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Articles 5(a) and 21(e) of the Convention. Effective cooperation between the labour inspection services and the justice system. The Committee notes that it is envisaged to promote effective cooperation between the labour inspection system and the justice system with a view to encouraging due diligence and attention in the treatment by judicial bodies of violations reported by the labour inspectorate. In this regard, the Government indicates the development of procedural rules and regulations for the industrial court which complete the recently reviewed and adapted labour legislation. The Committee asks the Government to keep the ILO informed of any developments in terms of strengthening the above cooperation and, where applicable, to send a copy of any law or regulation adopted governing the legal procedure of the industrial court.

Article 2, paragraphs 1 and 23, and Article 3, paragraph 1, of the Convention. Scope of labour inspectors. The Committee notes with interest that Legal Notice No. 227/1990, which exempted establishments located in export processing zones (EPZs) from the application of the health and safety legislation, is now null and void and that the provisions of the Occupational Safety and Health (OSH) Act apply to all workplaces, including those in EPZs.

It further notes that the services of the Department of Occupational Safety and Health carried out a total of 4,117 occupational safety and health inspections during the 2008–09 financial year. Although it indicates that the Department monitored the activities of the safety and health committees established under section 9 of the OSH Act and trained 5,150 labour inspectors, the Government explains that it cannot provide information on the number of occupational safety and health committees established in industrial and commercial establishments in EPZs due to the limited capacity of the data-capturing system which does not segregate different workplaces. The Committee would be grateful if the Government would provide a copy of the court ruling which found Legal Notice No. 227/1990 to be null and void and if it would continue to keep the ILO informed of further inspection visits carried out by occupational safety and health officers. It requests the Government to make every effort to improve the data-capturing system with a view, among other objectives, to the disaggregation of data by industrial and commercial establishments, and to communicate the missing information in the near future.

The Committee notes that the categories of workers to be exempted from the scope of the Labour Institutions Act on labour administration and inspection, as provided for by section 4(3) of the Act, are to be specified by relevant rules and regulations. The Committee requests the Government to keep the ILO duly informed in this regard and to communicate a copy of any relevant rules and regulations.

Articles 10, 11 and 16. Adequate means of action and working conditions of labour inspection staff. Having expressed its concern at the persistent lack of labour inspection staff, office equipment and means of available transport facilities, the Committee regrets that, according to the Government, no progress has yet been made in this regard. Although fully aware of the difficulties that the country faces in the ongoing global recession and food crisis, the Committee nevertheless encourages the Government to do its utmost to seek international financial assistance to enable it to ensure sustainable resources for the effective functioning of the labour inspection services and to keep the ILO informed of any measures taken and the results achieved in this respect.

Article 14. Reporting and investigation of occupational accidents and cases of occupational disease. The Committee notes the description by the Government of its investigation procedure with regard to occupational accidents and cases of occupational disease: after reporting to the Director of the Occupational Safety and Health Services (DOSH) through the relevant accident reporting form (DOSH 1), occupational safety and health inspectors are sent to visit the scene of the accident, where they interview witnesses as well as the victim of the accident and collect other necessary evidence. The relevant report drafted following accident investigations constitutes the basis for action such as, where approproate, improvement or prohibition notices, training, advice or prosecution. While the possibility to set up a tribunal to investigate occupational accidents and cases of occupational disease is foreseen in section 128 of the OSH Act, the Government sees no need to constitute such a tribunal as the DOSH has been entrusted with the investigation of these cases. Noting the indication that, in the years 2008 and 2009, a total of 291 accidents were investigated, the Committee would be grateful if the Government would indicate the number of occupational accidents and cases of occupational disease reported in comparison with the number of investigations actually conducted, as well as the action taken following these investigations (improvement or prohibition notices, prosecutions and penalties imposed).

The Committee notes that, according to the Government, the obligation set out in Article 22 of the OSH Act for medical practitioners to notify occupational diseases to the Director of the OSH Services is not functioning in a satisfactory manner in practice as medical practitioners, despite an existing list of 40 occupational diseases in the second schedule to the OSH Act, are not adequately sensitized, bearing in mind the complexity of diagnosing occupational diseases. The Committee urges the Government to take measures to sensitize medical practitioners (e.g. through awareness campaigns, the distribution of brochures or the organization of training sessions). Drawing the Government’s attention to the possibility of ILO technical assistance to this end, the Committee would be grateful if it would indicate any steps taken in this regard and the results achieved.

Articles 20 and 21. Annual report on labour inspection activities. The Committee notes that no annual report has been received, although the Government mentions an annual ministerial report under these Articles. It had noted in its previous report the obligation under Article 42(1) of the Labour Institutions Act for the Commissioner for Labour to prepare and publish, not later than 30 April of each year, a report on the activities undertaken in his/her department. The content of the report, as set out in Article 42(2), includes the information required under Article 21 of the Convention. It also noted that Article 25 of the OSH Act provides for the development and maintenance of an effective programme of the collection, compilation and analysis of occupational safety and health statistics covering occupational accidents and diseases, as well as the existence of an accident database where information sent through the DOSH 1 form is entered. The Committee once again requests the Government to provide information on the progress made in establishing a system to give effect to the requirements of Article 25 of the OSH Act in practice and any difficulties that have been encountered.

It urges the Government to ensure that an annual report, containing all the information and statistics on labour inspection activities required by Article 21 of the Convention, is published and communicated to the ILO.

Labour inspection and child labour. The Committee notes the Government’s indication that it has not yet provided the child labour division with any budgetary allocation due to financial constraints. However, it notes with interest, that under the Time-bound Programme for the elimination of child labour implementation with ILO–IPEC, training sessions have been organized for the labour inspectorate in the area of project management, strategic management, capacity building on child labour issues and the training of trainers. The Committee requests the Government to ensure, where applicable within the framework of international financial cooperation, that adequate resources are rapidly made available. It asks the Government to specify the content of the above training of labour inspectors, the number and function of the participants and the duration of the training, and to provide information on any further training in this regard, as well as on its impact on the level of observance of legal provisions relating to child labour.

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With reference to its observation, the Committee wishes to draw the Government’s attention to the following point.

Article 12, paragraph 1(a), of the Convention. Right of inspectors to enter workplaces freely: Timing of inspection visits. The 2007 Labour Institutions Act provides that a labour officer may, for the purpose of monitoring or enforcing compliance with any labour law, “at all reasonable times, enter, inspect and examine any land or building … in which the labour officer has a reasonable ground to believe that an employee is residing or is employed” (section 35(1)(e)). The Committee refers to its General Survey of 2006 on labour inspection (paragraphs 268–271) and recalls that the purpose of Article 12(1)(a) of the Convention, which provides that inspectors “shall be empowered to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection” is to allow inspectors to carry out inspections, where necessary and possible, in order to ensure the protection of workers and in accordance with the technical requirements of inspection. Inspectors should also be authorized to decide when inspection of the workplace is appropriate. The Committee therefore requests the Government to clarify in its next report the practical scope of the expression “at all reasonable times” used in the 2007 Labour Institutions Act and to indicate how it is ensured that it is the labour officer who decides whether the time to visit an establishment or a workplace is or is not reasonable.

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The Committee notes with interest the adoption in October 2007 of the Labour Institutions Act (Act No. 12 of 2007) containing provisions for labour administration and inspection (Part V); the Occupational Safety and Health Act (Act No. 15 of 2007, hereinafter the OSH Act) containing provisions on enforcement by occupational safety and health officers (Part IV); the Work Injury Benefits Act (Act No. 13 of 2007); the Employment Act (Act No. 11 of 2007); and the Labour Relations Act (Act No. 14 of 2007). The Committee would be grateful if the Government would provide detailed information in its next report on the application of the Convention in practice following this in-depth revision of Kenyan labour law. It wishes to draw the Government’s attention in particular to the following points.

Articles 2, paragraph 1, and 23 and Article 3, paragraph 1, of the Convention. Labour inspection and supervision of conditions of work. Scope of labour inspection. Referring to its previous comments on the supervision of occupational safety and health in establishments located in export processing zones (EPZs), the Committee notes the Government’s indication that it is envisaged that Legal Notice No. 227/1990, which exempts these establishments in EPZs from the application of the Factories and Other Places of Work Act (Cap. 514), will be rendered null and void following the entry into force of the new OSH Act. While noting that, following the entry into force of the OSH Act in 2008, the Factories and Other Places of Work Act has now been repealed (section 129(1) of the OSH Act), the Committee observes that, under section 129(2)(b) of the OSH Act, any subsidiary legislation issued before its commencement shall, as long as it is not inconsistent with it, remain in force until repealed or revoked by subsidiary legislation under the provisions of the OSH Act and shall, for all purposes, be deemed to have been made under this Act. The Committee therefore requests the Government to confirm that Legal Notice No. 227/1990 is now null and void and that, as a consequence, the provisions of the OSH Act apply to all workplaces, including establishments located in EPZs. If the Legal Notice is still in force, it requests the Government to take the necessary measures in the near future to repeal or revoke it.

The Government is also requested to provide detailed information and statistics in its next report on the inspections carried out by occupational safety and health officers, in accordance with section 32 of the new OSH Act, as well as on the safety and health committees established under section 9 of the Act in industrial and commercial establishments in EPZs.

With regard to the supervision of general conditions of work, the Committee notes that the 2007 Labour Institutions Act, which contains provisions on labour administration and inspection, applies to all workplaces, with the exception of the armed forces and the national youth service (section 4(1)). However, the Minister may, under certain conditions, exclude from its application “limited categories of employed persons in respect of whom special problems of a substantial nature arise” (section 4(2)) or “categories of employed persons whose terms and conditions of employment are governed by special arrangements” (section 4(3)). The Committee requests the Government to indicate whether any categories of workers have been excluded from the scope of the Labour Institutions Act under the above provisions and, if so, to specify the categories concerned.

Articles 6, 10, 11 and 16. Adequate means of action and the status and conditions of service of labour inspection staff. In its previous comments, the Committee emphasized the need to make budgetary resources available to the labour inspectorate on a sustainable basis to enable it to discharge its functions efficiently and to take appropriate measures to improve the status and conditions of service of labour officers. Referring to the freeze in public employment in the early 1990s, the Government indicates that the Ministry of Labour has requested an increase in its budgetary allocation for the recruitment of staff. In this regard, the Committee observes that, according to the annual report of the Labour Department for 2005 (the most recent report available), 82 posts of labour inspectors (category I) out of 106 were vacant in 2005. These vacancies not only entail fewer inspection activities, but also imply additional work for the labour officers in post, which inevitably affects the discharge of their regular duties.

Expressing concern at the persistent lack of labour inspection staff, the Committee urges the Government to take appropriate measures to recruit qualified staff and accordingly to strengthen the capacity of the labour inspection services. Referring to its previous comments on the office equipment and means of transport available to labour inspection staff, the Committee once again requests the Government to take measures to ensure that these resources are sustainable and to keep the ILO informed of any measures taken or envisaged to collaborate with political and financial decision-makers to that end.

Article 14. Reporting and investigation of occupational accidents and cases of occupational disease. The Committee notes that the notification of occupational accidents is provided for by section 21 of the OSH Act, under which the employer shall notify, in writing, the area occupational safety and health officer of an accident within seven days and inform him/her within 24 hours of the occurrence of a fatal accident. In addition, section 22 of the Work Injury Benefits Act provides that the employer shall report an accident to the Director of Occupational Safety and Health Services within seven days after having received notice of the accident or learned that an employee has been injured in an accident. The Director must also be informed in writing within 24 hours in case of a fatal accident (section 21).

With regard to the investigation of accidents, in response to the Committee’s previous request concerning the reasons for the disparity between the number of occupational accidents and the number of investigations conducted, the Government explains that this is due to the delay between the occurrence of accidents and their notification, which takes place through regional offices, with the result that it becomes impossible to investigate them. In order to enable its officers to investigate accidents without delay, the Labour Department has come up with its own accident reporting form (DOSH 1) to be completed by the employer and sent directly to the Department. The Government adds that the data on occupational accidents in the new forms are entered into an accident database and the compilation of statistics on occupational accidents by the Department, undertaken by its Information Centre, will enable it to identify high risk occupations and enterprises and therefore to prioritize its inspection activities. The Committee notes this information with interest.

It further notes that the Work Injury Benefits Act requires the Director of the OSH Services, once notified, to make such inquiries “as are necessary” to decide upon any claim or liability (section 23). According to the OSH Act, the Minister may appoint a tribunal of competent persons to carry out a formal investigation of occupational accidents and diseases (section 128). The Committee would be grateful if the Government would describe in detail the investigation procedure with a view to identifying and eliminating occupational hazards that have caused accidents, and if it would indicate, inter alia, the “competent persons” responsible for such investigations, the action taken following investigations and their results.

With regard to occupational diseases, the Committee notes that, in accordance with section 22 of the OSH Act, such cases must be notified by medical practitioners to the Director of OSH Services. It would be grateful if the Government would supply practical information on the functioning of this notification system, as well as on the action taken thereon. It also asks it to indicate whether medical practitioners have at their disposal a list of occupational diseases and, if so, to send a copy to the ILO.

The Committee would also be grateful if the Government would ensure that the data compiled by the reporting system on occupational accidents and cases of occupational disease and their impact on the number of investigations conducted are reflected in the next annual report of the Labour Department, in accordance with Article 21(f) and (g) of the Convention.

Articles 20 and 21. Annual report on labour inspection activities. The Committee notes with interest that, under section 42(1) of the Labour Institutions Act, the Commissioner for Labour shall, no later than 30 April of each year, prepare and publish an annual report of the activities undertaken in his/her department. Furthermore, it also notes with interest that this report shall contain at the least information on developments with regard to relevant laws and regulations, staff under his/her jurisdiction, statistics of places of work to be inspected and number of persons employed therein, findings in the course of inspection, statistics of industrial accidents and occupational diseases, statistics of persons with disabilities in workplaces and any aids being provided by the employer, statistics of proceedings brought before the industrial court or other courts, and statistics of stoppages of work in the various sectors of industry (section 42(2)).

Noting also with interest that section 25 of the OSH Act provides for the development and maintenance of an effective programme of collection, compilation and analysis of occupational safety and health statistics covering occupational accidents and diseases, the Committee requests the Government to keep the ILO informed of the progress made in establishing this system in practice and any difficulties that have been encountered. The Committee trusts that the next annual report of the Labour Department will contain all the above information and statistics on labour inspection activities as envisaged by the law and required by Article 21 of the Convention, including separate data on the inspections carried out in industrial and commercial establishments located in EPZs, if any.

Labour inspection and child labour. The Committee notes that the Government is currently implementing the Time-bound Programme for the elimination of child labour with ILO/IPEC and that, as of March 2007, a total of 7,000 children had been prevented from being engaged in or withdrawn from child labour in ten districts and five towns. The Committee further notes that the elimination of the worst forms of child labour is one of the priorities set by the Decent Work Country Programme (DWCP) approved in August 2007. However, it observes the Government’s indication that it has not made any budgetary allocation to the Child Labour Division to maintain it beyond the Time-bound Programme. The Committee trusts that the Government will ensure the allocation of adequate resources for this purpose. It also trusts that ILO technical assistance within the framework of the DWCP will enable the Government to strengthen the capacity of labour inspectors to deal with this issue and combat effectively the worst forms of child labour. Emphasizing the role that labour inspectors can play in the protection of the health, safety and welfare of children, the Committee requests the Government to provide information on the training of labour inspectors on child labour issues, and particularly its worst forms, the activities undertaken and the results achieved. It would be grateful if the Government would also indicate the measures taken or envisaged to ensure effective collaboration between the labour inspection services and the Child Labour Division so as to enable a more rational use of the human and material resources available.

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The Committee notes the Government’s report, the information in reply to its previous comments, the recently adopted legislative texts on working conditions and the annual reports for 2004 of the Labour Department and the occupational health and safety services as well as of the Labour Department for 2005, containing information and statistics on the labour inspection activities along with their results.

1. Availability of resources and efficiency of labour inspection activities. The Committee notes with interest that the equipment provided to the Ministry of Labour under the project on Strengthening Labour Relations in East Africa (SLAREA) by the acquisition of nine motorcycles, 12 computers, six printers, three fax machines and a photocopier have improved substantially the working environment of the inspection services. According to the Government, the motorcycles in particular were very useful for carrying out follow-up visits following complaints on child labour, while the office equipment (computers, printers and fax machines) have helped the provincial labour offices in preparing periodic inspection reports, management of correspondence related to contraventions and exchange of information with the Labour Department. In addition, the modern, multi-function photocopier machine installed at the head office has reduced costs in production of print work, especially inspection forms.

The Government indicates, furthermore, that the trainings conducted have also enhanced the level of awareness of inspectorate staff, thus improving their credibility.

Although these improvements appear to respond to financial concerns expressed in the abovementioned annual reports, they do so only partially and provisionally. For optimum use to be made, they must be reinforced by measures to make them permanent along with making resources available to the labour inspectorate to allow it to develop on the basis of needs. The establishment and input for an operational fund for maintaining road vehicles and office equipment and the acquisition of consumables (fuel, paper, ink cartridges, etc.) is highly desirable. Similarly, in order to strengthen the credibility of the labour inspectorate in general, measures to improve the status and conditions of service of labour inspectorate staff should be taken in order to attract and retain qualified and sufficiently motivated staff, shielded from any undue external influences. The implementation of such measures necessarily entails cooperation at the highest level between the labour inspection authorities and the political and financial decision-makers so that the budget allocated to labour inspection is fixed on the basis of the socio-economic objectives assigned to it, taking account of the extent and economic field to be covered, resources already available, and also, especially, the findings and needs shown in annual reports. The Committee trusts that the Government will soon be in a position to inform the Office of any measures taken or envisaged in this regard, as well as any difficulty encountered.

2. Labour inspection and child labour. The Committee notes with interest the establishment of a national databank on child labour accessible to all interested persons. According to the Government, 1,500 children have already been withdrawn from the labour market in eight districts and the issue of child labour has been incorporated into the development plan on economic recovery strategy for wealth and employment creation. The Committee notes with interest that the Government has undertaken to eradicate child labour and the employment of young persons in dangerous work by radical measures, such as schooling, readmission to school and the extension of the legal period of compulsory, free schooling, with efforts being directed particularly towards the identification of child heads of family and the implementation for them of measures on health, well-being, education and training, in both urban and rural areas.

The increase in unemployment of young people (16-39 years) during the economic depression, exacerbated by the lack of qualifications, resources and access to loans, has resulted, according to the Government, in turning some of these people to delinquency, begging and drugs. To remedy this situation, the Government states it has initiated collaboration with other actors and various programmes in the framework of the strategic plan, such as the creation of funds for the integration of young people, the promotion of self-employed work and other measures aimed at preparation for the move from school to work, vocational guidance, etc., and the supply of counselling and advice for running businesses.

The Government also indicates in its report that the Child Labour Division should, in the next financial year, receive resources to sustain its services beyond the Time-bound Programme. The Committee would be grateful if the Government could indicate the role played by the labour inspectorate in carrying out this programme and could supply information on the human, material and logistical resources made available for this purpose; the actions the labour inspectorate has conducted in this framework and the results; and the difficulties encountered.

3. Labour inspection and supervision of working conditions. Referring to its previous comments in which the Committee noted that many jobs had been created in the export processing zones (EPZs) and requested information on the real scope of labour inspectors’ powers in establishments in these zones, the Committee notes that, while the Labour Department is not barred from carrying out inspections, establishments in the EPZs are nevertheless exempt, under Ministerial Order Legal Notice No. 227/1990, from the application of the provisions of the Factories and Other Places of Work Act (CAP 514). Noting furthermore that enterprises in the EPZs are individually approaching the enforcing authority in pursuit of compliance certificates with the safety and health legislative provisions, the Committee requests the Government to keep the ILO informed of progress in the project to repeal the abovementioned Legal Notice No. 227/1990 and, in addition, to supply details and clarification on the fields of competence of the labour inspectorate in enterprises in the EPZs and the scope of the powers exercised in practice there by labour inspectors and to supply a copy of any text governing the working conditions and protection of workers employed there.

The Committee notes that, according to Legal Notice No. 31 of 2004 issuing rules on the Factories and Other Places of Work Act, employers are compelled to establish a safety and health committee at any factory or workplace which regularly employs 20 or more workers. The Committee requests the Government to indicate the line of division between the responsibilities of the labour officers and of the safety and health committees concerning labour inspection, in regard to the exercise of powers of examination and follow-up of contraventions as provided in Articles 12, 13 and 17 of the Convention.

The Committee also requests the Government to supply information on the practical scope of this rule, to specify whether it is intended or envisaged to subject employers operating in the EPZs to a requirement to establish safety committees and, if so, to supply copies of the relevant texts.

4. Activities and results of the labour inspection services. The Committee notes with interest the progress made in the presentation and analysis of information and statistics on inspection activities and their results by the Labour Department and the Directorate of Occupational Health and Safety Services. The Committee notes that, whereas the report concerning inspection on occupational health and safety contains figures relating to the establishments liable to inspection, information of this type is lacking in the report concerning the inspection of general labour conditions. It seems, in fact, that a considerable proportion of inspection activities for the latter focus on labour conflicts and their outcome. According to the Labour Department’s annual report, strikes and social conflict are most often unleashed through failure by the employers to fulfil their obligations in regard to payment of wages, dismissal conditions, employment conditions and wage conditions, and recognition of trade union rights in particular. The occupational health and safety inspection shows that in 2004, out of 2,382 workplaces inspected, out of which 751 were visited more than once, only one prohibition notice was issued, 41 improvements notices were served and some 30 were subject to legal proceedings. Yet, over the same period, 1,387 occupational accidents were reported, including 95 fatal accidents; according to the report, these figures reflect the situation only partially, and the number of victims is not given. The annual reports of the two competent administrations reveal the ineffectual nature of an essentially educational and teaching approach by the inspectorate and suggest, for greater efficiency, that the repressive function of supervising the relevant legislation should be given greater importance.

The occupational accident statistics show that no investigation has been carried out in the central region following 85 occupational accidents, including one fatal, or in the eastern region where 26 accidents were reported, including 19 fatal accidents, or again in the western region, despite there being 98 accidents, including four fatal ones. It is noted, furthermore, that 19 investigations were held on 103 accidents, including 19 fatal accidents in Nairobi, 13 for 132 accidents, including eight fatal ones in the Rift Valley, and 15 for 126 accidents, including 42 fatal accidents in the coast region. The Committee would be grateful if the Government would indicate the reasons for the disparity between the large number of accidents, including fatal ones, and the number of investigations conducted to establish their cause. It also requests the Government to indicate the measures taken or envisaged, on the one hand, to identify high-risk occupations and enterprises and, on the other hand, to carry out supervision of legal provisions relating to occupational health and security in them.

The Committee also requests the Government to communicate information on the follow-up given by the central inspection authority and by the other competent authorities to the findings and recommendations contained in the annual labour inspection reports.

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The Committee notes the Government’s brief report, in which it indicates that the information sent in reply to its previous comments will be forwarded as soon as it is available. It hopes that this information will be supplied as soon as possible so that it may be examined at the Committee’s next session and that additional information will be included on the following points.

1. Equipment and working environment of the inspection services. The Department of Labour’s annual report attached to the Government’s report describes the main operational difficulties that the various bodies of the labour administration come up against: the inadequacy of means of transport and the problems in maintaining existing means, the lack of computers and the poor working environment of the offices. It emphasizes the importance, for the credibility of the inspection services, of their ability to portray the best possible image to the social partners. The Department of Labour was able to acquire equipment thanks to the technical cooperation project Strengthening Labour Relations in East Africa (ILO/SLAREA). The Committee would be grateful if the Government would state how much of this equipment was allocated to the labour inspection services, indicating its nature and any resulting improvements in the operation of the inspection services.

2. Labour inspection and child labour. The Government also sent the final draft of the Ministry of Labour’s report: "National Child Labour Policy towards a Child Labour Free Society" which recommends, among other strategies that the inspection services should be reinforced so as to ensure, at the very least and until the objectives sought have been met, that the working conditions of children who are still obliged to work are improved, and that a database on child labour should be established and maintained. It also recommends that the issue of child labour should be incorporated into development plans and that it should be allocated resources in the national budget. The Committee hopes that the Government will provide information on the impact these recommendations have had in practice and on the role that labour inspectors play in the endeavours undertaken by the public authorities to combat child labour in the framework of the IPEC programme, in collaboration with the social partners and non-governmental organizations concerned.

3. Labour inspection and supervision of working conditions in workplaces located in export processing zones. Noting that employment has increased significantly in the past three years, particularly in export processing zones, the Committee would be grateful if the Government would provide an indication of the scope of the labour inspectors’ powers in the above workplaces and of the means at their disposal.

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Further to its previous comments, the Committee notes the Government’s report for the period ending May 2001 and the full information supplied in the annual reports of the Labour Department of the Ministry of Labour and Human Resource Development for 2000 and 2001. Noting the handwritten modifications made to the text of certain provisions of the Factories Act, the Committee would be grateful to be provided with a copy of the definitive consolidated version of the Act.

1. Staff, means of action and duties of the labour inspectorate (Articles 10, 11, 12 and 16 of the Convention). The Committee notes that, despite the increase in the staff of the labour inspectorate during the course of 2001, the number of inspections carried out fell substantially due to the inadequacy of the resources of the inspection services, particularly with regard to transport and the forms required for inspections. The Committee notes that, in the annual reports for 2000 and 2001, the Labour Commissioner indicates, among the measures necessary to improve the effectiveness of its services, the need for training on computer equipment with a view to the analysis of data in the fields covered by the Ministry. From the point of view of the Committee, it is also indispensable to ensure that labour inspectors benefit from the mobility and working conditions that are necessary to discharge the inspections which should take up the majority of their working time, and which is an important source of relevant information. With the disastrous effects of the AIDS pandemic, the most important of which is certainly the increasing number of child workers, often in activities which are harmful to their physical and mental health, and in a general environment that is increasingly dominated by informal economic relations, it is urgent for the Government to include amongst its priorities the strengthening of all the human, material and financial resources with a view to supervising the application of legal provisions respecting conditions of work throughout the country. The Committee hopes that the Government will be able to provide information in its next report indicating that real progress has been made in this respect.

2. Labour inspection and child labour. The Committee notes with interest the document entitled "Child labour policy", describing the magnitude of the problem related to the tragic AIDS pandemic and which sets out the institutional, educational, economic, social, legal and health measures envisaged to reduce the phenomenon. The Government is requested to provide particulars on the manner in which it is planned that the strengthening of the factory inspection services will ensure the protection of young persons against occupational hazards and to provide a copy of the "Guide to labour" prepared by the labour inspectorate and mentioned in the above document.

Noting that the Ministry of Labour and Human Resource Development has been designated as the focal point for the implementation and coordination of the child labour policy, but that the problem of child labour also lies within the responsibility of workers’ and employers’ organizations, non-governmental organizations, including the Kenya National Union of Teachers (KNUT) and local institutions with the support of donors, the Committee requests the Government to provide regular information on the action taken and its results, as well as on the role entrusted to labour inspectors in the implementation of the above policy in coordination with the newly created Child Labour Division and the National Steering Committee on Elimination of Child Labour.

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With reference also to its observation, the Committee notes the Government's reports and the documents annexed thereto, in particular the annual report from the Labour Department, containing information on labour inspection teams and their training during service, on statistics regarding inspection visits and their results, in particular information on the inspections regarding child labour and the annual report of the workers' compensation section for 1998 which includes statistics on occupational accidents.

Noting that representatives from the Department of Labour Administration attended a regional meeting in Harare in September 1998 on integrated labour inspection, the Committee would be grateful if the Government would transmit information on the conclusions of this meeting as regards the objectives of the Convention.

The Committee draws the Government's attention to the following points.

Articles 11, 16, 18 and 21(e) of the Convention. It appears from the information contained in the annual report of the Labour Department that financial constraints and staff shortages continue to affect labour inspection activities. However, difficulties with respect to means of transport were overcome by the use, where possible, of public transport, and often by walking, when the establishments to be inspected were located close to the premises of the inspectorate. The Committee recalls that it is imperative that all workplaces liable to inspection shall, in compliance with Article 16, be inspected as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions. However, statistics on occupational accidents reveal a worrying increase between 1997 and 1998, with the majority of these accidents occurring in the private sector. Noting the information regarding the amounts allocated to victims and their families, the Committee recalls the necessity, in conformity with Article 18, to take steps also to ensure that the national legislation provides for adequate penalties for violations of the legal provisions enforceable by labour inspectors, and that such penalties should be effectively applied. The Committee explains in paragraph 263 of its 1985 General Survey on labour inspection that adequate penalties are those fixed at a sufficiently high level to have a dissuasive effect and that it would be decidedly regrettable if employers preferred to pay fines because they found them more economical than taking often costly occupational safety and health measures. The Committee hopes that the Government will communicate information in its next report on provisions governing the penalties applicable in cases of infringements within the meaning of Article 18 or, should such provisions not exist, to take the measures necessary in this connection. The Committee reminds the Government that statistics of violations and penalties imposed must, in conformity with Article 21(e), be icluded in the annual inspection reports.

Article 15. The Committee notes that labour inspectors give consideration to anonymous complaints on the grounds that they are the reflection of a real problem. Recourse to anonymity in the submission of complaints suggests that the principle of confidentiality of the source of complaints, as specified under Article 15(c), is insufficiently secure. The Committee requests the Government to address this crucial question on which respect for legal provisions often depends, especially provisions relative to occupational safety and asks it to take steps to re-establish the confidence of workers in this sphere and to supply the ILO with information on all measures adopted accordingly.

Article 8. The Committee notes with interest the information regarding the ILO technical cooperation programme aimed at promoting equality for women in employment as well as the cooperation programme established with the UNDP regarding Gender Mainstreaming and Advancement of Women. It recalls, in this connection, that pursuant to this provision, both men and women shall be eligible for appointment to the inspection staff. The Government is requested to supply information on the manner in which effect is given to this provision which provides, inter alia and where necessary, that special duties may be assigned to men and women inspectors.

Article 20. The Committee requests the Government to indicate whether, as provided under paragraph 2 of this Article, the annual reports containing the information on the subjects listed in Article 20 are published. If not, it requests the Government to take all measures necessary in this connection and transmit information on these measures to the ILO.

Article 21(g). With reference to its earlier comments, the Committee notes the information that, in 1998, 244 medical cases were referred to the Director of Medical Services, of which 28 cases occurred in the public sector and the rest in the private sector. The Committee would be grateful if the Government would specify whether these are cases of occupational diseases and, if so, to provide information on the legal basis of identification of the occupational origin of certain diseases, as well as on the procedure for notification of occupational diseases. In addition, it requests the Government to take the measures necessary to establish a system preventing the risk of occupational diseases both in private and public enterprises as soon as possible.

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The Committee notes with interest the activities undertaken by the labour inspection services in collaboration with the International Programme on the Elimination of Child Labour (IPEC) against child labour. In particular it notes that IPEC-allocated resources have enabled the development of a training programme for inspection personnel on the most appropriate methods of combating child labour and on the role of the labour inspectorate in reinforcing application of the relevant legislation through inspection visits, through action related to educational advice and through proceedings initiated in respect of infringements. The training also includes activities to inform employers, trade unions, non-governmental organizations and the population in general on the breadth of the problem of child labour and its consequences; seminars were organized with the Ministry of Labour working with IPEC and with the participation of other ministerial departments to inform the social partners and other interested parties and raise their awareness of the problem.

The Committee also notes with interest that the increase in numbers of inspection visits over the period covered by the Government's report is due not only to the implementation of the strategy to combat child labour developed in collaboration with IPEC, but to the determination of the Labour Department to increase both the quantity and quality of inspections and also to the enthusiasm of the public servants concerned, eager to improve their individual results. The Committee has learned from information sources available to the ILO of progress on the Bill on children, which includes provisions on the functions of labour inspectors and on their empowerment to initiate proceedings against employers violating the rights of children. These same sources of information indicate that the labour inspectors intervene in the formulation of district policy, especially as concerns child labour, by participating actively on the District Children Advisory Committees (DCACs) and the District Development Committees (DDCs). Moreover, the inspection reports drawn up by the inspectors on the basis of very detailed forms have enabled production of a manual used by the inspectors to train partners in the elimination of child labour. The Committee hopes that the Government will continue to supply information on progress achieved by the labour inspectorate in carrying out its main duties and, in particular, on the impact of preventive and coercive action undertaken by the labour inspectors in combating child labour.

The Committee is addressing a request on certain points directly to the Government.

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Articles 10, 11 and 16 of the Convention. The Committee notes the information provided in the Government's report and in the 1996 annual report of the Directorate of Occupational Health and Safety Services (DOHSS). It notes the statistics provided on the number of inspections and the vehicles at the disposal of the labour department; the statistics of registered factories and of the number of workers employed as well as the information on the establishment of a database on labour inspection functions including all establishments visited by the labour inspection staff. The Committee notes the information that the number of inspections carried out in the last years has remained relatively low in comparison with the number of registered factories. This is confirmed by the chart of inspection visits which shows that the number of inspections after having progressed from 1990 to 1993, has been decreasing since 1994 through 1996. The Committee also notes that the inspection services are handicapped in the discharge of their duties by the inadequacy of financial resources, transport facilities, office accommodation, equipment and training. The Committee hopes that the Government will provide information on any steps taken to improve the human, financial and technical means at the disposal of the labour inspection to ensure that workplaces are inspected as often and as thoroughly as is necessary to ensure the effective application of the relevant labour legislation.

Articles 14 and 21. The Committee notes the information provided by the Government that industrial accidents and cases of occupational diseases are reported to the Directorate of Occupational Health and Safety Services. It notes, however, the indication by the Government that while statistics on occupational accidents are contained in the report of the Directorate, data on occupational diseases is not available for lack of resources. The Committee hopes that in future, statistics on occupational accidents as well as on occupational diseases will be compiled and published, such data being an important element in the evaluation of the impact of inspection on the safety and health of workers. It requests the Government to report on any progress made in this regard.

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Further to its previous comments, the Committee notes with interest the information provided by the Government in its report and the annual report of the Labour Department for 1994. The Committee also notes with interest the information that the benefits obtained from the completion of phase I of the ILO/Kenya Tripartite Labour Inspection Project have permitted the performance of the Labour Department and the Inspectorate in particular to be maintained in quality and in quantity. It hopes that the successful results of phase I will enable the continuation of the reforms started by obtaining funding for a phase II proposal. The Committee also hopes to revert to these positive developments under this Convention and under Convention No. 129 also ratified by Kenya.

Articles 14 and 21 of the Convention. Further to its previous comments, the Committee notes that the Government has not included information regarding the list of premises (7,000) that are subject to labour inspection as well as the number of workers employed therein, and the measures taken or contemplated to strengthen the inspection services with regard to notification of occupational diseases. The Committee further notes that, like previous reports, the annual Labour Department report for 1994 does not contain statistics on occupational diseases (Article 21(g)), and on the number of workplaces liable to inspection and the number of workers employed therein (Article 21(c)). The Committee hopes that all appropriate measures will be taken soon to include these particulars in future annual reports as required by these Articles of the Convention.

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The Committee notes the information provided by the Government in its report as well as the annual report of the Labour Department for 1991. The Committee also notes with interest the information and the attached documentation provided by the Government on the activities and goals achieved from 1991 to 1993 by the ILO technical cooperation project to strengthen labour inspection in Kenya. The Committee would be grateful if the Government would provide additional information on the following points:

Articles 8, 10, 11 and 16 of the Convention. The Committee notes with interest from the Government's report and the attached documentation on the ILO project noted above, that the number of inspections carried out increased from 3,601 in 1990 to a total of 16,132 in 1992, as a result of improved mobility of inspectors who were provided with proper transport, such as motorbikes. Please continue to provide information on the measures taken or contemplated to strengthen the staff of the inspection service throughout the country and to provide it with the transport and all other facilities necessary for the effective performance of its duties.

The Committee also notes with interest the Government's indication that there are 18 women inspectors, including six at senior management levels. Please continue providing information on the number of women appointed as inspectors and on any specific measures which promote the appointment of women inspectors.

The Committee further notes with interest the Government's statement that it is in the process of preparing a list of all premises (about 7,000) which are subject to labour inspection, as well as workers employed therein. The Committee hopes that with the establishment of such a list, it will be possible to inspect all industrial establishments (and agricultural undertakings as prescribed in Convention No. 129, ratified by Kenya in 1979) regularly. Please supply detailed information on any progress achieved in this respect. In addition, please continue to provide information on the measures that have been taken or are contemplated to strengthen the inspection service, particularly with regard to notification of occupational diseases (Article 14).

Articles 20 and 21. Further to its previous comments, the Committee notes that, like previous reports, the annual Labour Department report for 1991 does not contain statistics on occupational diseases (Article 21(g)), on the number of workplaces liable to inspection and the number of workers employed therein (Article 21(c)). In this respect, the Committee notes the Government's statement that in the future, all annual reports will be published within the time-limits set in Article 20 and will contain all the information required under Article 21. It hopes - as the Government anticipates - that all the appropriate measures will be taken soon to ensure that inspection reports are regularly compiled and published in accordance with these Articles of the Convention.

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The Committee notes the information provided by the Government in its report as well as the annual reports of the labour inspection services for 1989 and 1990. The Committee also notes with interest the information provided concerning the activities of a technical cooperation project, "Implementation of International Labour Standards: ILO Conventions Nos. 81, 129, 144 and 150; and Recommendations Nos. 81, 82, 133, 152 and 158", executed by the ILO, in the light of which it would make the following comments:

Article 21. For a number of years the Committee has commented that the Government's annual reports have not included statistics of occupational diseases (point (g)). This is the case also for the 1989 and 1990 reports most recently received. The Committee notes that the 1989 and 1990 reports similarly do not indicate the number of workplaces liable to inspection and the number of workers employed therein (point (c)); further, the 1989 report provides statistics of penalties imposed for violations (point (e)), but the 1990 report does not. As the Committee has pointed out in the past, publication of an annual inspection report is required by the Convention because such a report provides a mechanism for monitoring and improving essential inspection activities. While the Committee notes that the Government has provided annual reports with useful information, it hopes that measures can be taken (and in particular with the cooperation of the ILO project) to ensure that each specific requirement of this Article is met.

Article 11, paragraph 1(b), and Article 16. The Committee notes that a number of motorbikes are being provided by the ILO project to improve mobility of inspectors. Please describe the impact of this on the frequency of inspection visits.

The Committee would also be grateful if the Government would provide with its next report information on how particular activities of the ILO project, beyond generally providing training to staff of the inspectorate, are improving implementation of specific provisions of the Convention by, for example, setting up a system, including necessary regulations, for notification of occupational diseases (Article 14); improving reporting methods (Article 19); improving relations with and increasing contact between employers' and workers' organisations (Article 5); promoting the appointment of women inspectors (Article 8); or establishing a system for counting establishments subject to inspection and workers employed therein (Article 21(c)).

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The Committee takes note of the information supplied by the Government in reply to its previous direct request concerning the application of Articles 3, 10, 11 and 16 of the Convention.

Article 21. The Committee notes that the annual labour inspection report for 1988 contains no information on the laws and regulations under the control of the labour inspectorate, or on the statistics of industrial accidents and occupational diseases (points (a) and (g)). It hopes that future annual reports will contain all the information required by this Article.