Demande directe (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

The Committee notes with interest that Kenya was one of the first six countries to benefit from ILO/IPEC projects, and signed a Memorandum of Understanding with the ILO in 1992. Since then, several action programmes on child labour have been launched targeting the domestic service, cross-border trafficking, quarries and mines, fishing, construction and the hotel and tourism industries. The Committee requests the Government to supply further information on the following points.

Article 1 of the Convention. Measures taken to secure the prohibition and elimination of the worst forms of child labour. 1. Poverty Eradication Programme. The Committee notes the Government’s statement that a Poverty Eradication Programme was launched recently which contributes to providing the necessary environment for the elimination of the worst forms of child labour. The Committee requests the Government to provide further information on the concrete measures taken to implement the Poverty Eradication Programme as well as its impact on reducing or eliminating the worst forms of child labour.

2. National Child Labour Policy. The Committee notes the Government’s indication that a draft National Child Labour Policy, which defines the worst forms of child labour in accordance with Convention No. 182, is before the Cabinet for adoption. The Committee requests the Government to provide a copy of this Policy as soon as it is adopted.

Article 3. Worst forms of child labour. The Committee notes the Government’s indication that the Employment Act of 1976 (Chapter 226) is under review. It also notes that the Act, once amended, shall prohibit the employment of children in the worst forms of child labour as defined by the Convention. The Committee asks the Government to provide a copy of the amended version of the Employment Act as soon as it is adopted.

Clause (a). All forms of slavery or practices similar to slavery. 1. Sale and trafficking of children. The Committee observes that according to section 13(1) of the Children Act, 2001, a child under 18 years of age is entitled to protection from any form of exploitation including sale, trafficking or abduction by any person. Subsection (2) of section 13 provides that any child who becomes the victim of abuse in terms of subsection (1) must be accorded appropriate treatment and rehabilitation in accordance with regulations made by the minister.

2. Debt bondage, serfdom and forced labour. The Committee observes that the Constitution provides that no person may be held in slavery or servitude (article 73(1)), or required to perform forced labour (article 73(2)). It also notes that under sections 264 and 265 of the Penal Code, it is a criminal offence to import, export, traffic, remove, buy, sell or dispose of a person as a slave. It is also prohibited to compel a person to work against that person’s will (section 266 of the Penal Code).

3. Recruitment of children for use in armed conflict. The Committee observes that according to section 10(2) of the Children Act, 2001, no child under 18 years of age may take part in hostilities or be recruited for use in armed conflicts.

Clause (b). 1. Use, procuring or offering of a child for prostitution. The Committee notes that, according to section 15 of the Children Act, 2001, a child under 18 years of age is protected from sexual exploitation and from being used in prostitution. The section prohibits the induction or coercion of a child to engage in any sexual activity. The Committee also observes that section 147 of the Penal Code, as amended by section 21 of the Criminal Law (Amendment) Act, 2003, provides that it is an offence to: (a) procure a person under the age of 21 years to have unlawful carnal connection, either in Kenya or elsewhere, with another person; (b) procure a person to become, either in Kenya or elsewhere, a common prostitute; (c) procure a person to leave Kenya with the intent to become an inmate of, or frequent, a brothel elsewhere; or (d) procure any person to leave their usual place of abode in Kenya, with intent that they may, for the purposes of prostitution, become an inmate of or frequent a brothel either in Kenya or elsewhere. Sections 153 and 154 of the Penal Code (as amended by section 31 of the Criminal Law (Amendment) Act, 2003, provides that it is a criminal offence for any person to live on the earnings of prostitution or to exercise control, for the purpose of gain, over a prostitute in such a manner that aids, abets or compels a person to become a prostitute.

2. Use, procuring or offering of a child for the production of pornography or for pornographic performances. The Committee notes the absence of information in the Government’s report on this point. It observes that section 53(1) of the Penal Code prohibits the printing, importation, making, publishing, supplying, selling, distributing or reproducing a publication which is prohibited by the Minister because it is morally decadent. The Committee observes that the Penal Code does not seem to prohibit the use, procuring or offering of a child for the production of pornography or for pornographic performances. The Committee asks the Government to indicate the measures taken or envisaged to prohibit the use, procuring or offering of a child under 18 years of age for the production of pornography or for pornographic performances.

The Committee requests the Government to provide a consolidated version of the Penal Code as well as information on the practical application of the abovementioned provisions.

Clause (c). Use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs. The Committee observes that section 16 of the Children Act, 2001, states that every child is entitled to protection from the use of hallucinogens, narcotics, alcohol or any other drugs that may be declared harmful by the Minister responsible for health. Section 16 of the Children Act, 2001, also states that it is an offence to involve a child under 18 years of age in the production, trafficking or distribution of the abovementioned drugs. The Committee requests the Government to provide information on the practical application of section 16 of the Children Act, 2001. It also asks the Government to indicate whether national laws prohibit the use, procuring or offering of a child for other types of illicit activities.

Clause (d). Hazardous work. The Committee notes that section 10(1) of the Children Act, 2001, provides that every child shall be protected: (a) from economic exploitation; and (b) from 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 96(2) of the Merchant Shipping Act of 1967 (Chapter 389) provides that, no person under the age of 18 years may be employed in any capacity in any ship, unless a medical certificate is issued by a medical practitioner certifying that the person is fit to be employed in that capacity. Section 96(5) further prohibits the employment of children under 18 years of age on any vessel as a trimmer or stoker, except on a vessel in which only members of the same family are employed.

Article 4, paragraph 1. Determination of hazardous work. The Committee notes the Government’s indication that it has not yet come up with a list of types of work which by their nature or the circumstances in which they are carried out are likely to harm the health, safety or morals of children. The Committee nevertheless notes that the Government had indicated, in its report on the application of the Minimum Age Convention, 1973 (No. 138), that the social partners would be consulted on the types of work to be prohibited for young persons under 18 years of age during the ongoing review of the labour legislation by the tripartite task force. In this regard, the Committee reminds the Government that, by virtue of Article 4, paragraph 1, of the Convention, the types of hazardous work referred to under Article 3(d) must be determined by national laws or regulations or by the competent authority, after consultation with the organizations of employers and workers concerned, taking into consideration relevant international standards, in particular Paragraph 3 of the Worst Forms of Child Labour Recommendation, 1999 (No. 190). In this regard, the Committee draws the Government’s attention to Paragraph 3 of Recommendation No. 190, which provides that in determining the types of such hazardous work, consideration should be given, inter alia, to: (a) work which exposes children to physical, psychological or sexual abuse; (b) work underground, under water, at dangerous heights or in confined spaces; (c) work with dangerous machinery, equipment and tools, or which involves the manual handling or transport of heavy loads; (d) work in an unhealthy environment which may, for example, expose children to hazardous substances, agents or processes, or to temperatures, noise levels, or vibrations damaging to their health; (e) work under particularly difficult conditions such as work for long hours or during the night or work where the child is unreasonably confined to the premises of the employer. The Committee hopes that the list of the types of work to be considered as hazardous will be adopted shortly, in consultation with the organizations of employers and workers concerned, in conformity with Article 4, paragraph 1, of the Convention. In determining the types of work to be considered as hazardous, the Committee trusts that the Government will take into consideration the types of work enumerated in Paragraph 3 of Recommendation No. 190. The Committee accordingly requests the Government to inform it of any developments in this regard as soon as possible.

Paragraph 2. Identification of hazardous work. The Committee notes the absence of information in the Government’s report on efforts made to identify where work that, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children, exists. The Committee nevertheless notes that according to the information provided in the 1998-99 Child Labour Report, published by the Central Bureau of Statistics of the Ministry of Finance and Planning in June 2001 (page 55) (herein after referred to as the Child Labour Report), inspection officials from the Ministry found children working in hazardous situations when enforcing the rules prohibiting hazardous work. These situations were characterized by harsh environments in sisal, coffee and tea estates, fishing and horticultural farms where they were exposed to toxic substances; lack of protective clothing in sisal estates, manufacturing, mining and quarrying activities within the informal sector as well as in the salt mining firms; and carriage of heavy loads in sisal estates, sand harvesting, stone cutting, salt harvesting and horticultural farms. The Committee requests the Government to indicate whether the findings of the labour inspectors concerning children working in hazardous occupations will be taken into consideration when identifying where hazardous work, that children under 18 years of age shall not perform, exists.

Article 5. Monitoring mechanisms. 1. National Council for Children’s Services. The Committee notes that, under section 34(1) of the Employment Act of 1976, a labour officer may, by notice in writing served upon any person, prohibit such person from employing a juvenile (i.e. a person under the age of 18 years according to section (2) in any employment specified in the notice, on the grounds that, in the opinion of the officer, the nature of the employment is dangerous or immoral, or is likely to be injurious to the health of the employee. The Committee notes that section 30 of the Children Act, 2001, provides for the establishment of a National Council for Children’s Services which is composed of representatives of the organizations of employers and workers, as well as representatives of: the Ministry responsible for matters related to children; the Ministry of Education; the Ministry of Health; the Ministry of Finance; the Commissioner of police; religious organizations; and the private sector. The National Council for Children’s Services is responsible for monitoring and ensuring the full implementation of Kenya’s international and regional obligations regarding children’s rights and facilitating the formulation of appropriate reports (section 32(2)(i) of the Children Act, 2001). The Committee asks the Government to provide information on the concrete measures taken by the National Council for Children’s Services to monitor the implementation of the provisions giving effect to the Convention.

2. The District Children’s Advisory Committees (DCAC). The Committee observes that the DCACs, which are subcommittees of the District Employment Committees are in charge of monitoring matters related to children’s welfare at the district level. The Committee observes that DCACs are active in monitoring the implementation of the ILO-IPEC project 2002-04 aiming at combating exploitative child labour in domestic services. The Committee requests the Government to provide information on the concrete measures taken by the DCACs to monitor the implementation of the abovementioned ILO project. It also asks the Government to indicate in which other areas the DCACs operate.

3. Child labour monitoring system in the commercial agricultural sector. The Committee observes that under the ILO/IPEC subregional project on the prevention, withdrawal and rehabilitation of children engaged in hazardous work in commercial agriculture in Eastern Africa (COMAGRI project), a child labour monitoring system will be created as of 2004 to monitor and verify: (a) the child labour situation in smallholder and plantation agriculture in tea, coffee and sugar subsectors; (b) the status of the child labour situation in the project sites; and (c) compliance with the project’s terms of reference for monitoring. It also observes that the monitoring mechanism is geared towards establishing a permanent institutional child labour monitoring mechanism that enables tracking, reviewing and reporting progress achieved and setbacks encountered in the struggle to eliminate the worst forms of child labour. The Committee requests the Government to indicate whether the child labour monitoring system under the COMAGRI project has been established and to provide information on its activities.

Article 6. Programmes of action to eliminate the worst forms of child labour. The Committee notes the Government’s statement, in its report, that the organizations of workers and employers, particularly, the Central Organization of Trade Unions and its affiliates, the Kenyan National Union of Teachers have comprehensive structures from national to grass-roots levels that facilitate the trickling down of policies and action programmes geared towards elimination of the worst forms of child labour. Other stakeholders such as the African Network for the Prevention and Protection against Child Abuse and Neglect (ANPPCAN), Kenya office, have a community-based approach as an intervention mechanism for the elimination of the worst forms of child labour in the country. The key strategies used by this organization include use of drama and participatory discussion by parents, teachers, local leaders, religious bodies, government representatives, non-governmental organizations, women’s groups and representatives of employers. The Committee requests the Government to provide further information on the concrete measures taken by the social partners and other actors to eliminate the worst forms of child labour and the results achieved.

The Committee observes that a three-year programme of action entitled: "Building the foundations for eliminating the worst forms of child labour in Anglophone Africa" was launched in September 2002. The project is based on the urgent need to strengthen and build capacity at all levels of society to facilitate concerted national efforts against the worst forms of child labour. The core participating countries are Kenya, Ghana, Nigeria, Uganda and the United Republic of Tanzania. The programme includes components which focus on interventions at the subregional and national levels. At the national level, the programme aims at providing governments, organizations of employers and workers and other stakeholders with the necessary technical skills and organizational capacity to formulate and implement policies, programmes and other initiatives to facilitate the prevention of the worst forms of child labour, and to protect, withdraw, rehabilitate and reintegrate children participating in the worst forms of child labour. To this end, ILO/IPEC will support the following interventions: (a) building the knowledge base on child labour; (b) dissemination of information; (c) raising awareness; (d) networking, integration and mainstreaming; (e) policy and legislative support; and (f) direct action. At the subregional level, the project aims at permitting the sharing and dissemination of experiences and information across the subregion. The Committee requests the Government to provide information on the impact of this programme on eliminating the worst forms of child labour.

Article 7, paragraph 1. Penalties. The Committee notes that a person who sells or traffics another person is liable to a maximum of 12 months’ imprisonment and/or a fine of a maximum of 15,000 Kenyan shillings (sections 13(1) and 20 of the Children Act, 2001). Section 264 of the Penal Code provides that a person who imports, exports, traffics, removes, buys, sells or disposes of a person as a slave is punishable by seven years’ imprisonment. The penalty is increased to ten years’ imprisonment if the abovementioned offences are committed in an ongoing and regular manner. Section 266 of the Penal Code states that a person who compels a person to work is guilty of a misdemeanour. The Committee also notes that, by virtue of section 20, read in conjunction with section 10(1) of the Children Act, 2001, a person who economically exploits a child under 18 years of age is punishable by imprisonment for a term not exceeding 12 months and/or to a fine not exceeding 50,000 thousand Kenyan shillings. The same penalties apply to a person who violates the prohibition to recruit children under 18 years in armed conflicts or the prohibition for children to take part in hostilities (section 20, read in conjunction with section 10(2) of the Children Act, 2001). The Committee further notes that a person who sexually exploits a child shall be liable to a maximum term of imprisonment of 12 months and/or to a maximum fine of 50,000 thousand Kenyan shillings (section 20 of the Children Act, 2001). Section 16 of the Children Act of 2001 provides for the same penalties for a person who involves a child under 18 years of age in the production, trafficking or distribution of the abovementioned drugs. The Committee asks the Government to provide information on the penalties applicable to a person committing the misdemeanour of forced labour (prohibited under section 266 of the Penal Code) and whether these penalties are adequate to ensure the effective enforcement of the provision. It also asks the Government to provide information on the penalties imposed in practice.

Article 7, paragraph 2. Effective and time-bound measures. The Committee notes the Government’s statement that a time-bound programme (TBP) is under preparation with the assistance of the ILO/IPEC. The Committee welcomes this initiative and asks the Government to provide information on the launching of the TBP, and the areas covered by the programme.

Clause (a). Measures taken to prevent the engagement of children in the worst forms of child labour. 1. Hazardous work in commercial agriculture. The Committee observes that a three-year subregional project concerning children engaged in hazardous work in commercial agriculture (COMAGRI) was launched in 2000 by the ILO/IPEC in Kenya, Uganda, the United Republic of Tanzania, Malawi and Zambia. The programme aims at raising awareness on the hazards of child labour in commercial agriculture, to build national and subregional capacity to fight against this phenomenon, and to target as many as 3,000 children per country. The targeted areas in commercial agriculture include tea, coffee, sugar, rice, and tobacco plantations. The Committee asks the Government to provide information on the concrete measures taken to prevent children from engaging in hazardous types of work in commercial agriculture, and the results achieved.

2. Domestic work. The Committee observes that a two-year project was established in 2002 with the support of the ILO/IPEC to combat the labour exploitation of children engaged in domestic work. The project’s objective is mainly to prevent and protect child domestic labourers from exploitation. Children were reported to enter domestic service as young as 7 years of age, work long hours (from 5 a.m. to 10 p.m.) for a very small salary and sometimes no salary at all. They were not entitled to annual leave, and were often shut up in the houses. Interventions to prevent children from entering child domestic work have focused on two key areas: awareness raising in the recruitment areas and the provision of financial support to poor families in order for their children to remain in school. The Committee requests the Government to provide information on the impact of the awareness-raising campaigns and whether the financial support provided to parents helped to keep children in schools and prevented them from engaging in exploitative domestic work.

3. Education. The Committee observes that according to the statistics and information provided in the 1998-99 Child Labour Survey, primary education starts at 6 years of age and lasts seven years. According to this survey, the gross enrolment rate in primary education declined from 105 per cent in 1989 to 86.9 per cent in 1999 due to the deepening of poverty and the adverse effects of the structural adjustment programmes which introduced cost sharing in primary education. The Committee also notes a low gross enrolment rate (approximately 21 per cent in 1999) in secondary education which starts when a child reaches 13 years of age. The survey also indicates that 1.3 million working children aged 5 to 17 were out of school in 1999 and that 18 per cent of these working children had no formal education. The Committee notes, with interest, the Government’s statement that from January 2003, it implemented a policy on free and compulsory primary education. This policy aims at eliminating all forms of payment to enroll in primary education, which resulted in 1.7 million enrolling in school. The Government indicates that without such a policy these children would have engaged in child labour. The Government further states that 2,000 former street children who were engaged in the worst forms of child labour were admitted into the National Youth Service which is a vocational training institution. The Committee encourages the Government to pursue its efforts to ensure free basic education for all children. It also asks the Government to continue to provide information on the measures taken to this end, as well as the results achieved.

Clause (b). Direct assistance for the removal of children from the worst forms of child labour, and for their rehabilitation and social integration. The Committee observes that according to section 13(2) of the Children Act, 2001, children under 18 years of age who are victims of any form of exploitation including the sale, trafficking or abduction by any person must be accorded appropriate treatment and rehabilitation in conformity with the regulations that the Minister may make. The Committee also notes that according to the 1998-99 Child Labour Survey, from 1992 to 1997 interventions programmes conducted in collaboration with ILO/IPEC revealed that children were engaged in the worst forms of child labour and were rehabilitated by implementing institutions. For instance, under the Kisii District Children’s Advisory Committee (DCAC), 172 boys and 30 girls aged 8 to 15 years found working in soapstone industries were reintegrated into the formal education system. The Malindi DCAC permitted the removal of 149 children (94 boys and 55 girls) from hazardous work in sand harvesting and tourist resorts and beaches. Out of this, 145 children were reintegrated back into the formal school system. It also notes that the COMAGRI project aimed to target 1,500 children in Kenya for direct action by 2003, including the withdrawal of children from exploitative work and providing for their rehabilitation.

Clause (d). Identifying and reaching out to children at special risk. 1. Street children. The Committee notes that the Committee on the Rights of the Child (CRC/C/15/Add.160, 7 November 2001, paragraphs 57 and 61) expressed grave concern at the high and increasing number of street children. In particular, it noted their limited access to health, education and other social services, as well as their vulnerability to sexual and economic exploitation. The Committee requests the Government to provide information on the time-bound measures taken or envisaged to protect street children from labour and sexual exploitation.

2. Unpaid workers. The Committee observes 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. According to section 2 of the abovementioned Act, a child means a person under the age of 18 years. The Committee consequently notes that unpaid workers do not benefit from the protection laid down in the Children Act. It also notes that 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), 78 per cent of children work for free in family agricultural activities and business enterprises during school holidays and after school. The Committee accordingly requests the Government to indicate the measures taken or envisaged to ensure the protection of unpaid workers under 18 years of age against work which, by its nature or the circumstances in which it is carried out, is likely to harm their health, safety or morals.

3. HIV/AIDS pandemic. The Committee notes the Government’s indication that the country made a lot of progress towards eliminating the worst forms of child labour but these efforts have been lately undermined by the HIV/AIDS pandemic. According to UNAIDS statistics, in 2001, 890,000 children under 15 years of age were orphans due to their parents dying from AIDS in Kenya. The Committee observes that the pandemic of HIV/AIDS has consequences on orphans who might more easily engage in the worst forms of child labour. The Committee also notes the Government’s indication that the Ministry of Health in collaboration with the Ministry of Labour and Human Resources Development is in the process of organizing a country-wide survey to determine the impact of HIV/AIDS on child labour. The Committee requests the Government to provide a copy of the survey on the impact of HIV/AIDS on child labour as soon as it is available. It also asks the Government to provide information on measures taken or envisaged to address the situation of these children.

Clause (e). Special situation of girls. 1. Commercial sexual exploitation of girls. The Committee notes that the two-year ILO/IPEC project entitled: "Combating child sexual exploitation in four Anglophone African countries", launched in October 2001, provided for the funding of actions to strengthen community-based action and educational support to groups of children at risk of being sexually exploited. ILO/IPEC worked with the Ministry of Education, District Children’s Advisory Committees, the African Network for the Prevention and Protection of children against Child Abuse and Neglect, and a local non-governmental organization working with girl domestic workers. It provided its support to programmes addressing the vulnerabilities of the girl worker, particularly those involved in exploitative domestic work and at risk of sexual exploitation. The Committee also observes that according to the ILO report on the abovementioned project, it is estimated that 10,000 to 30,000 children (mainly girls) are engaged in prostitution in Kenya. The report also points out that some children who have been in domestic services end up in prostitution, and that 18 per cent of children were reported to be working in domestic service in 2001. The Committee further notes that awareness-raising campaigns were launched in primary schools, through the media. Finally, the Committee notes that the ILO/IPEC project came to en end in October 2003 and that it had the objective of preventing 1,500 children at risk and removing an additional 500 children from commercial sexual exploitation. Noting nevertheless the very high number of girls involved in commercial sexual exploitation in Kenya according to the ILO/IPEC project document, the Committee requests the Government to continue to provide information on additional time-bound measures taken or envisaged to remove these girls from commercial sexual exploitation.

2. Domestic workers. The Committee observes that a two-year project was established in 2002 with the support of ILO/IPEC to combat child labour in domestic work. This project includes the withdrawal and rehabilitation of child domestic workers. Non-governmental organizations, the Children’s Department in the Ministry of Home Affairs and, to a limited extent the labour inspectorate, work in collaboration with ILO/IPEC towards the withdrawal of child domestic workers. Regarding the rehabilitation of child domestic workers, the focus is on providing girl child domestic workers (they represent 80 per cent of child domestic workers) access to basic literacy or skills training along with psychological counseling, and sensitizing employers to ensure decent minimum working conditions. The Committee requests the Government to provide information on the impact of this project, including statistics on the number of children, withdrawn from the worst forms of child labour and rehabilitated.

Article 7, paragraph 3. The Committee notes the Government’s indication that the Ministry of Labour and Human Resource Development is responsible for the implementation of the provisions giving effect to the Convention.

Article 8. International cooperation. The Committee notes that Kenya is a member of Interpol which helps cooperation between countries in the different regions especially in the fight against trafficking of children. It also notes that Kenya ratified the Convention on the Rights of the Child in 1990, and the Protocol on the Involvement of Children in Armed Conflict in 2002. Kenya also signed the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography in 2000. The Committee asks the Government to indicate any steps taken to assist other member States in giving effect to provisions of the Convention through enhanced international cooperation and/or assistance including support for social and economic development, in conformity with the requirements of the Convention.

Part III of the report form. The Committee notes the Government’s indication that courts of law have not yet given any decisions involving questions of principle relating to the application of the Convention. It asks the Government to supply any court decisions regarding the legislation relevant to the application of the Convention.

Part IV. The Committee notes the Government’s statement that national labour laws are under review in order to be in line with the provisions of the Convention. To this end, an ILO/IPEC project on Strengthening Labour Relations in East Africa (SLAREA) was launched in May 2001 to support labour law reform efforts that are at an advanced stage of completion in Kenya.

Part V. The Committee notes that the Government has provided a copy of the 2002 annual report of the Labour Department. According to this report, labour inspectors carried out inspections in approximately 15,500 workplaces. The Committee notes however that the results of these inspections do not pertain to the worst forms of child labour. It also notes that the information provided on prosecutions does not include information on the types of infringements and penalties imposed. The Committee would be grateful if the Government would provide information on the worst forms of child labour, including information on the nature, extent and trends of those forms of child labour, and the number of children covered by the measures giving effect to the Convention. The Committee also requests the Government to provide, in its next report, information on the number and nature of infringements reported, investigations, prosecutions, convictions and penal sanctions applied.