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

In the comments it has made for a number of years, the Committee has drawn the Government's attention to the provisions of Article 14 (a) of the Convention which allows States that have ratified the Convention to make the free choice of employment subject to the condition that the migrant worker has resided lawfully in its territory for the purpose of employment for a prescribed period not exceeding two years. In its reports, the Government states that this question is not covered by specific legislation and each case is handled upon its own merits, i.e. depending on the country's policy of giving preference to a Kenyan over a migrant worker where both are equally qualified (the "Kenyanisation" policy).

In its last report, the Government states that the question of free choice of employment as far as migrant workers are concerned depends upon the discretion of the Government, in accordance with the "Kenyanisation" of jobs policy and as part of the effort to control unemployment, which is particularly prevalent among young university graduates. Migrant workers are not normally allowed to take up jobs which indigenous Kenyans can easily do. The Government indicates, however, its intention to make a careful study of present legislation vis-à-vis the Convention with a view to ensuring harmony between the two.

The Committee takes due note of this information. It recalls that Article 10 provides that a national policy designed to promote and guarantee equality of opportunity and treatment in respect of employment and occupation, of social security, of trade union and cultural rights and of individual and collective freedoms must be declared and pursued in respect of migrant workers and their families who are lawfully within the territory of a State which has ratified the Convention. Under Article 12 (d), statutory provisions or administrative practices that are incompatible with the above-mentioned policy of equality of opportunity and treatment must be modified. The Committee trusts that once the study referred to by the Government is completed, measures will be taken to bring national law and practice into line with the Convention on this point. It asks the Government to provide information on the measures adopted in this connection.