Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Repetition

The Committee notes the adoption of the Constitution of Kenya, 2010, which contains provisions relating to the Bill of Rights (Chapter 4), including, in particular, provisions prohibiting slavery, servitude and forced labour (article 30), as well as provisions which guarantee freedom of expression (article 33) and freedom of the media (article 34), the right of peaceful assembly, demonstration and picketing (article 37) and the right to form a political party and to participate in its activities (article 38(1)).

Article 1(a) of the Convention. Penal sanctions involving compulsory labour as a punishment for expressing political views. Penal Code and the Public Order Act. For many years, the Committee has been referring to certain provisions of the Penal Code and the Public Order Act, under which sentences of imprisonment (involving compulsory labour under Rule 86 of the Prison Rules) may be imposed as a punishment for participating in certain meetings and gatherings or the publication, distribution or importation of certain kinds of publications. The Committee has been referring, in particular, to section 5 of the Public Order Act (Cap. 56), under which the police is entitled to control and direct the conduct of public gatherings and has extensive powers to stop or prevent the holding of public gatherings, meetings and processions (section 5 (8)–(10)), contraventions being punishable with imprisonment (sections 5(11) and 17), which involves compulsory labour. The Committee has been also referring to section 53 of the Penal Code, under which printing, publishing, distributing, offering for sale, etc. of any prohibited publication is punishable with imprisonment; under section 52 of the Penal Code, any publication can be declared a prohibited publication, if it is necessary in the interests of public order, public morality or public health.

The Committee recalls that Article 1(a) of the Convention prohibits the use of “any form of forced or compulsory labour”, including compulsory prison labour, as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. Referring to paragraph 303 of its 2012 General Survey on the fundamental Conventions concerning rights at work, the Committee points out that the Convention does not prohibit punishment by penalties involving compulsory labour of persons who use violence, incite violence or engage in preparatory acts aimed at violence. But sanctions involving compulsory labour fall within the scope of the Convention if they enforce a prohibition of the peaceful expression of views or of opposition to the established political, social or economic system, whether the prohibition is imposed by law or by an administrative decision. Such views may be expressed orally or through the press or other communications media or through the exercise of the right of association (including the establishment of political parties or societies) or participation in meetings and demonstrations.

The Committee observes that the scope of the provisions of the Penal Code and the Public Order Act referred to above is not limited to violence or incitement to violence and may lead to the imposition of penalties involving compulsory labour as a punishment of various non-violent actions relating to the expression of views through certain kinds of publications and the participation in public gatherings.

The Committee therefore expresses the firm hope that the provisions of the Penal Code and the Public Order Act referred to above will be brought into conformity with the Convention (e.g. by limiting their scope to acts of violence or incitement to violence or by replacing sanctions involving compulsory labour with other kinds of sanctions, such as fines) and that the Government will soon be in a position to report on the progress made in this regard.