Demande directe (CEACR) - adoptée 2005, publiée 95ème session CIT (2006)

Referring to its observation under the Convention, the Committee requests the Government to provide information on the measures taken or envisaged with a view to bringing into conformity with the Convention the following provisions of the national legislation, to which the Committee referred in its earlier comments.

Article 1(a) of the Convention. 1. In its earlier comments the Committee noted that, under section 11(1) of the Societies Act, 1968, the Registrar may refuse to register a society, inter alia, where it is certified that such society is connected with any organization of a political nature established outside Kenya; under section 11(2), the Registrar shall refuse to register a society, inter alia, where it appears to him that the interests of peace, welfare or good order would be likely to suffer prejudice by reason of the registration of the society, or where the Minister has declared it to be a society dangerous to the good government of the Republic; the registration of a registered society may be cancelled, inter alia, on similar grounds under section 12(1) and (3) of the Act. According to section 4(1) of the Act, every society which is not a registered society or an exempt society is an unlawful society; as the Government has indicated, persons are liable to punishment under sections 5 and 6 of the Act for managing an unlawful society or being a member of such a society; if convicted, they may be sentenced to imprisonment, which involves compulsory labour.

2. The Committee notes the Government’s brief indication in the report that courts have strictly interpreted the above provisions of the Societies Act and have either fined or imprisoned offenders under the Act, but that the Act does not prescribe any form of labour as a punishment. However, as the Committee previously noted, sanctions of imprisonment involve an obligation of prisoners to perform labour. The Committee requests the Government to supply detailed information on the practical application of the provisions of the Societies Act, 1968, relating to the registration, cancellation or suspension of registration and prohibition of societies, supplying sample copies of the relevant court decisions and indicating the penalties imposed, as well as on any measures taken in this connection to ensure that no form of forced or compulsory labour (including compulsory prison labour) may be imposed in circumstances falling within Article 1(a) of the Convention.

3. In its earlier comments the Committee also noted that, under section 5 of the Public Order Act (Cap. 56), the police authorities are entitled to control and direct the conduct of public gatherings, and have extensive powers to refuse licences for public gatherings, that public gatherings are defined in such a manner as to cover meetings in what are in fact private premises (section 2), and that the penalty for contravention of these provisions may be imprisonment (section 17), which involves, as previously noted, an obligation to perform labour. The Government indicates in its report that the Statute Law (Repeals and Miscellaneous Amendments) Act No. 10 (1997) introduced amendments to section 5 of the Public Order Act, making it inapplicable to situations referred to as "excluded meetings". The Committee would appreciate it if the Government would communicate a copy of the amending text, as well as the information on the application of this provision in practice. Please also supply information on the further steps to eliminate any other discrepancies between the national legislation and the Convention, to which reference has been made in the report, in order to ensure that no form of forced or compulsory labour is imposed in circumstances falling within Article 1(a) of the Convention.

4. With reference to its observation under the Convention, and noting also the Government’s expressed commitment to take further steps to eliminate any other provisions that may appear contrary to the Convention, the Committee again requests the Government to communicate detailed information regarding:

(a)  the practical application of section 53 of the Penal Code concerning prohibited publications;

(b)  the measures taken or contemplated in regard to sections 10 and 17 of the Public Order Act (as amended) and the Prohibited Publications Order, 1968 (LN 100), read in conjunction with section 53 of the Penal Code, to ensure the observance of the Convention.

Article 1 (c) and (d). 5. In its earlier comments the Committee referred to sections 145(1)(b), (c) and (e), 147 and 151 of the Merchant Shipping Act, 1967, providing for certain disciplinary offences by seafarers to be punished by imprisonment involving an obligation to perform labour and permitting seafarers to be forcibly conveyed on board ship. The Committee notes the Government’s indication in its report that the process of reviewing of the Merchant Shipping Act is still in progress and that the above provisions have been brought to the attention of the task force. As the Committee has indicated previously, the provisions in question were based on the United Kingdom Merchant Shipping Act, 1894, and the Government may wish to refer, in its examination of the matter, to the revised provisions on discipline in the United Kingdom Merchant Shipping Act, 1970, in which account has been taken of the requirements of the Convention. The Committee expresses firm hope that the Government will soon be in a position to report on measures adopted to ensure the observance of the Convention on this point.

6. In its earlier comments the Committee also noted that imprisonment (involving an obligation to perform labour) may be imposed for participation in a strike:

(a)  under section 25 of the Trade Disputes Act, where the strike has been prohibited by the Minister under his powers under sections 19, 20 and 21 of the Act;

(b)  under section 28 of the Act, where a strike has been prohibited by the Minister under sections 30 and 31 in any essential service (which, according to the first schedule of the Act, includes not only essential services in the strict sense of the term, but also more general services such as undertakings engaged in the distribution of fuel, petrol and oil, transport services provided by the Kenya Railways, and port and dock services).

7. The Committee notes the Government’s indication in its report that measures have been taken to ensure that any punishment for participation in unlawful strikes does not include forced labour. It requests the Government to describe such measures and expresses firm hope that the abovementioned provisions will be reviewed in the light of Article 1(d) of the Convention, so that any prohibition of strikes under sections 19, 20, 21, 30 and 31, punishable under sections 25 and 28 by imprisonment (involving an obligation to perform labour) be limited to cases where the interruption of services would endanger the life, personal safety or health of the whole or part of the population. It requests the Government to report on measures taken to ensure the observance of the Convention in this respect.