CMNT_TITLE

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Kenya (RATIFICATION: 2001)

Other comments on C111

Observation

Direct Request

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The Committee notes the observations of the Central Organization of Trade Unions of Kenya (COTU-K) received on 1 September 2023. The Committee requests the Government to provide its comments in this respect.

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.

Articles 1 and 2 of the Convention. Legislation. Scope of application. In its last comment, the Committee requested the Government to indicate how it ensured the application of the principle of equality and non-discrimination to workers explicitly excluded from the scope of Employment Act, 2007 – namely members of the armed and police forces, the prison service and the National Youth Service (NYS), and dependants in a family undertaking. The Committee notes that the Government does not provide information in this regard in its report and observes that the Armed Forces Act, 1980, the National Police Service Act, 2011, the Prisons Act, 1977 and the National Youth Service Act, 2018 do not explicitly prohibit discrimination. Therefore, the Committee asks again the Government to specify the measures adopted to ensure that workers excluded from the scope of application of the Employment Act, 2007 are protected against discrimination in employment and occupation in practice. In follow up to its previous comments, the Committee also requests information on the implementation of the Gender Policy of the Ministry of Defense and on the activities of the National Gender and Equality Commission in relation to the protection of workers against discrimination in the armed and police forces, the prison service and the National Youth Service (NYS).

Article 2. Equality of opportunity and treatment of men and women. Statistics. In its last comment, the Committee requested the Government to provide statistics on the distribution of men and women in employment and occupation. While noting that the Government does not provide such information, the Committee observes that the 2019 National Policy on Gender and Development shows an increase in the proportion of women’s participation in wage employment in different sectors (agriculture, manufacturing, wholesale and financial sector). The Committee also notes that the same policy provides for the establishment of a database on employment records of women and men to evaluate and improve their employment conditions and for the collection of national and county sex disaggregated data and gender statistics by Kenya National Bureau of Statistics. The Committee requests the Government to provide information on the data collected by the Kenya National Bureau of Statistics on the distribution of men and women in employment and occupation.

National policies on gender equality. The Committee had previously requested the Government to provide information on the status and implementation of the national policies on gender equality. In this regard, the Committee takes note of the adoption of: (1) the 2019–24 Strategic Plan of the National Gender and Equality Commission (NGEC); (2) the 2018–22 Strategic Plan of the Ministry of Public Service, Youth and Gender Affairs; and (3) the 2019 National Policy on Gender Development. The Committee requests the Government to provide information on the implementation and the results of these policies.

Women’s self-employment, access to land, credit and other material goods and services. The Committee had requested the Government to inform on the steps taken to promote women’s self-employment, and their access to land, credit and other material goods and services needed to perform an occupation. The Committee notes that the Government refers to: (1) the establishment in 2007 of the Women’s Enterprise Fund (WEF) with the objective to give women entrepreneurs access to credit and support services; (2) the launch in 2012 of the National Affirmative Action Fund, sought to increase access to financial facilities and employment services; (3) the programme “Access to Government Procurement Opportunity” (AGPO) initiated in 2013 to facilitate marginalized groups to participate in government procurement; and (4) the Uwezo Fund established in 2014 to provide business mentorship opportunities and access to funds to set up businesses. The Committee further observes that one of the objectives of the 2019 National Policy on Gender Development is to harmonize land laws and secure land rights for women to enable their participation in and benefit from the agriculture. The Committee also notes that according to the 2019–2024 Strategic Plan of the NGEC, this commission will work closely with national government institutions and the county governments to promote equitable distribution of resources. The Committee requests the Government to provide information on the concrete results of these measures and policies, including statistical or qualitative data.

Addressing gender stereotypes. Recalling that it requested the Government to provide information in this regard, the Committee notes that the 2019 National Policy on Gender and Development provides for specific policy actions to eliminate gender stereotypes such as for example, increasing women access to media content and decision-making positions in this industry, censoring media contents that perpetuate gender stereotypes, and addressing negative gender stereotypes among with children and youth. The Committee requests the Government to provide information on the measures adopted to implement the actions envisaged in these policies to combat gender stereotype in training, employment and occupation.

Equality of opportunity and treatment of ethnic minority groups and indigenous people. In its last comment, the Committee requested the Government to provide information on: (1) the measures adopted or envisaged to ensure that indigenous people have access to their traditional occupations and livelihood activities; (2) the follow up given to the decisions of the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights (ACHPR) on the situation of the Endorois and Ogiek people; (3) the findings of the NGEC’s Status Report on Equality and Inclusion; and (4) the activities of the NGEC and the National Land Commission in relation with the indigenous people. While the report of the Government does not address these matters, the Committee observes that: (1) one of the objectives of the 2019 National Policy on Gender and Development is to enhance and intensively promote the social, economic and political inclusion of all, irrespective of age, sex, disability, race, ethnicity, origin, religion, economic or other status; and that (2) based on the 2018–23 Strategic Plan of the Kenya National Commission on Human Right (KNCHR), the KNCHR facilitates the restoration of the Endorois people’s rights and the implementation of the ACHPR decisions. The Committee requests the Government to provide detailed information on the activities conducted by the Kenya National Commission on Human Rights (NCHR), the National Land Commission, or other institutions and actors (including workers and employers’ organizations), to promote and implement the principle of equality of opportunity and treatment of workers belonging to ethnic minority groups and indigenous people.

Persons with disabilities. In follow to its request for information on the measures adopted or envisaged to promote the inclusion of persons with disabilities in employment and occupation, the Committee takes note of the 2018–22 Strategic Plan of the National Council for Persons with Disabilities that addresses extensively non-discrimination in employment opportunities and provides for the adoption of a number of specific measures, including the creation of an employment portal linked to the Kenyan labour market, access to scholarships, and opportunities for self-employment and entrepreneurship. The Committee requests the Government to provide information on the concrete measures adopted and their impact on the employment of persons with disabilities.

Article 4. Measures affecting persons justifiably suspected of, or engaged in, activities prejudicial to the security of the State. The Committee once again requests the Government to specify the scope of application of section 5(3) of the Employment Act, 2007 and to provide information about the “good conduct” certificate.

Enforcement. In its last comment, the Committee requested the Government to provide information on: (1) the number of cases of discrimination in employment or occupation reported to or detected by labour inspectors – including in Export processing zones (EPZs); and (2) on such cases processed by the NGEC and the courts. The Committee takes note of the reference of the Government to the 2014 judicial decision of the Industrial Court of Nairobi, imposing sanctions following a finding of wage discrimination on the basis of race. The Committee notes however that the Government does not provide information on the number of cases of discrimination handled by the labour inspection, the NGEC or the courts. It therefore requests the Government to provide information on the number of cases related to the implementation of the Convention, processed by the labour inspectorate, the NGEC or the courts, including information on the nature of the discrimination and the outcome of these cases.