Observation (CEACR) - adoptée 2001, publiée 90ème session CIT (2002)

1. For many years the Committee has been drawing the Government’s attention to the need to amend the national legislation (Workmen’s Compensation Act, Chapter 136, as amended in 1987) in order to ensure full application of Articles 5, 9, 10 and 11 of the Convention. In 1990 the Government sent a Bill referred to as the Work Injury Benefits Insurance Scheme. The Committee noted that although the Bill made substantial improvements to the legislation in force, in particular by introducing a social insurance scheme to replace the system of workers’ compensation payable by the employer, it was nonetheless inconsistent with the Convention on a number of points. In its last observation the Committee pointed out that the latest version of the Bill sent by the Government lacked the necessary amendments to eliminate these inconsistencies.

In its last report the Government states that although the Labour Advisory Board has agreed to all the comments made by the Committee, the Government and the social partners are still having difficulty in drafting the abovementioned Bill. The latter will nonetheless be revised in the framework of the comprehensive labour law revision project which is to start soon with the technical assistance of the ILO and in consultation with the social partners.

The Committee notes this information. It hopes that the Government will take all necessary measures to enable the Bill, to which it has been referring since 1990, to be adopted very soon. The Committee trusts that the final version of the Bill will take account of the following comments.

Article 2, paragraph 2, of the Convention. The Committee draws the Government’s attention to section 22(2) of the Bill which, contrary to this provision of the Convention, excludes from compensation for accidents workers ordinarily employed abroad but temporarily employed in Kenya by an employer who carries on business chiefly outside Kenya, subject to international agreements.

Article 5. (a) In its previous report, the Government stated that the final draft of the Bill had been amended to bring section 48 into line with section 56. The Committee hopes that the final version of section 48 will provide for the payment of the compensation in a lump sum only for injured persons whose degree of incapacity does not exceed 20 per cent and for whom the competent authority is satisfied that the lump sum will be properly utilized.

(b) In addition, the Committee recalls that it would be desirable to replace, in section 4(1)(b) and 50(1) of the Bill, the term "accident" by the term "death", so as to take account of cases in which the death of the injured worker occurs after the accident has taken place.

Article 7. The Government stated previously that, although the additional compensation paid in case of incapacity requiring the constant help of another person which is provided for in section 57 of the Bill may be limited to a particular period, the insurance scheme director may extend this compensation depending on the injured worker’s condition. The Committee recalls that the additional compensation must be paid for as long as the injured worker’s state of health so requires. The Committee accordingly hopes that, in practice, the competent authority will make sure at the end of each period for which the additional compensation has been granted that an injured worker, whose state of health so requires, continues to receive the additional compensation for a further period.

Articles 9 and 10. (a) The Committee recalls that section 9(2) of the Bill, which sets a ceiling for the reimbursement of expenses relating, in particular, to medical, surgical, pharmaceutical and hospital treatment, and to the supply and renewal of artificial limbs and surgical appliances, does not comply with this provision of the Convention which guarantees injured workers the right to such medical aid as is recognized to be necessary in consequence of their accidents.

(b) In addition, the medical aid must be granted irrespective of the duration of the injured worker’s incapacity for work and from the day on which the accident occurs. Consequently, in the definition of "accident" given in section 2 of the Bill, the phrase "for more than three consecutive days, excluding the day of the accident and any Sunday, or if Sunday is not a rest day, one rest day" should be deleted. This is all the more necessary as section 36(2) of the Bill already provides for a waiting period of three days for the payment of cash benefits where the duration of the incapacity does not exceed three weeks.

2. The Committee would also be grateful if the Government would provide detailed information on how the Convention is applied in practice including the statistical information requested under Part V of the report form.