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

1. Article 1 of the Convention. The Committee takes note of the very brief report submitted by the Government which contains little information regarding the Committee’s previous request for information on the contents, implementation in practice of its law and policy, or application of the Convention. The Committee further notes that following the recent labour law reform, a number of bills have been passed by Parliament, such as the Work Injuries Benefits Bill, the Labour Relations Bill, the Employment Bill, the Labour Institutions Bill, and the Occupational Safety and Health Bill. The Committee once again refers the Government to the criteria established in the report form of the Convention and requests it to provide in its next report up to date information on the various aspects of the Convention. Such information should also specify whether and which migrant workers are covered by the newly adopted labour legislation such as the Employment Bill, the Labour Relations Bill and the Occupational Safety and Health Bill, with an indication of the relevant provisions applying the Convention.

2. Statistical information on immigration and emigration flows. The Committee notes the information provided by the Government that the number of Kenyan citizens abroad is estimated at 2 million. While skilled and professionals migrate to Europe and North America, unskilled middle-level managers and semi-skilled mostly migrate to the Middle East. Noting the Government’s statement that the statistical data on the numbers, nationality and geographical distribution by occupation of male and female migrant workers in Kenya will be sent in due course, the Committee hopes that this information will be included in the Government’s next report.

3. Articles 1 and 9 of the Convention. Human rights of all migrant workers and protective measures relating to rights arising out of past employment. In the absence of any further information on this point, the Committee reiterates its previous request to the Government to provide information on legislative and other measures taken or envisaged to ensure respect of the fundamental rights of migrant workers in an irregular situation and of their rights deriving from previous employment, particularly as regards remuneration and social security.

4. Articles 2–7. Measures to address irregular migration. The Committee recalls that Part I of the Convention aims at bringing migration flows under control with the aim of preventing and eliminating abuses against migrant workers, and requests ratifying States to take measures in this regard (see General Survey on migrant workers, 1999, paragraphs 96–98). The Committee notes from the Government’s report on the Migration for Employment Convention (Revised), 1949 (No. 97), that the draft Sessional Paper on employment policy and strategies for Kenya provides for the development of policies and legislation to combat human trafficking. The Committee asks the Government to provide information in its next report on any policies and legislation that have been adopted or envisaged to combat human trafficking as well as additional information, including statistics on administrative, civil and penal sanctions applied in practice in the event of the unlawful employment of migrant workers, the organization of migration in abusive conditions and assistance provided wittingly to such migration. Please also include information on the situation of documented as well as undocumented migrant workers subject to abusive conditions of work, as well as their number, sex, nationality and sector of activity, and indicate how employers’ and workers’ organizations are being consulted with regard to the measures designed and implemented to prevent and eliminate irregular migration and abuse against migrant workers.

5. Part II of the Convention (equality of opportunity and treatment). The Committee recalls that national policies must not only promote but also guarantee equality of opportunity and treatment in employment and occupation and with respect to social security, trade union and cultural rights, and individual and collective freedoms for migrant workers and members of their families lawfully within the territory of the country of employment. Additionally, equality of opportunity and treatment extends to conditions of work of migrant workers in respect of themselves regardless of their gender, and in respect of national workers (Article 12(g)). The Committee recalls that the Government has recognized in previous reports the need to take into consideration the provisions of Article 14(a) of the Convention which allows States which have ratified the Convention to make a free choice of employment of migrant workers subject to the conditions that they have resided lawfully in the country for the purpose of employment for a prescribed period not exceeding two years. The Committee notes the Government’s statement that in Kenya, there is no comprehensive policy on migration yet but that the draft employment policy has a component on equality of opportunity and treatment for migrant workers. The Committee requests the Government to supply a copy of the Employment Policy, once adopted, with an indication of the specific actions taken to pursue and implement a national policy on equality of opportunity and treatment for male and female migrant workers and members of their families lawfully in the country, in accordance with Articles 10 and 12(a)–(g) of the Convention.

Article 8. Non-return in the case of incapacity of work. The Committee notes that the Government’s report does not contain any information regarding the application of Article 8 of the Convention. Being one of the provisions cited most often by governments at the time of the General Survey as being difficult to apply (see General Survey, op. cit., paragraphs 577–597), the Committee reiterates its request to the Government to provide information on the application of the principle that the authorization of residence and/or work permit shall not systematically be withdrawn from a migrant worker in an irregular situation in the event of loss of his employment.