Demande directe (CEACR) - adoptée 1992, publiée 79ème session CIT (1992)

The Committee notes the Government's statement in its report dated 31 May 1990 that, in order to bring legislation into conformity with the Convention, the Ministry of Labour has recommended to amend Rule 86 of the Prison Rules so as to exempt persons imprisoned in the circumstances stated in Article 1 of the Convention from the obligation to work. The Committee notes that in its report for the period ending 30 June 1991 the Government declares that discussions on amending legislation to bring it into harmony with the Convention, are continuing.

Referring also to its observation under the Convention, the Committee requests the Government to provide a copy of the provisions introducing party pluralism and repealing the provisions which had introduced a one-party system on 9 June 1982. It also requests the Government to provide information, as well as copies of relevant texts, on any provisions adopted following the above-mentioned amendments which have a bearing on the Convention and in particular those which might have modified the following provisions to which the Committee referred previously:

Article 1 of the Convention. 1. In comments made since 1969 the Committee referred to the effect which various measures taken under emergency powers might have on the observance of the Convention. It noted that certain regulations had been made under section 19(1) of the Kenya Independence Order in Council and Part III of the Preservation of Public Security Act. These regulations empowered the executive or administrative authorities to adopt certain measures which might have a bearing on the application of the Convention, since contraventions thereof could be punished with imprisonment (involving an obligation to perform labour). The Committee noted that the constitutional guarantees relating to personal liberty, freedom of expression, assembly, association and movement, and discrimination were not applicable to these measures. Reference was made to the following provisions:

(a) regulations 3, 4 and 5(1), read together with regulation 15(c), of the Preservation of Public Security (Detained and Restricted Persons) Regulations, 1966, and regulation 22(1) and (4), read together with regulation 31(c), of the North-Eastern Province and Contiguous Districts Regulations, 1966 (powers to issue restriction orders, including restrictions as to residence, movement, association and communication);

(b) regulations 6 and 7(1), read together with regulation 15(c), of the Preservation of Public Security (Detained and Restricted Persons) Regulations, 1966 and regulation 23(1) and (4), read together with regulation 31(c) of the North-Eastern Province and Contiguous Districts Regulations, 1966 (powers of detention);

(c) regulations 3 and 4, read together with regulations 8 and 12 of the Public Security (Control of Movement) Regulations, 1967 (powers to issue movement control orders, containing such conditions as are deemed expedient, applicable to persons defined by their membership in specified tribes);

(d) regulation 15(1) of the North-Eastern Province and Contiguous Districts Regulations, 1966 (powers to require the performance of work or service).

The Government indicated earlier that no orders had been made to revoke the Orders of 20 July 1966 and 1 September 1966 whereby Parts II and III of the Preservation of Public Security Act were brought into operation. The Committee noted that, while section 5 of the Constitution of Kenya Act, No. 5 of 1969 repealed section 19 of the Kenya Independence Order in Council, it provided that any regulations made under the said section 19 and in force immediately before the commencement of the Constitution of Kenya Act were to continue in force and were to be deemed to have been made under section 127 of the revised Constitution, which contains provisions similar to those of the repealed section 19 of the Kenya Independence Order in Council.

The Committee asked the Government to indicate whether a notice had been published under section 127(3) of the revised Constitution to bring to an end the operation of subsections (1) and (2) of that section, and whether Part III of the Preservation of Public Security Act and the above-mentioned regulations had ceased to be in operation.

Referring to paragraphs 66 and 134 of its 1979 General Survey on the Abolition of Forced Labour, the Committee recalls that the nature and duration of any measures occasioned by an emergency and falling within the scope of the Convention should be limited to what is strictly required in order to cope with circumstances endangering the life, personal safety or health of the whole or part of the population.

The Committee hopes that the Government will be able to indicate in its next report the measures adopted in respect of the above-mentioned provisions in order to ensure compliance with the requirements of Article 1 of the Convention. The Committee would also ask the Government to provide detailed information on the circumstances in which the provisions mentioned in subparagraphs (a) to (c) are applied (including the number of convictions and copies of relevant court decisions).

The Committee also requests the Government to supply information on any further provisions adopted under section 127(1) of the revised Constitution and still in force in matters relevant to the Convention (limitations on expression of views, political activities, meetings, obligation to perform work or services, obligations imposed on members of specified tribes, etc.)

Article 1(a). 2. The Committee earlier noted that, under section 11(1) of the Societies Act, 1968, the Registrar may refuse to register a society, inter alia, where he is satisfied that such society is connected with any organisation of a political nature established outside Kenya; under section 11(2), the Registrar shall refuse to register a society, inter alia, where it appears to him that the interests of peace, welfare or good order would be likely to suffer prejudice by reason of the registration of the society, or where the Minister has declared it to be a society dangerous to the good government of the Republic; the registration of a registered society may be cancelled, inter alia, on similar grounds under section 12(1) and (3) of the Act. According to section 4(1) of the Act, every society which is not a registered society or an exempt society is an unlawful society; as the Government has indicated, persons are liable to punishment under sections 5 and 6 of the Act for managing an unlawful society or being a member of such a society; if convicted, they may be sentenced to imprisonment, involving compulsory labour.

Referring to the explanations provided in paragraphs 102 to 109 and 140 of its 1979 General Survey, the Committee again requests the Government to supply detailed information on the practical application of the provisions of the Societies Act, 1968, relating to the registration, cancellation or suspension of registration and prohibition of societies, and on any measures taken in this connection to ensure that no form of forced or compulsory labour (including compulsory prison labour) may be imposed in circumstances falling within Article 1(a) of the Convention.

3. The Committee earlier noted that, under section 5 of the Public Order Act (Cap. 56), the police authorities are entitled to control and direct the conduct of public gatherings, and have extensive powers to refuse licences for public gatherings, that public gatherings are defined in such a manner as to cover meetings in what are in fact private premises (section 2), and that the penalty for contravention of these provisions may be imprisonment (section 17 involving, as previously noted, an obligation to perform labour). Referring to the explanations given in paragraphs 133 and 139 of its 1979 General Survey, the Committee again requests the Government to supply information on the practical application of the above provisions, as well as on any measures taken or contemplated in regard to these provisions to ensure that no form of forced or compulsory labour is imposed in circumstances falling within Article 1(a) of the Convention.

4. Referring to its observation on the Convention and to paragraphs 133 and 138 of its 1979 General Survey, the Committee would appreciate detailed information regarding:

(a) the practical application of section 53 of the Penal Code, concerning prohibited publications;

(b) the measures taken or contemplated in regard to sections 10 and 17 of the Public Order Act (as amended) and the Prohibited Publications Order, 1968 (LN 100), read in conjunction with section 53 of the Penal Code, to ensure the observance of the Convention.

Article 1(c) and (d). 5. The Committee refers to its previous comments concerning sections 145(1)(b), (c) and (e), 147 and 151 of the Merchant Shipping Act, 1967, providing for certain disciplinary offences by seamen to be punished by imprisonment involving an obligation to perform labour and permitting seamen to be forcibly conveyed on board ship. The Committee noted that the Government was considering amendments to the Merchant Shipping Act and that developments in this matter would be communicated. As the Committee has indicated previously, the provisions in question were based on the United Kingdom Merchant Shipping Act, 1894, and the Government may wish to refer, in its examination of the matter, to the revised provisions on discipline in the United Kingdom Merchant Shipping Act, 1970 in which account has been taken of the requirements of the Convention.

Recalling its comments in paragraphs 117 and 125 of its 1979 General Survey, the Committee hopes that the Government will be able at an early date to report on measures adopted to ensure the observance of the Convention.

6. In its previous comments, the Committee noted that imprisonment (involving an obligation to perform labour) may be imposed for participation in a strike:

(a) under section 25 of the Trade Disputes Act, where the strike has been prohibited by the Minister under his powers under sections 19, 20 and 21 of the Act;

(b) under section 28 of the Act, where a strike has been prohibited by the Minister under sections 30 and 31 in any essential service (which, according to the first Schedule of the Act, includes not only essential services in the strict sense of the term, but also more general services such as undertakings engaged in the distribution of fuel, petrol and oil, transport services provided by the Kenya Railways and port and dock services).

The Committee noted the Government's indication that it would soon be able to report on the practical measures to be taken to ensure the observance of this Article of the Convention.

Referring to the explanations provided in paragraphs 120 to 132 of its 1979 General Survey, the Committee again expresses the hope that, following the assistance given to the Government in 1990 by the International Labour Office in reviewing or drafting certain provisions, the Government will be in a position to report on progress made to bring legislation on merchant shipping and on strike into conformity with the Convention. It expresses the hope that the above-mentioned provisions will be reviewed in the light of the provisions of Article 1(d) of the Convention, so that any prohibition of strikes under sections 19, 20, 21, 30 and 31, punishable under sections 25 and 28 by imprisonment (involving an obligation to perform labour) be limited to cases where the interruption of services would endanger the life, personal safety or health of the whole or part of the population and that the Government will soon report on measures taken to ensure the observance of the Convention in this respect.