Demande directe (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

Referring to its observation under the Convention, the Committee requests the Government to provide information on the measures taken or envisaged with a view to bringing into conformity with the Convention the following provisions of the national legislation, to which the Committee referred in its earlier comments.

Article 1(a) of the Convention. Penal sanctions involving compulsory labour as a punishment for expressing political views. 1. In its earlier comments the Committee referred to section 11(1) and (2) of the Societies Act, 1968, under which the Registrar may refuse to register a society, inter alia, where he is satisfied that such society is connected with any organization of a political nature established outside Kenya, or 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. Under sections 5 and 6 of the Act, managing an unlawful society or being a member of such a society is punishable with imprisonment (which involves compulsory labour).

The Committee notes the Government’s indication in the report that the concerns raised over the application of Article 1(a) of the Convention have been raised during the review of the legislation with the enforcing authorities (Registrar of Societies). The Committee hopes that appropriate measures will be taken to ensure that no form of forced or compulsory labour (including compulsory prison labour) may be imposed under the abovementioned provisions in circumstances falling within the scope of the Convention. Pending the adoption of such measures, it again requests the Government to supply information on the practical application of the above provisions of the Societies Act, 1968, relating to the registration, cancellation or suspension of registration and prohibition of societies, supplying sample copies of the relevant court decisions and indicating the penalties imposed.

2. In its earlier comments the Committee referred to section 5 of the Public Order Act (Cap. 56), under which the police authorities are entitled to control and direct the conduct of public gatherings and have extensive powers to refuse licences for public gatherings, contraventions being punishable with imprisonment (section 17), which involves compulsory labour. The Committee previously noted the Government’s indication that the Statute Law (Repeals and Miscellaneous Amendments) Act No. 10 (1997) introduced amendments to section 5 of the Public Order Act, making it inapplicable to situations referred to as “excluded meetings”. The Committee again requests the Government to communicate a copy of the amending text, as well as the information on the application of section 5 in practice, supplying copies of the relevant court decisions.

3. Referring to its observation under the Convention, the Committee again requests the Government to communicate 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). Penal sanctions involving compulsory labour as a punishment for breaches of labour discipline and for the participation in strikes. 1. In its earlier comments the Committee referred to sections 145(1)(b), (c) and (e), 147 and 151 of the Merchant Shipping Act, 1967, under which certain disciplinary offences by seafarers are punishable with imprisonment (involving compulsory labour) and seafarers may be forcibly conveyed on board ship to perform their duties. Referring to its observation under the Convention, the Committee notes the Government’s indication in the report that the Merchant Shipping Act, 1967, has been reviewed and hopes that the Government will communicate, with its next report, a copy of the revised legislation for examination by the Committee.

2. The Committee previously noted that imprisonment (involving compulsory labour) may be imposed for participation in a strike:

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

(b)   under section 28 of the Act, where a strike has been prohibited by the Minister by virtue of 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 previously noted the Government’s indication that measures had been taken to ensure that any punishment for participation in unlawful strikes does not include compulsory labour and requested the Government to describe such measures. It notes the Government’s brief indication in its latest report that measures to be undertaken in case of unlawful strikes has been provided in the revised Labour Relations Bill, which is before Parliament and awaiting the final reading. The Committee hopes that the Government will communicate a copy of the new legislation, once it has been passed, and that the provisions concerning the right to strike will be brought into conformity with Article 1(d) of the Convention.