Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

1. Article 1 of the Convention. Information on national policies, laws and regulations. The Committee notes the Government’s statement that the draft Employment Bill includes provisions to ensure the protection of migrant workers and their families who are lawfully in the country. It further notes the information contained in the Government’s report that the draft Sessional Paper No. 6 of 2006 on employment policy and strategies for Kenya includes the development of policies and legislation to provide a framework for promoting labour migration and combating human trafficking. Strategies include, among others, the facilitation of regulations and operations of foreign employment as well as training and skills programmes for the external labour market. Other strategies in the policy paper include the posting of labour attachés in selected countries; the identification of Kenyan diaspora and developing policies to enable them to participate in national development, enhancing the administration of foreign employment; and entering into bilateral agreements with receiving countries to ensure protection of Kenyan migrant workers. The Government further indicates that it has established a diaspora remittances committee and is developing a draft diaspora policy. The Committee is aware that new labour laws including the Employment Bill have been passed by Parliament. The Committee asks the Government to provide copies of the new employment legislation with an indication of the relevant provisions applying the Convention as well as a copy of the Diaspora Policy and the new Employment Policy, once adopted, and information on the measures and programmes to implement the strategies relating to labour migration. Please also provide information on the activities of the diaspora remittances committee.

2. Article 2. Services and assistance to migrant workers. The Committee notes that the Government has established a diaspora desk in the Ministry of Foreign Affairs to deal with diaspora issues. The Committee asks the Government to provide further information on the specific mandate and services and assistance provided by the diaspora desk to Kenyan workers seeking employment abroad, as well as any other information on the services and assistance provided to migrants coming to Kenya for employment.

3. Article 3. Steps taken against misleading propaganda. The Committee notes from the Government’s report that the draft Employment Policy provides for the development of polices and legislation to combat human trafficking and that the Government has supported the Kenya Association of Private Employment Agencies (KAPEA) to prepare a code of conduct and a constitution. In view of the growing role of private agencies in the international migration process, the Government is asked to give additional information regarding the measures adopted or envisaged to regulate the activities of private agencies, with a view to protecting migrant workers against any abuse and the penalties for offences, particularly with regard to the dissemination of erroneous and misleading propaganda. Please also provide further information on any policies and legislation adopted relating to human trafficking that protect both immigrant and emigrant workers against abuse resulting from false information on the migration process.

4. Article 6. Equality of treatment. The Committee notes the Government’s statement that the Employment Bill places a duty to all persons involved in employment administration to promote and guarantee equality of opportunities for all persons who, as migrant workers or as members of their families are in Kenya. It also provides a definition of discrimination and prohibits direct or indirect discrimination against an employee in employment policy or practice. Noting further from the Government’s report on the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143), that the draft Employment Policy has a component on equality of opportunity and treatment for migrant workers, the Committee hopes that the Employment Policy, once adopted, and the new Employment Act will ensure that migrant workers lawfully, in the country, will be no less favourable than that applied to the country’s nationals in respect of remuneration, trade union rights, accommodation, taxes, social security and access to the justice system, regardless of their nationality, race, religion or sex in accordance with Article 6(1) of the Convention. The Committee asks the Government to supply a copy of the new legislation and information on its practical application as to the items listed in paragraphs (a)–(d) of Article 6(1), as well as information on the practical measures taken to implement the component on equality of opportunity and treatment for migrant workers under the new Employment Policy.

5. Article 8. Maintenance of residence rights of permanent workers. The Committee recalls paragraphs 600–608 of its General Survey on migrant workers of 1999 concerning continued residence in the case of incapacity for work. In the absence of any further information on this point, the Committee reiterates its requests to the Government to supply information on the practical application of maintenance of right of residence in the event of unfitness for employment of migrant workers admitted on a permanent basis.

6. Parts III–V of the report form. Enforcement and practical application. The Committee notes from the information supplied by the Government in the International Labour Migration Survey (2003) that in Kenya, there is a regular labour inspection system covering all employees, whether nationals or migrant workers. The Committee requests statistical information on the results of these inspections, as well as available information on the number, places of origin, and sector of activity disaggregated by sex of migrant workers.