include children on the streets which are estimated to be over 700,000 in 2007, according to the UNICEF Review of Progress towards the World Fit for Children Plus 5 goals in Kenya. According to the report on the National Plan of Action, in Kenya, child labour is found in all sectors, especially in commercial and subsistence agriculture, domestic work and other sectors such as child prostitution and pornography, drug trafficking, hawking and herding. The Committee also notes that the National Plan of Action identified a number of factors which contribute to child labour, such as poverty, the HIV/AIDS pandemic, insecurity and conflicts, cultural practices which enhance child labour, weak institutions leading to challenges in enforcing legislations and implementation of policies, etc. The Committee notes that the Government signed a Memorandum of Understanding with ILO–IPEC in 1992, introducing a country programme on the elimination of child labour. It also notes that the Government developed a Time-bound Programme (TBP) in 2004 targeting the immediate elimination of the worst forms of child labour, and a National Policy on Child Labour in 2006. The Committee further notes that, within the context of the ILO–IPEC project “Building the Foundations for Eliminating the Worst Forms of Child Labour in Anglophone Africa” (Technical Progress Report, September 2005), a total of 453 children (216 girls and 237 boys) were withdrawn from the worst forms of child labour and supported to undergo skills training. According to the ILO–IPEC Technical Progress Report on sub-regional programme on Prevention, Withdrawal and Rehabilitation of Children Engaged in Hazardous Work in Commercial Agriculture in Eastern Africa (COMAGRI), 2004, a total of 2,363 children (1,069 girls and 1,294 boys) have been withdrawn from hazardous labour and placed in primary schools, as well as in vocational training facilities. While noting the efforts made by the Government to combat child labour, the Committee expresses serious concern at the situation of children under 16 years of age who are compelled to work in the country. The Committee, therefore, strongly encourages the Government to step up its efforts to progressively improve the situation of children under the age of 16 years who are compelled to work in Kenya. It also requests the Government to provide information on the National Policy on Child Labour and on the implementation of the National Plan of Action on Elimination of Child Labour and on the results achieved in terms of the progressive elimination of child labour. Furthermore, the Committee once again requests the Government to provide detailed information on the manner in which the Convention is applied in practice, as required under Part V of the report form, for instance, extracts from official reports, statistics and information on inspection visits made and contraventions reported.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee takes note of the Government’s report as well as of the detailed discussion which took place at the Conference Committee on the Application of Standards in June 2006. The Committee notes that the Government’s report contains no reply to its previous comments. It is therefore bound to repeat its previous observation, which read as follows:

Article 2, paragraph 1, of the Convention. Scope of application. 1. Branches of economic activity covered by the Convention. The Committee had previously noted that, according to section 25(1) of the Employment Act, the prohibition on employing children (i.e. a person under 16 years according to section 2 of the Act) is limited to work performed in industrial undertakings. It had noted that the Employment Act of 1976 (Chapter 226) and the Employment Act (Children) Rules of 1977, were being revised so as to bring the national legislation in line with the requirements of ILO Conventions. The Committee had hoped that the amended legislation would extend the application of the minimum age for admission to employment or work to all sectors of the economy. The Committee notes the Government’s information that the draft Employment Bill has extended the application of the minimum age for admission to employment to all sectors of the economy. It accordingly asks the Government to provide information on the progress made in adopting the amended version of the Employment Bill and to supply a copy of it as soon as it has been adopted.

2. Unpaid work. The Committee had previously noted that section 10(5) of the Children Act, 2001, defines the term “child labour” as any situation where a child provides labour in exchange for payment. Therefore, unpaid workers do not benefit from the protection laid down in the Children Act. The Committee had also noted the Government’s indication that 78 per cent of children (according to the 1998–99 Child Labour Report, published by the Central Bureau of Statistics of the Ministry of Finance and Planning in June 2001) were working for free in family agricultural activities and business enterprises during school holidays and after school. The Committee had requested the Government to take the necessary measures to ensure that children working for free in family agricultural activities and business enterprises were entitled to the protection afforded by the Convention, notably by amending the definition of child labour contained in section 10(5) of the Children Act. The Committee notes the Government’s indication that it intends to harmonize all legislation dealing with children and child labour to conform to the provisions of Conventions Nos 138 and 182. It hopes that the necessary amendments will soon be adopted.

Article 2, paragraph 3. Age of completion of compulsory schooling. The Committee had previously noted that, under section 7(2) of the Children Act, every child shall be entitled to free basic education which shall be compulsory. It had also noted that according to the Child Labour Report 1998-99 and the “Child labour policy”, primary education is compulsory from 6 to 13 years of age. The Committee had further noted the Government’s statement that the draft legislation on compulsory schooling which would address the gap between the age of completion of compulsory schooling (14 years of age) and the minimum age for admission to employment or work (16 years of age), was being prepared. It had requested the Government to provide a copy of the text fixing the age of completion of compulsory schooling. The Committee notes that the Government is committed to the implementation of free primary education for all children. It also notes that, the draft Employment Bill and the Children Act are in agreement over a definition of a child, described as a person under the age of 18 years. However, it notes the Government’s indication that there is no text that specifically fixes the age of completion of compulsory schooling. The Committee requests the Government to indicate whether it is envisaged to adopt legislation which would fix the age of completion of compulsory schooling at 16.

Article 3, paragraph 2. Determination of hazardous work. In its previous comments, the Committee had noted that section 10(1) of the Children Act, provides that every child under 18 shall be protected from economic exploitation and any work that is likely to be hazardous, or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development. The Committee had reminded the Government that, by virtue of Article 3, paragraph 2, of the Convention, the types of work or employment considered to be hazardous shall be determined in the national legislation after consultation with the organizations of employers and workers concerned, where such exist. It had hoped that the list of types of hazardous work would be adopted rapidly so as to bring the national legislation in line with the Convention. The Committee notes the Government’s information that it has developed a draft list of hazardous work in consultation with social partners and stakeholders. The list will be reviewed and presented to stakeholders for validation. The Committee asks the Government to provide a copy of the list of types of hazardous work as soon as it has been adopted.

Article 3, paragraph 3. Admission to hazardous work as from 16 years of age. The Committee had previously noted that section 10(4) of the Children Act provides that the minister shall make regulations in respect of periods of work and establishments where children aged at least 16 years may work. It had requested the Government to indicate whether such regulations had been issued by the competent minister and, if so, to provide a copy. The Committee notes the Government’s information that the competent minister has issued regulations referred to in section 10(4) of the Children Act, which is an act of Parliament. It once again asks the Government to provide a copy of these regulations.

Article 6. Apprenticeship. The Committee had previously noted that section 25(2) of the Employment Act, 1976, exempts any child employed in an industrial undertaking under a deed of apprenticeship from the provisions on the minimum age for admission to employment. It had also noted that, by virtue of section 8(3) of the Industrial Training Act (Chapter 237), a minor (i.e. a person under 15 years of age according to section 2 of the Act) may enter into apprenticeship with the authorization of his or her parents or guardian or, in the absence of such authorization, of a district officer or a labour officer. Therefore, there appeared to be no provisions in the national legislation that set a minimum age for entry into apprenticeship. The Committee had recalled that, by virtue of Article 6 of the Convention, only work done by persons of at least 14 years of age within the context of a programme of training or vocational guidance in enterprises is excluded from the scope of this Convention. It had hoped that the necessary amendments would be adopted so as to bring the legislation in line with the Convention. The Committee notes the Government’s indication that the Government has undertaken amendments to the Industrial Training Act (Chapter 237) in order to bring the legislation into conformity with the Convention. The Committee requests the Government to indicate whether these amendments have come into force and, if so, to provide a copy of the amended Industrial Training Act.

Article 7, paragraph 1. Admission to light work. In its previous comments, the Committee had noted that under section 3(1) of the Employment (Children) Rules, 1977, children may be permitted to work with the written permission of an authorized officer except in bars, hotels, restaurants or clubs where intoxicating liquors are sold or anywhere as a tourist guide. Employment in such places will be accepted if the Labour Commissioner has consented in writing and the child is in possession of a copy of such consent (section 3(1)). The Committee had recalled that, by virtue of Article 7, paragraph 1, of the Convention, only children from 13 years of age may be permitted to undertake light work which is not likely to be harmful to their health or development; and not such as to prejudice their attendance at school, or their participation in vocational training programmes. It had urged the Government to indicate the measures taken or envisaged to ensure that light work carried out pursuant to section 3(1) of the Employment (Children) Rules, 1977 may only be performed by children of at least 13 years of age. The Committee notes the Government’s indication that this issue has been taken into consideration in the process of reviewing the legislation. It hopes that the necessary amendments will soon be adopted.

Article 7, paragraph 3. Determination of light work. The Committee had previously reminded the Government that, by virtue of Article 7, paragraph 3, of the Convention, the competent authority shall determine the activities in which employment or work may be permitted as part of light work. The competent authority shall also prescribe the number of hours during which, and the conditions in which, such employment or work may be undertaken. The Committee had hoped that the Government would take the necessary measures to ensure that its legislation determines light work activities. The Committee notes that the Government’s report contains no information on this point. It therefore once again requests the Government to indicate the measures taken or envisaged to determine light work activities and to prescribe the number of hours during which, and the conditions in which, such employment or work may be undertaken by young persons of 13 years of age and above, in conformity with the Convention.

Article 8. Artistic performances. In its previous comments, the Committee had observed that section 17 of the Children Act provides that a child shall be entitled to leisure, play and participation in cultural and artistic activities. However, it had noted that national legislation does not provide for permits to be granted when children participate in cultural artistic performances. The Committee had drawn the Government’s attention to Article 8 of the Convention, which lays down that after consultation with the organizations of employers and workers concerned, the competent authority may, by permits granted in individual cases, allow exceptions to the prohibition of employment or work provided for in Article 2 of this Convention, for such purposes as participation in artistic performances. Permits so granted shall limit the number of hours during which, and the conditions in which, such employment or work is allowed. The Committee had requested the Government to indicate the measures taken or envisaged in this regard. The Committee notes the Government’s indication that this matter will be addressed in the subsidiary legislation, which is being revised. It asks the Government to inform it on the progress made in the revision of national legislation in order to ensure that approval for young persons below 16 years of age to take part in artistic activities is granted in individual cases.

Part V of the report form. Application of the Convention in practice. The Committee notes the Government’s statement that it will endeavour to provide information on the practical application of the Convention including statistical data on employment of children and inspection reports. It hopes that the Government will provide the requested information in its next report.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

Article 2, paragraph 1, of the Convention. Scope of application. Branches of economic activity covered by the Convention. The Committee had previously noted that, according to section 25(1) of the Employment Act, the prohibition on employing children (i.e. a person under 16 years according to section 2 of the Act) is limited to work performed in industrial undertakings. It had noted that the Employment Act of 1976 (Chapter 226) and the Employment Act (Children) Rules of 1977, were being revised so as to bring the national legislation in line with the requirements of ILO Conventions. The Committee had hoped that the amended legislation would extend the application of the minimum age for admission to employment or work to all sectors of the economy. The Committee notes the Government’s information that the draft Employment Bill has extended the application of the minimum age for admission to employment to all sectors of the economy. It accordingly asks the Government to provide information on the progress made in adopting the amended version of the Employment Bill and to supply a copy of it as soon as it has been adopted.

Unpaid work. The Committee had previously noted that section 10(5) of the Children Act, 2001, defines the term "child labour" as any situation where a child provides labour in exchange for payment. Therefore, unpaid workers do not benefit from the protection laid down in the Children Act. The Committee had also noted the Government’s indication that 78 per cent of children (according to the 1998-99 Child Labour Report, published by the Central Bureau of Statistics of the Ministry of Finance and Planning in June 2001) were working for free in family agricultural activities and business enterprises during school holidays and after school. The Committee had requested the Government to take the necessary measures to ensure that children working for free in family agricultural activities and business enterprises were entitled to the protection afforded by the Convention, notably by amending the definition of child labour contained in section 10(5) of the Children Act. The Committee notes the Government’s indication that it intends to harmonize all legislation dealing with children and child labour to conform to the provisions of Conventions Nos. 138 and 182. It hopes that the necessary amendments will soon be adopted.

Article 2, paragraph 3. Age of completion of compulsory schooling. The Committee had previously noted that, under section 7(2) of the Children Act, every child shall be entitled to free basic education which shall be compulsory. It had also noted that according to the Child Labour Report 1998-99 and the "Child labour policy", primary education is compulsory from 6 to 13 years of age. The Committee had further noted the Government’s statement that the draft legislation on compulsory schooling which would address the gap between the age of completion of compulsory schooling (14 years of age) and the minimum age for admission to employment or work (16 years of age), was being prepared. It had requested the Government to provide a copy of the text fixing the age of completion of compulsory schooling. The Committee notes that the Government is committed to the implementation of free primary education for all children. It also notes that, the draft Employment Bill and the Children Act are in agreement over a definition of a child, described as a person under the age of 18 years. However, it notes the Government’s indication that there is no text that specifically fixes the age of completion of compulsory schooling. The Committee requests the Government to indicate whether it is envisaged to adopt legislation which would fix the age of completion of compulsory schooling at 16.

Article 3, paragraph 2. Determination of hazardous work. In its previous comments, the Committee had noted that section 10(1) of the Children Act, provides that every child under 18 shall be protected from economic exploitation and any work that is likely to be hazardous, or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development. The Committee had reminded the Government that, by virtue of Article 3, paragraph 2, of the Convention, the types of work or employment considered to be hazardous shall be determined in the national legislation after consultation with the organizations of employers and workers concerned, where such exist. It had hoped that the list of types of hazardous work would be adopted rapidly so as to bring the national legislation in line with the Convention. The Committee notes the Government’s information that it has developed a draft list of hazardous work in consultation with social partners and stakeholders. The list will be reviewed and presented to stakeholders for validation. The Committee asks the Government to provide a copy of the list of types of hazardous work as soon as it has been adopted. 

Article 3, paragraph 3. Admission to hazardous work as from 16 years of age. The Committee had previously noted that section 10(4) of the Children Act provides that the minister shall make regulations in respect of periods of work and establishments where children aged at least 16 years may work. It had requested the Government to indicate whether such regulations had been issued by the competent minister and, if so, to provide a copy. The Committee notes the Government’s information that the competent minister has issued regulations referred to in section 10(4) of the Children Act, which is an act of Parliament. It once again asks the Government to provide a copy of these regulations.

Article 6. Apprenticeship. The Committee had previously noted that section 25(2) of the Employment Act, 1976, exempts any child employed in an industrial undertaking under a deed of apprenticeship from the provisions on the minimum age for admission to employment. It had also noted that, by virtue of section 8(3) of the Industrial Training Act (Chapter 237), a minor (i.e. a person under 15 years of age according to section 2 of the Act) may enter into apprenticeship with the authorization of his or her parents or guardian or, in the absence of such authorization, of a district officer or a labour officer. Therefore, there appeared to be no provisions in the national legislation that set a minimum age for entry into apprenticeship. The Committee had recalled that, by virtue of Article 6 of the Convention, only work done by persons of at least 14 years of age within the context of a programme of training or vocational guidance in enterprises is excluded from the scope of this Convention. It had hoped that the necessary amendments would be adopted so as to bring the legislation in line with the Convention. The Committee notes the Government’s indication that the Government has undertaken amendments to the Industrial Training Act (Chapter 237) in order to bring the legislation into conformity with the Convention. The Committee requests the Government to indicate whether these amendments have come into force and, if so, to provide a copy of the amended Industrial Training Act.

Article 7, paragraph 1. Admission to light work. In its previous comments, the Committee had noted that under section 3(1) of the Employment (Children) Rules, 1977, children may be permitted to work with the written permission of an authorized officer except in bars, hotels, restaurants or clubs where intoxicating liquors are sold or anywhere as a tourist guide. Employment in such places will be accepted if the Labour Commissioner has consented in writing and the child is in possession of a copy of such consent (section 3(1)). The Committee had recalled that, by virtue of Article 7, paragraph 1, of the Convention, only children from 13 years of age may be permitted to undertake light work which is not likely to be harmful to their health or development; and not such as to prejudice their attendance at school, or their participation in vocational training programmes. It had urged the Government to indicate the measures taken or envisaged to ensure that light work carried out pursuant to section 3(1) of the Employment (Children) Rules, 1977 may only be performed by children of at least 13 years of age. The Committee notes the Government’s indication that this issue has been taken into consideration in the process of reviewing the legislation. It hopes that the necessary amendments will soon be adopted.

Article 7, paragraph 3. Determination of light work. The Committee had previously reminded the Government that, by virtue of Article 7, paragraph 3, of the Convention, the competent authority shall determine the activities in which employment or work may be permitted as part of light work. The competent authority shall also prescribe the number of hours during which, and the conditions in which, such employment or work may be undertaken. The Committee had hoped that the Government would take the necessary measures to ensure that its legislation determines light work activities. The Committee notes that the Government’s report contains no information on this point. It therefore once again requests the Government to indicate the measures taken or envisaged to determine light work activities and to prescribe the number of hours during which, and the conditions in which, such employment or work may be undertaken by young persons of 13 years of age and above, in conformity with the Convention.

Article 8. Artistic performances. In its previous comments, the Committee had observed that section 17 of the Children Act provides that a child shall be entitled to leisure, play and participation in cultural and artistic activities. However, it had noted that national legislation does not provide for permits to be granted when children participate in cultural artistic performances. The Committee had drawn the Government’s attention to Article 8 of the Convention, which lays down that after consultation with the organizations of employers and workers concerned, the competent authority may, by permits granted in individual cases, allow exceptions to the prohibition of employment or work provided for in Article 2 of this Convention, for such purposes as participation in artistic performances. Permits so granted shall limit the number of hours during which, and the conditions in which, such employment or work is allowed. The Committee had requested the Government to indicate the measures taken or envisaged in this regard. The Committee notes the Government’s indication that this matter will be addressed in the subsidiary legislation, which is being revised. It asks the Government to inform it on the progress made in the revision of national legislation in order to ensure that approval for young persons below 16 years of age to take part in artistic activities is granted in individual cases.

Part V of the report form. The Committee notes the Government’s statement that it will endeavour to provide information on the practical application of the Convention including statistical data on employment of children and inspection reports. It hopes that the Government will provide the requested information in its next report.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee takes note of the Government’s report, as well as of the information supplied to the Conference Committee in June 2003, and the detailed discussion which took place thereafter. The Committee requests the Government to provide further information on the following points.

Article 2, paragraph 1, of the Convention. Scope of application. Branches of economic activity covered by the Convention. The Committee had noted that the Government proposed to the task force, which is reviewing the national labour legislation, to extend the provisions on the minimum age for admission to employment or work beyond industrial enterprises to other sectors of the economy. The Committee had recalled that, according to section 25(1) of the Employment Act, the prohibition on employing children (i.e. a person under 16 according to section 2 of the Act) is limited to work performed in industrial undertakings. The Committee notes the Government’s statement that the Employment Act of 1976 (Chapter 226) and the Employment Act (Children) Rules of 1977 are being revised so as to bring the national legislation in line with the requirements of ILO Conventions. The Committee reiterates its hope that the amended legislation will extend the application of the minimum age for admission to employment or work to all sectors of the economy.

Unpaid work. The Committee had noted that section 10(5) of the Children Act, 2001, defines the term "child labour" as any situation where a child provides labour in exchange for payment and that section 2 of the same Act defines "child" as any person under the age of 18 years. The Committee notes the Government’s indication that many children (78 per cent according to the 1998-99 Child Labour Report, published by the Central Bureau of Statistics of the Ministry of Finance and Planning in June 2001) are working for free in family agricultural activities and business enterprises during school holidays and after school. The Committee notes the statement made by the Government representative to the Conference Committee in June 2003, that such work is regarded as part of their upbringing and is considered to be a positive process of growing up, since it did not interfere with the child’s education or moral upbringing. The Government representative acknowledged however that, due to the poverty prevailing in some parts of Kenya, especially in the arid and semi-arid areas, unfortunate situations did occur where children of school age were compelled by their parents or their own economic situation, for example due to HIV/AIDS, to work for their survival. In this connection, he indicated that, in the framework of the ongoing review of the labour legislation, the Government intended to amend section 10(5) of the Children Act, 2001, so as to bring it into line with the provisions of the Convention. The Committee reminds the Government that by virtue of the minimum age specified by it, children under 16 years of age shall not be permitted to work regardless of the type of work performed, and whether it is paid or not, with the exception of light work which can only be carried out under the conditions laid down in Article 7 of the Convention. The Committee once again requests the Government to take the necessary measures to ensure that children working for free in family agricultural activities and business enterprises are entitled to the protection afforded by the Convention, notably by amending the definition of child labour contained in section 10(5) of the Children Act, 2001.

Derogations to the prohibition to employ children. In its previous comments, the Committee had noted that section 3(1) of the Employment (Children) Rules, 1977, allows the employment of children with the prior written permission of an authorized officer, and that the only restrictions are that such employment should not cause the children to reside away from parents without their approval, that permission for work in a bar, hotel, restaurant, etc., needs the consent of the Labour Commissioner and that such a permit should be renewed annually. The Committee had emphasized that such permits are incompatible, not only with the conditions set out in Article 7, paragraph 1, but also with the provisions of Article 2, paragraph 1, of the Convention which are mandatory, as Kenya has not availed itself of any of the flexibility clauses contained in Articles 4 and 5, of the Convention. The Committee had noted that the provisions of section 3(1) of the above Rules undermine the prohibition set out in Article 2, paragraph 1, of the Convention and the provisions of the national legislation establishing the minimum age for admission to employment at 16 years. It was therefore bound to emphasize the fact that no permit should be issued by any person, whether they are parents, guardians or the Labour Commissioner, which have the effect of allowing employment or work: firstly, by persons under 13 years of age, irrespective of the type of work or employment; secondly, for persons between 13 and 15 years of age, unless this is on light work in strict conformity with the conditions set out in Article 7, paragraph 1; and thirdly, for persons of between 16 and 18 years of age on any of the types of employment or work covered by Article 3, paragraph 1, unless this is in strict conformity with the conditions set out in Article 3, paragraph 3. The Committee notes the Government’s statement in its report indicating that the Government has taken careful note of the comments of the Committee of Experts, regarding the issue of permits allowing children of certain ages to work and that the Government is taking the necessary measures to address these concerns. The Committee once again requests the Government to take the necessary measures to ensure that the permits issued under section 3(1) of the Employment (Children) Rules, 1977, are only issued under the conditions outlined above.

Article 2, paragraph 3. Age of completion of compulsory schooling. The Committee had noted that the Ministry of Education was preparing draft legislation to make primary education compulsory. It had also noted that under section 7(2) of the Children Act, 2001, every child shall be entitled to free basic education which shall be compulsory. It had further noted that according to the abovementioned Child Labour Report 1998-99 and the "Child labour policy", primary education is compulsory from 6 to 13 years of age. The Committee notes with interest the information provided by the Government representative to the Conference Committee in 2003 that a truly free and compulsory primary education for all children of school age, with effect from January 2003, was one of the most important developments in the area of protection of children. As a result of the policy on free primary education, for the period between January to May 2003, 1.6 million children who would otherwise have been engaged in child labour are now enrolled in school. The Committee also notes the Government representative’s statement that the age of completion of free and compulsory schooling remains at 16. However, the Committee notes the Government’s statement, in its report, that the draft legislation on compulsory schooling which will address the gap between the age of completion of compulsory schooling (14 years of age) and the minimum age for admission to employment or work (16 years of age), is being prepared. The Committee requests the Government to provide a copy of the text fixing the age of completion of compulsory schooling.

Article 3, paragraph 2. Determination of hazardous work. In its previous comments, the Committee had noted that section 10(1) of the Children Act, 2001, provides that every child shall be protected from economic exploitation and any work that is likely to be hazardous, or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development. The Committee reminds the Government that, by virtue of Article 3, paragraph 2, of the Convention, the types of work or employment considered to be hazardous shall be determined in the national legislation after consultation with the organizations of employers and workers concerned, where such exist. The Government indicates in its report that the social partners will be consulted on the types of work to be prohibited for young persons under 18 years of age during the ongoing review of the national labour legislation by the tripartite task force. The Committee hopes that the list of hazardous work will be adopted rapidly so as to bring the national legislation in line with the Convention.

Article 3, paragraph 3. Admission to hazardous work as from 16 years of age. In its previous comments, the Committee had noted that section 10(4) of the Children Act, 2001, provides that the Minister shall make regulations in respect of periods of work and establishments where children aged at least 16 years may work. The Committee notes the Government’s indication that section 10(4) is included in Part II of the Children Act, 2001, which addresses the protection of children against economic exploitation and any work that is likely to be hazardous. The Committee recalls that the competent authority may authorize, after consultation with the organizations of employers and workers concerned, young persons older than 16 years of age to undertake hazardous work on condition that their health, safety or morals are fully protected and that they receive adequate specific instruction or vocational training in the relevant branch of activity. The Committee therefore requests the Government to indicate whether the regulations referred to in section 10(4) of the Children Act, 2001, have been issued by the competent minister and, if so, to provide a copy. It also requests the Government to indicate the provisions which require that the health, safety and morals of young persons aged 16 to 18 years engaged in these types of work are fully protected and that these young persons have received adequate specific instruction or vocational training in the relevant branch of activity.

Article 6. Apprenticeship. In its previous comments, the Committee had noted that section 25(2) of the Employment Act, 1976, exempts any child employed in an industrial undertaking under a deed of apprenticeship or indentured learnership from the provisions on the minimum age for admission to employment. It had also noted that, by virtue of section 8(3) of the Industrial Training Act (Chapter 237), a minor (i.e. a person under 15 years of age according to section 2 of the Act) may enter into apprenticeship with the authorization of his or her parents or guardian or, in the absence of such authorization, of a district officer or a labour officer. Since no provision in the latter Act sets a minimum age for entry into apprenticeship and no provision in the national legislation determines the age of completion of compulsory schooling, the Committee had noted that authorizations for apprenticeship or training may be granted to children under 14 years of age. The Committee notes the Government’s statement in its report that no provisions set the minimum age for admission to apprenticeship. However, the Government indicates that in practice apprentices have completed primary education. The Government further indicates that the task force, in charge of reviewing the national labour legislation, will address this issue and amend sections 25(2) and 8(3) of the Industrial Training Act (cap. 237) to bring the legislation into conformity with the Convention. The Committee once again recalls in this respect that by virtue of Article 6 of the Convention, only work done within the context of a programme of training or vocational guidance by persons of at least 14 years of age in enterprises is excluded from the scope of this Convention. It therefore hopes that amendments to the Industrial Training Act (cap. 237) will be adopted soon so as to bring the legislation in line with the Convention.

Article 7 , paragraph 1. Admission to light work. In its previous comments, the Committee had noted that under section 3(1) of the Employment (Children) Rules, 1977, children may be permitted to work with the written permission of an authorized officer except in bars, hotels, restaurants or clubs where intoxicating liquors are sold or anywhere as a tourist guide. Employment in such places will be accepted if the Labour Commissioner has consented in writing and the child is in possession of a copy of such consent (section 3(1)). The Committee recalls that, by virtue of Article 7, paragraph 1, of the Convention, children from 13 years of age may be permitted to undertake light work which is not likely to be harmful to their health or development; and not such as to prejudice their attendance at school, or their participation in vocational training programmes. The Committee notes the Government’s indication in its report that it will take the necessary measures on the occasion of the ongoing revision of the labour legislation to bring the relevant laws into conformity with the Convention. The Committee urges the Government to indicate the measures taken or envisaged to ensure that light work may only be performed by children of at least 13 years of age.

Article 7, paragraph 3. Determination of light work. As noted in its previous comments, the Committee reminds the Government that by virtue of Article 7, paragraph 3, of the Convention, the competent authority shall determine the activities in which employment or work may be permitted as part of light work. The competent authority shall also prescribe the number of hours during which, and the conditions in which, such employment or work may be undertaken. The Committee reiterates its hope that the Government will take the necessary measures on the occasion of the revision of the national labour legislation and ensure that its legislation determines light work activities and prescribes the number of hours during which, and the conditions in which, such employment or work may be undertaken by young persons of 13 years of age and above, in conformity with the Convention.

Article 8. Artistic performances. The Committee notes the Government’s statement, in its report that national legislation does not provide for permits to be granted when children participate in cultural artistic performances. The Government further indicates that children take part in extra-curricula school activities and artistic events (such as drama, sports or choirs). However, the Committee observes that section 17 of the Children Act, 2001, provides that a child shall be entitled to leisure, play and participation in cultural and artistic activities. The Committee draws the Government’s attention to Article 8 of the Convention, which lays down that after consultation with the organizations of employers and workers concerned, the competent authority may, by permits granted in individual cases, allow exceptions to the prohibition of employment or work provided for in Article 2 of this Convention, for such purposes as participation in artistic performances. Permits so granted shall limit the number of hours during which, and the conditions in which, such employment or work is allowed. The Committee observes that the Government’s report makes no reference to legislation prescribing a minimum age for artistic performances by children. The Committee recalls that the specified minimum age for admission to employment or work in Kenya is 16 years. The Committee therefore requests the Government to indicate the measures taken or envisaged to ensure that approval for young persons of below 16 years of age to take part in artistic activities is granted in individual cases, and that permits so granted shall prescribe the number and hours during which, and the conditions in which, such employment or work is allowed. The Committee also requests the Government to supply information on the consultations which took place on this subject with the organizations of employers and workers concerned.

Part V of the report form. The Committee had noted the detailed information and statistics provided in the 1998-99 Child Labour Survey, published by the Central Bureau of Statistics of the Ministry of Finance and Planning in June 2001 and in the document entitled; "Child labour policy". It notes with interest that the Government is taking measures to ensure the rehabilitation of street children. The Government indicates that since January 2003, 1,800 street children, mostly aged 16 to 18, have been placed in rehabilitation and vocational training centres. It also notes that the Ministry of Labour and Human Development prepared a report in 2002 entitled: "National Child Labour Policy Towards a Child Labour-free Society". The report aims at identifying the legal statutes that regulate child labour issues and ensuring their effective implementation; analysing the character, nature, size and causes of child labour in order to formulate and implement appropriate programmes of actions; and disseminating information. The Committee notes that the report provides interesting information on the nature of hazardous occupations and major achievements. The Committee asks the Government to continue to provide information on the practical application of the Convention including, for example, statistical data on the employment of children and young persons, extracts from the reports of inspection services and information on the number and nature of contraventions reported.

The Committee notes the Government’s indication that the task force, which is in charge of the revision of the Employment Act 1976 (Chapter 226) and the Employment (Children) Rules 1977, announced that the new legislation would be completed by 2003. The Committee requests the Government to provide information on progress made in enacting or amending the legislation. In this respect, it reminds the Government that it may avail itself of ILO technical assistance to bring its legislation into conformity with the Convention.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

Article 6 of the Convention.  The Committee notes that section 25(2) of the Employment Act, 1976, exempts any child employed under a deed of apprenticeship or learning from the requirements respecting the minimum age for admission to employment. Under the terms of section 8(3) of the Industrial Training Act (Chapter 237), a minor, that is, under the terms of section 2 of the Act, a person under 15 years of age, may enter into apprenticeship with the authorization of his or her parents or guardian or, in the absence of such authorization, of a District Officer or a Labour Officer. In view of the fact that no provision in the latter Act sets a minimum age for entry into apprenticeship and that no provision in the national legislation determines the age of completion of compulsory schooling, it appears that authorizations for apprenticeship or training may be granted to children under 14 years of age. The Committee recalls in this respect that, under the terms of this provision of the Convention, work done within the context of a programme of training or vocational guidance by persons of at least 14 years of age in enterprises is excluded from the scope of this Convention. It therefore requests the Government to indicate whether there are provisions setting the minimum age for entry into apprenticeship at 14 years.

Article 8. The Committee notes that section 17 of the Children Act, 2001, provides that a child shall be entitled to leisure, play and participation in cultural and artistic activities. The Committee requests the Government to indicate which provisions of the national legislation, if such exist, provide that participation in activities such as artistic performances shall be subject to permits granted in individual cases by the competent authority, after consultation with the organizations of employers and workers concerned, and that such permits shall limit the number of hours during which and prescribe the conditions in which employment or work is allowed.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes with interest the Children Act, 2001, section 2 of which defines "child" as any human being under the age of 18 years. It notes that the second part of the Act, entitled "Safeguards for the rights and welfare of the child", addresses the protection of the child against economic exploitation and any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development (section 10(1)); the protection of the child against recruitment and participation in armed conflicts (section 10(2)); the protection of the child against any other form of exploitation including sale, trafficking or abduction by any person (section 13(1)); and the protection of the child against sexual exploitation and use in prostitution (section 15). The Committee notes that, under the terms of section 20 of the Act, where any person wilfully or as a consequence of culpable negligence infringes any of the provisions of sections 5 to 19 such person shall be liable to imprisonment not exceeding 12 months or to a fine of 50,000 shillings, or both. The Committee also notes that, by virtue of section 22(1) of the Act, if any person alleges that any of the provisions of sections 4 to 19 (inclusive) of the Act has been, is being or is likely to be contravened in relation to a child, then without prejudice to any other action that is lawfully available in this respect, that person may apply to the High Court for redress on behalf of the child.

The Committee also notes the ratification by Kenya on 7 May 2001 of the Worst Forms of Child Labour Convention, 1999 (No. 182).

With reference to its previous comments, the Committee notes the information provided by the Government representative to the Committee on the Application of Standards of the Conference in 2001 that the Government had given up its draft amendment to section 2 of the Employment Act, 1976, to define the term "child" as a person under 15 years, instead of under 16 years of age, which would have had the effect of lowering the minimum age for admission to employment or work to 15 years. It notes that in its last report the Government confirms that it is no longer considering this amendment and that it will maintain the legislation in conformity with the Convention.

In its previous observation, the Committee noted the information provided by the Government that the Employment Act of 1976 (Chapter 226) and the Employment (Children) Rules of 1977 would be revised in the framework of a general revision of the labour legislation. The Committee once again requests the Government to provide information on the progress made with this revision, and on the other points that it raised.

Article 2, paragraphs 1 and 3, of the Convention. 1. The Committee notes, with regard to the extension of the minimum age for admission to employment or work beyond industrial enterprises, that the Government representative informed the Conference Committee on the Application of Standards in 2001 that the Task Force established to review 23 chapters of the labour legislation would duly take into account this suggestion and that the Task Force would be given up to the end of December this year at the latest to complete its work. The Committee notes that in its last report the Government states that it has made proposals to the Task Force with a view to extending the legislation respecting the minimum age for admission to employment or work to other sectors of the economy. The Committee recalls that it has been drawing the Government’s attention for many years to the fact that section 25(1) of the Employment Act, read in conjunction with section 2 of the Act, limits the application of the minimum age for admission to employment or work to industrial enterprises. It therefore expresses the firm hope that the Government will be in a position to provide information in its next report on the measures taken by the Task Force to extend the application of the minimum age for admission to employment or work to all sectors of the economy.

2. In its previous comments, the Committee noted that the Ministry of Education was preparing draft legislation to make primary education compulsory. The Committee notes that in its last report the Government states that this draft legislation has still not been adopted. It notes that section 7(2) of the Children Act, 2001, provides that every child shall be entitled to free basic education which shall be compulsory, in accordance with article 28 of the United Nations Convention on the Rights of the Child. The Committee notes that these provisions do not specify precisely the age at which compulsory schooling ceases. It notes the information contained in the 1998/1999 Child Labour Report, published by the Central Bureau of Statistics of the Ministry of Finance and Planning in June 2001, and in the document entitled "Child labour policy", provided in the same year, indicating that compulsory primary school is for children from 6 to 13 years of age. There accordingly appears to be a difference of one or more years in Kenya between the age of completion of compulsory schooling (13 or 14 years of age) and the minimum age for admission to employment or work (16 years). The Committee recalls that, under Paragraph 4 of the Minimum Age Recommendation, 1973 (No. 146), "full-time attendance at school or participation in approved vocational orientation or training programmes should be required and effectively ensured up to an age at least equal to that specified for admission to employment in accordance with Article 2 of the Minimum Age Convention, 1973." In this context, the Committee requests the Government to provide information on the progress achieved with the above draft legislation, indicating the age of completion of compulsory schooling.

3. The Committee notes that section 10(5) of the Children Act, 2001, defines the term "child labour" as any situation where a child provides labour in exchange for payment. It notes that according to the 1998/1999 Child Labour Report referred to above, most of the children who work, or 78.7 per cent, work in family agricultural activities or enterprises and are not paid. The majority of children who work are therefore excluded from the definition of child labour contained in section 10(5) of the Children Act, 2001. Furthermore, according to the same report, 1.6 per cent of children work on their own account. The Committee therefore requests the Government to take the necessary measures to secure to these children the protection afforded by the Convention by amending the definition of child labour contained in section 10(5) of the Children Act, 2001.

Article 2, paragraph 1, and Article 3. 4. The Committee noted in previous comments, under Article 7, that section 3(1) of the Employment (Children) Rules, 1977, allows the employment of children with the prior written permission of an authorized officer, and that the only restrictions are that such employment should not cause the children to reside away from parents without their approval, that permission for work in a bar, hotel, restaurant, etc., needs the consent of the Labour Commissioner and that such permit should be renewed annually. The Committee wishes to emphasize that such permits are incompatible, not only with the conditions set out in Article 7, paragraph 1, but also with the provisions of Article 2, paragraph 1, which are mandatory, as Kenya has not availed itself of any of the flexibility clauses contained in Articles 4 and 5. The Committee notes that the provisions of section 3(1) of the above Rules undermine the prohibition set out in Article 2, paragraph 1, of the Convention and the provisions of the national legislation establishing the minimum age for admission to employment at 16 years. It is therefore bound to emphasize the fact that no permit should be issued by any person, whether they are parents, guardians or the Labour Commissioner, which have the effect of allowing employment or work: firstly, by persons under 13 years of age, irrespective of the type of work or employment; secondly, for persons between 13 and 15 years of age, unless this is on light work in strict conformity with the conditions set out in Article 7, paragraph 1; and thirdly, for persons of between 16 and 18 years of age on any of the types of employment or work covered by Article 3, paragraph 1, unless this is in strict conformity with the conditions set out in Article 3, paragraph 3. The Committee therefore requests the Government to take the necessary measures to repeal the above provisions as soon as possible.

Article 7. 5. The Committee recalls that, with regard to light work: firstly, Article 7, paragraph 1, only provides for the possibility of admitting young persons of at least 13 years of age to light work, whereas the Employment (Children) Rules, 1977, do not limit the age of children who may thus be employed; secondly, Article 7, paragraphs 1 and 3, only authorize the employment of children who have not reached the general minimum age on light work (that is work which is not likely to be harmful to their health or development, nor to prejudice their attendance at school or their capacity to benefit from the instruction received), and that such work must be determined by the competent authority, whereas the above Rules do not limit the employment of children under the legal age to light work, but only refer to the conditions mentioned in paragraph 4 above; thirdly, also under Article 7, paragraph 3, the competent authority shall prescribe the number of hours during which and the conditions in which such employment or work may be undertaken. The Committee therefore expresses the firm hope that the Government will take the necessary measures on the occasion of the revision of the national labour legislation to bring its laws and regulations into full conformity with the Convention on each of these points.

Article 3. 6. The Committee has noted above that section 10(1) of the Children Act, 2001, provides that every child shall be protected from economic exploitation and any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development. However, the Committee notes that despite its reiterated comments for many years, and despite the fact that the Government admitted in its 1990 report the need to determine, after consultation with the organizations of employers and workers concerned, the types of employment or work covered by Article 3, paragraph 1, no measure has yet been taken to this effect. It therefore expresses the firm hope that the tripartite national Task Force, after consultations with the organizations concerned, will determine the types of work to be prohibited for young persons under 18 years of age, in accordance with the Government’s previous indications. The Committee also notes that section 10(4) of the Children Act, 2001, provides that the Minister shall make regulations in respect of periods of work and legitimate establishments for such work by children above the age of 16 years. The Committee requests the Government to indicate whether the work referred to consists of hazardous work, as it seems to imply. If so, it requests the Government to indicate whether the regulations referred to in section 10(4) of the Children Act, 2001, have been issued by the competent Minister and, if so, to provide a copy. It also requests the Government to indicate the provisions which require that the health, safety and morals of young persons between the ages of 16 and 18 years engaged in these types of work are to be fully protected and that the young persons must have received adequate specific instruction or vocational training in the relevant branch of activity, in accordance with Article 3, paragraph 3.

Part V of the report form. 7. The Committee notes with interest the detailed information contained in the 1998/1999 Child Labour Survey, published by the Central Bureau of Statistics of the Ministry of Finance and Planning in June 2001, and in the document entitled "Child labour policy". It notes the statistics reporting 1.9 million children between the ages of five and 17 years who work, including children working without pay. It notes that, according to the statistics, the majority of working children are between the ages of ten and 14 years (43.6 per cent). The majority of working children have not completed primary education (76.8 per cent). Of children who work, 38.5 per cent work more than 14 hours a week, and 25.6 per cent work between 25 and 41 hours a week. A total of 78.7 per cent of working children are in family farms and enterprises and are not paid, although 18.5 per cent are paid and 1.6 per cent work on their own account. The majority of children who work are in agriculture, fishing and domestic service. The Committee notes the information on the children engaged in hazardous work (fishing and construction). It notes that 1.3 million working children do not attend school and that 588,400 combine school and work. The Committee requests the Government to continue providing information on the application of the Convention in practice.

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

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the information supplied by the Government in its report. It notes in particular that the Employment Act (chapter 226) and the Employment (Children) Rules of 1977 will be revised in the framework of a general revision of labour legislation which will start in the near future with the assistance of the ILO and in consultation with the social partners. The Committee also notes that a Bill on children has been submitted to Parliament and is currently under examination. It requests the Government to supply information on the progress made in relation to draft general revision of the labour legislation as well as information on the work of Parliament in relation to the Bill on children.

The Committee requests the Government to supply further information on the following points.

Article 2 of the Convention.  In its previous comments, the Committee has noted that a task force, appointed to review labour legal instruments, had decided to amend section 2 of the Employment Act so as to define a "child" as a person under 15 instead of 16 years of age, which would have the result of lowering the minimum age for employment or work under the Employment Act to 15 years. The Committee once again recalls that the Government specified 16 years as the minimum age for admission to employment or work under Article 2, paragraph 1,of the Convention at the time of ratification. If the Government amends the Employment Act as indicated, the above section would no longer be in conformity with the provisions of the Convention. Indeed, by virtue of Article 2, paragraph 1, member States, by ratifying the Convention, undertake the obligation to take the necessary measures in order to ensure that no person under the age specified is admitted to employment or work in any occupation. In addition, the Committee emphasizes that, in conformity with Article 1, member States undertake, when ratifying the Convention, the obligation to raise progressively the minimum age for admission to employment or work and not to reduce this age. The Committee therefore once again requests the Government to take the necessary measures in order to maintain the legislative conformity with the Convention.

For many years, the Committee has been noting that, under the terms of section 25(1) of the Employment Act, read in conjunction with section 2 of the Act, the minimum age for admission to employment or work only applies to industrial enterprises. In its previous reports, the Government had indicated that it intended to amend the Act. To this effect, the Committee noted in its previous comments that the draft amendment to the Employment Act did not contain any provision to extend the application of the minimum age for admission to employment or work to all sectors of the economy. Moreover, it noted that a task force appointed to review the labour legal instruments was continuing its work. Consequently, the Committee once again hopes that this special group will take the necessary measures to extend the application of the minimum age for admission to employment or work to all sectors of the economy. It once again asks the Government to supply information on any progress made in this respect.

The Committee noted previously that the Ministry of Education was preparing draft legislation to make primary education compulsory. The Committee again expresses the hope that the Government will provide information on any developments in this respect.

Article 3.  In its previous comments, the Committee noted that the national tripartite committee which is in charge of giving advice on the execution of the policy was in the process of constitution and that it would consult the organizations of employers and workers, as well as determine the types of work to be prohibited for minors less than 18 years because of the harmfulness to their health, their security or their morals. Therefore, the Committee again expresses its hope that this committee will take the necessary measures to ensure the respect for the principles of the Convention in the near future. It also asks the Government to supply information on any progress made in this regard.

Article 7.  The Committee previously noted the Government’s statement that it did not consider it time yet to pass legislation on the employment of children under 15 on light work. It recalls, however, that section 3 of the Employment (Children) Rules of 1977 already allows the employment of children with a prior written permission of an authorized officer. The only restrictions are that such employment should not cause the child to reside away from parents without approval, that permission for work in a bar, hotel, restaurant, etc., needs the consent of the Labour Commissioner, and that such permits should be annually renewed. The Committee again points out that this section of the Rules is not in conformity with the Convention in several aspects: firstly, whilst the Convention allows, under Article 7, paragraph 1, the admission to light work of persons only from 13 years of age, the above Rules do not limit the age of the children that may be employed; secondly, Article 7, paragraphs 1 and 3, permits the employment of children under the general minimum age only in regard to light work (that is, work which is not likely to be harmful to their health or development and not such as to jeopardize their school attendance or their capacity to benefit from the instruction received), which should be determined by the competent authority. The above Rules do not even limit such employment of under-age children to light work, but only provide for the abovementioned conditions; and thirdly, also under Article 7, paragraph 3, of the Convention, the competent authority should prescribe the number of hours and the conditions of such employment or work. The Committee hopes that the Government will take the necessary measures, during the national social legislation review, in order to bring the legislation into conformity with the Convention.

The Committee hopes that the amendment to the Employment Act and the Employment (Children) Rules of 1977 will bring national legislation into conformity with the Convention on the aforementioned points.

Article 1 of the Convention in conjunction with Part V of the report form.  With reference to its previous comments, the Committee notes the information provided by the Government according to which it obtained funding from an International Programme on the Elimination of Child Labour (IPEC) in June 2000 which will make it possible to finalize the Government’s draft child labour policy. In this respect, the Government indicated that the final version of this draft child labour policy will be transmitted to the Office as soon as it is adopted. The Committee also notes that a national study on child labour is presently at its final preparatory stage and that it will be provided to the Office as soon as possible. The Committee, therefore, hopes to receive in the near future a copy of the final version of the draft child labour policy as well as a copy of the above national study.

The Committee also notes the documents attached to the Government’s report and, in particular, the draft child labour policy and the report on the implementation of the national action plan envisaged in the context of the IPEC programme.

With regard to the national action plan under the IPEC programme, the Committee notes that the Minister of Education has created, in cooperation with UNICEF, several programmes intended to improve the education system. The objectives of these programmes were to make primary education compulsory and free of charge to everyone and to allow the reintegration into the education system of the children already working. The Committee notes with interest that in total 1,376 children received a professional training and that 3,475 children have been reintegrated in the education system. Noting the efforts accomplished by the Government, the Committee is bound to express its concern at the statistics contained in the draft child labour policy. Indeed, according to the Government’s estimates, about 3.5 million children between 6 and 14 years of age do not attend school and work in different sectors of the economy. In addition, according to the UNICEF estimates, 850,000 children are working in the streets. The Committee hopes that the Government will take the necessary measures as soon as possible to resolve this grave problem and will provide information concerning the measures taken.

According to the information contained in the national action plan, the Committee notes that a child labour unit has been established in the Ministry of Employment, Development and Manpower in order to take child labour issues into account in Government policies and programmes. The Committee asks the Government to provide information concerning the functioning of the above unit.

The Committee notes that in the framework of IPEC, the national action plan reforms of the inspection system have taken place to improve controls over child labour. Thus, 8,074 children have been found working in commercial services, the agricultural sector, domestic works, construction and building, and forestry. A reduction in the number of children working in coffee plantations has been noted. The Committee notes that, by virtue of the above plan, studies have been made by the Health Director and by the security services of 605 enterprises in order to identify the children working in dangerous occupations; out of the 4,294 children identified, 2,013 children have been removed from such activities. The Committee requests the Government to continue to provide information on this subject.

The Committee further notes the efforts made by the Government for the collection of data on child labour. It also notes that an inquiry is currently being carried out on child labour in the whole country by the Central office of Statistics. The Committee requests the Government to transmit to the Office the results of the inquiry carried out by the Central Office of Statistics.

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

Article 2 of the Convention. The Committee notes the Government's indication in its report that a bill is being prepared by the Ministry of Education to introduce legislation making primary education compulsory. It asks the Government to continue to supply information on developments in this regard.

With reference to its previous comments, the Committee notes that the proposed Act amending the Employment Act does not contain any provisions to extend the application of the minimum age for employment to all sectors of the economy. However, it also notes the statement of the Government in its report that the task force being appointed to review labour legal instruments is still continuing its work. The Committee hopes that the task force will take necessary measures to expand the application of the minimum age for employment to all sectors of economy. It asks the Government to continue to supply information on any progress made in this respect.

Article 3. The Committee notes the information provided in the Government's report that a National Tripartite Commission to advise on policy implementation is being established and that consultation with the employers' and workers' organizations will be made by this Commission to determine the types of work that are prohibited for young persons under 18 years of age as being prejudicial to their health, safety or morals. Noting the Government's recognition expressed in the draft child labour policy (6.0 policy objectives) that it is essential to remove and prohibit children from engaging in occupations which are hazardous to their health, safety and welfare, the Committee hopes that this Commission will be appointed and will take necessary measures to ensure the requirements of the Convention in the near future. It also asks the Government to continue to supply information in this regard.

Article 7. The Committee previously noted the Government's statement that it did not consider it time yet to pass legislation on the employment of children under 15 on light work. It recalls however that section 3 of the Employment (Children) Rules of 1977 already allows the employment of children with a prior written permission of an authorized officer. The only restrictions are that such employment should not cause the child to reside away from parents without approval, that permission for work in a bar, hotel, restaurant, etc. needs the consent of the Labour Commissioner, and that such permits should be annually renewed. The Committee again points out that this section of the Rules is not in conformity with the Convention on several aspects: firstly, whilst the Convention allows, under Article 7(1), the admission to light work of persons only from 13 years of age, the above Rules do not limit the age of the children that may be employed; secondly, Article 7(1) and (3) permits the employment of children under the general minimum age only in regard to light work (that is, not likely to be harmful to their health or development and not such as to prejudice their school attendance or their capacity to benefit from the instruction received), which should be determined by the competent authority. The above Rules do not even limit such employment of under-age children to light work, but only provide for the above-mentioned conditions; and thirdly, also under Article 7(3) of the Convention, the competent authority should prescribe the number of hours and the conditions of such employment or work. In the absence of a reply to this comment in the Government's report, the Committee requests the Government to indicate any measures taken or envisaged to bring the national legislation into line with the Convention also regarding these points.

Application of the Convention in practice. The Committee notes the Government's intention to carry out a national survey on child labour (5.2 of the draft child labour policy). It requests the Government to supply information on such a survey when it is carried out.

The Committee also notes the information contained in the attached draft child labour policy that, according to the estimation, there are about 3 million children working in different sectors of the economy. However, it notes that no information on the permissions granted under section 3 of the Employment (Children) Rules of 1977, is communicated. The Committee asks the Government to continue to provide information on the application in practice of the national legislation that gives effect to the provisions of the Convention, including in particular information on the permissions granted under section 3 of the Employment (Children) Rules of 1977.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

Minimum age for employment or work

Further to its previous comments, the Committee notes from the Government's report that a task force appointed to review legal instruments on labour has agreed to amend section 2 of the Employment Act to define a "child" as a person under 15 instead of 16 years, and that this would result in lowering the minimum age for employment or work under the Employment Act to 15 years. The Committee recalls that Kenya specified 16 years as the minimum age for admission to employment or work under Article 2(1) of the Convention at the time of ratification. The Committee draws the Government's urgent attention to the serious discrepancy between the national legislation and the provisions of the Convention which the proposed amendment of the Employment Act would cause: Article 2(2) allows ratifying States to declare a minimum age higher than that initially specified but permits in no case the lowering of the declared minimum age. Member States, by ratifying the Convention, undertake the obligation by virtue of Article 1 to raise progressively the minimum age for admission to employment or work. The Committee requests the Government to indicate any measures taken or envisaged to maintain the legislative conformity with the Convention.

National policy on child labour

The Committee notes the draft child labour policy, attached to the Government's report, to ensure the effective abolition of child labour with the help of the International Programme on the Elimination of Child Labour (IPEC). It also notes that this draft has been forwarded to the National Assembly for consideration and adoption. The Committee requests the Government to continue to supply information on developments in this draft child labour policy as well as on concrete measures taken and their effect on the application of the provisions of the Convention.

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

1. Article 2 of the Convention. (1) The Committee notes with interest the Government's statement that the Ministry of Education is intending to introduce legislation on compulsory primary education. It asks the Government to continue to supply information on developments in this regard.

(2) The Committee notes, however, that the Government indicates, at the same time, that proposals have been made to the competent authority to amend section 2 of the Employment Act to define a "child" as a person under 15 instead of 16 years. This would result in lowering the minimum age for employment or work under the Employment Act. The Committee would draw the Government's urgent attention to the provisions of Article 2(2) of the Convention which allows ratifying States to declare a minimum age higher than that initially specified, but which does not permit a change towards a lower minimum age. Therefore, the minimum age of 16 years having been declared at the time of ratification, the proposed amendment would cause a serious discrepancy between the national legislation and Article 2(1) of the Convention. The Committee requests the Government to indicate any measures taken or envisaged to maintain the legislative conformity with the Convention.

(3) The Committee notes the Government's statement that the scope of section 25(1), which fixes the minimum age for employment would be extended to all sectors of the economy by the proposed amendment mentioned above. It asks the Government to continue to supply information on any progress made in this respect.

2. Article 3. The Committee recalls that under this provision of the Convention, the Government has the obligation to determine, after consultation with the employers' and workers' organizations, the types of work that are prohibited for young persons under 18 years of age as being prejudicial to their health, safety or morals. It notes that, although the Government agrees to this necessity, no such consultations have been made to date. The Committee hopes that the Government will soon be able to report the progress made in this regard.

3. Article 7. The Committee notes the Government's statement that it does not consider it time yet to make legislation on the employment of children under 15 on light work. It recalls however that section 3 of the Employment (Children) Rules of 1977 already allows the employment of children with a prior written permission of an authorized officer. The only restrictions are that such employment should not cause the child to reside away from parents without approval, that permission for work in a bar, hotel, restaurant, etc. needs the consent of the Labour Commissioner, and that such permits should be annually renewed. The Committee points out that this section of the Rules is not in conformity with the Convention on several aspects: firstly, the Convention allows, under Article 7(1), the admission to light work of persons only from 13 years of age, while the above Rules do not limit the ages of the children that may be employed; secondly, Article 7(1) and (3) permits the employment of children under the general minimum age only in regard to light work (that is, not likely to be harmful to their health or development and not such as to prejudice their school attendance or their capacity to benefit from the instruction received), which should be determined by the competent authority, while the above Rules do not even limit such employment of under-age children to light work, but only provide for the above-mentioned conditions; and thirdly, also under Article 7(3) of the Convention, the competent authority should prescribe the number of hours and the conditions of such employment or work. The Committee therefore hopes that the national legislation will be brought into line with the Convention also regarding these points.

4. Application of the Convention in practice. The Committee also asks the Government to provide information on the application in practice of the national legislation that gives effect to the provisions of the Convention. Please include in particular information on the permissions granted under section 3 of the Employment (Children) Rules of 1977, pending its modifications requested under paragraph 3 above.

[The Government is asked to report in detail in 1997.]

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

With reference to its previous general observation, the Committee notes the Government's indication that it is formulating a national policy to ensure the effective abolition of child labour with the help of the International Programme on the Elimination of Child Labour (IPEC). It further notes that the proposed actions include inter alia the establishment of a national tripartite commission to advise on policy implementation, awareness raising, the provision of free and compulsory basic education. The Committee requests the Government to continue to supply information on developments in the formulation of such a national policy as well as on concrete measures taken and their effect on the application of the provisions of the Convention.

A direct request is also being addressed to the Government concerning the conformity of its legislation with the Convention.

[The Government is asked to report in detail in 1997.]

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

Article 2 of the Convention. (1) The Committee recalls that the Government specified, in accordance with Article 2(1) of the Convention, a minimum age of 16 years for admission to employment or work. It has noted that the prohibition of the employment of children under the age of 16, by virtue of section 25(1) of the Employment Act, 1976, applies only to industrial enterprises. The Committee has therefore been requesting the Government to extend such prohibition to employment and work in any occupation, in order to bring the legislation into line with the Convention.

The Committee notes the Government's reference to section 26 of the Employment Act, which stipulates that children should not be employed otherwise than under verbal contracts. The Committee points out that this provision does not set forth any restriction on the employment of children under verbal contract.

The Committee is bound to reiterate its hope that the Government will take the necessary measures in the light of Article 5 to give full effect to this Article of the Convention.

(2) The Committee notes the explanation of the Government concerning the power of the Minister to make, by order, exemptions from provisions of the Employment Act, under its section 1(2)(d). It hopes that the Government will indicate, in its future reports, any such exemptions made regarding the minimum age provisions.

Article 3. The Committee notes that the Government agrees to the necessity to determine, after consultation with the employers' and workers' organizations, the types of work that are prohibited for young persons under 18 years of age as being prejudicial to their health, safety or morals. It hopes that the Government will soon be able to report the progress made in this regard.

Article 7. The Committee notes the Government's statement that it would be difficult to list all the categories of employment or work that would not be prejudicial to the morals, safety and health, and that the proviso to section 3 of the Employment (Children) Rules of 1977 gives effect to Article 7, by leaving the determination to the authorized officer who issues the permit for the employment of children. The Committee points out, firstly, that the Convention allows, under Article 7(1), the admission to light work of persons of 13 to 15 years of age, while the above Rules do not limit the ages of the children that may be employed under the prescribed conditions; secondly, Article 7(3) stipulates that the activities thus allowed as light work (that is, not likely to be harmful to their health or development and not such as to prejudice their school attendance or their capacity to benefit from the instruction received) should be determined by the competent authority and not by an individual officer; and thirdly, also under Article 7(3) of the Convention, the competent authority should prescribe the number of hours and the conditions of such employment or work. The Committee therefore hopes that the national legislation will be brought into line with the Convention also regarding these points.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the information supplied by the Government in its report. It notes the persistence of difficulties in the application of the Convention and suggests that the Government might have recourse to the assistance of the Office to bring its legislation into conformity with the Convention on the points raised in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes the information supplied by the Government in reply to the general direct request. It also notes the information concerning the application of Article 6 of the Convention.

Article 2. In its previous comments, the Committee recalled that the Government specified, in accordance with Article 2, paragraph 1 of the Convention, a minimum age of 16 years for admission to employment or work. Section 25(1) of the Employment Act, 1976, provides that children, defined for the purposes of the Act as minors of 16 years of age, cannot be employed in the industrial enterprises as enumerated restrictively in section 24(2) of the same Act. The Committee notes that the prohibition of the work of children under the age of 16, which applies only to industrial enterprises, ought to be extended to employment and work in any occupation, in order to bring the legislation into line with the Convention.

The Committee notes the Government's statement that this question is already adequately catered for under the Employment (Children) Rules 1977. It notes that the Rules of 1977 were issued under the provisions of section 56, subsection (l)(j) of the Employment Act, 1976, which empowers the Minister of Labour to issue rules to provide for a total prohibition, subject to certain conditions, from employing children in specific activities or occupations and that the rules apply, under section 2, to all types of employment.

The Committee refers to its General Survey of 1981 on minimum age and recalls that the specification of a minimum age for admission to work or employment in an occupation covers both paid and unpaid work. The Committee considers that paid employment is covered by section 2 of the Rules of 1977, subject to the provisions of section 1(2) of the Employment Act of 1976. Consequently, it asks the Government to indicate the measures taken or contemplated to ensure that no person under the age of 16 years shall be admitted to work, even in the absence of a paid employment relationship. It also requests the Government to provide the list of activities or branches of activity which, by virtue of section 1, subsection 2(d) of the Employment Act of 1976, are excluded, by order, from the Act of 1976 as a whole or from any of its provisions, along with a copy of the relevant orders.

Article 3. With reference to its previous comments concerning the absence of any laws or regulations establishing a minimum age of less than 18 years for admission to any type of employment or work which, by its nature or the circumstances in which it is carried out, is likely to jeopardise the health, safety or morals of young persons, the Committee notes that the Government intends to give effect to this Article of the Convention. The Committee once again expresses the hope that the necessary measures will be adopted to determine the types of employment or work prohibited to young persons under 18 years of age, after consultation with the employers' and workers' organisations.

Article 7. The Committee notes from the Government's report that the employment of persons below 16 years of age in the agricultural sector normally takes place during school holidays and is limited to light agricultural work (e.g. picking tea leaves, coffee berries, pyrethrum flowers, etc.). The Committee notes that section 3 of the Rules of 1977, which permits the employment of children under 16 years of age subject to the prior written permission of an authorised officer, does not specify the categories of employment or work which may be authorised, nor the reservations provided for in Article 7, paragraph 1, of the Convention. It hopes that the national legislation will reflect the practice described by the Government by limiting the admission to employment or work of young persons of 13 to 15 years of age to light work, which is not likely to be harmful to their health or development or to prejudice their attendance at school or their capacity to benefit from the instruction received. The Committee asks the Government to provide information on the measures that have been taken or are envisaged to this end.

The Committee requests the Government to take the necessary measures to adopt legislation in the near future that will enable all the provisions of the Convention to be applied. The Government may wish to consider requesting assistance from the International Labour Office in drafting or amending legislation to give full effect to the Convention.

Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

Article 2, paragraphs 1 and 3 of the Convention. Further to its previous direct request, the Committee notes that the Government has abandoned its proposal to amend section 2 of the Employment Act defining a child as a person under the age of 16 years, in conformity with its declaration made in ratifying the Convention. However, in order to apply the Convention fully, the minimum age of 16 years which, at present, only applies to industrial undertakings, should be extended to employment or work in any occupation. The Committee trusts that the Government will indicate the steps taken in this regard.

Article 3. The Committee notes again the Government's statement that young persons under the age of 18 years are normally not admitted to the employment or work covered by this Article. It hopes therefore that the necessary measures will be taken to bring the legislation into conformity with the Convention by determining, after consultation with the organisation of employers and workers concerned, the types of work prohibited to young persons under 18 years of age as being prejudicial to their health, safety or morals, so as to leave no doubt or uncertainty as regards the application of this Article.

Article 6. Noting the Government's explanations and the provisions of the Employment Act (in particular section 25(2)) exempting apprentices or indentured learners from the minimum age of admission to work, the Committee asks the Government to indicate measures taken, or contemplated, in accordance with Article 6, to prohibit such work by persons under the age of 14 years in undertakings.

Article 7. With reference to the Government's previous report indicating that in the agricultural sector employment of persons below 16 years takes place, particularly during the peak season, subject to the approval of the labour officer, the Committee again requests the Government to indicate the measures taken or envisaged to limit the employment of children below the prescribed minimum age to the cases and conditions provided for in Article 7 of the Convention.