Worker’s Rights – Kenya

2.6 Labour [Pages 12-13]

The Kenyan labour market is highly informal. As at 30th June 2019, 83% of the working population was in the informal sector5 . In 2019, male employees accounted for 64.5 per cent of the total wage employment in the modern sector. Majority of female employees were working in Education, Agriculture, forestry and fishing, Public administration and defence. Overall, casual employment registered a growth of 6.0 per cent and accounted for 23.4 per cent of the total wage employment (KNBS, 2020). Casual workers have less protections under the labour laws such as the right to collective bargaining or paid leave. The ILO refers to this as casualization of labour and has expressed concerns in the increasing use of casual labour in formal employment. While the current NAP has no specific actions on the informal sector, it is important to formulate policies for the proper oversight of this sector.

It is imperative that the labour market is regulated to ensure compliance with constitutional, legal and international standards. Several SDGs and ILO core conventions cover various aspects of working conditions including decent work and economic growth, reduction of inequality, quality education and gender equality. The SDG targets include: 1.3 (improve nationally appropriate social protection systems for all, particularly the poor and vulnerable); 2.3 (double the agricultural productivity and incomes of small[1]scale food producers, in particular women, indigenous peoples, family farmers, pastoralists and fishers); 4.5 (eliminate gender disparities in education and ensure equal access to all levels of education and vocational training for the vulnerable, including persons with disabilities, indigenous peoples and children in vulnerable situations); 5.2 (eliminate all forms of violence against all women and girls in the public and private spheres, including trafficking and sexual and other types of exploitation); and 8.5 (achieve full and productive employment and decent work for all women and men, including for young people and persons with disabilities, and equal pay for work of equal value). Others are 8.8 (protect labour rights and promote safe and secure working environments for all workers, including migrant workers, in particular women migrants, and those in precarious employment), and 16.2 (end abuse, exploitation, trafficking and all forms of violence against and torture of children).

Article 41 of the Constitution of Kenya guarantees every person the right to fair labour practices, and confers specific rights on workers, employers and trade unions and employers’ organisations. Every worker is entitled to fair remuneration, reasonable working conditions, the right to join and participate in the activities of a trade union and go on strike as a means of advocating for their labour-related rights. Employers are entitled to form and join employers’ organisations and participate in such organisations’ programs. Trade unions and employers’ organisations are entitled to organise and form new or join existing federations. Other constitutional rights related to labour include Article 30 which prohibits slavery, servitude and forced labour and Article 27 which guarantees equality and freedom from discrimination, specifically including the equal rights of women and men to opportunities in the economic sphere and the dictate that no person shall discriminate against another person directly or indirectly on grounds including sex, health status, religion, ethnic origin, disability and social origin.

Several statutes give effect to these labour-related constitutional guarantees, including those dealing with labour disputes, working conditions and protection against discrimination. Some of the critical statutes are the Occupational Safety and Health Act, 2007, the Employment Act, 2007, the Labour Relations Act, 2007, Childrens Act, 2001,HIV& AIDS Prevention and Control Act, 2006 and the Sexual Offences Act, 2006. During the stakeholders’ consultation the following concerns were identified:

1. Sexual harassment is widespread and underreported with women being the majority of victims- fear of job loss being a major factor in the reluctance to report. Furthermore there is low enforcement of the Sexual Offences Act, 2006;
2. Lack of access to maternity and paternity leave. While the law provides and protects both maternity and paternity leave, not all workers in the private sector are able to access this benefit for fear of job loss. Once again, enforcement of the law in this respect remains weak;
3. Low level of awareness on labour rights among workers (mostly women in low income or low skilled jobs) and employers;
4. Lack of effective regulation of recruitment agencies for migrant workers;
5. Lack of publicly available statistics disaggregated by sex and other vulnerabilities that could be useful in addressing sex and other forms of discrimination in the workplace; and,
6. Lack of effective remedies for victims of labour-related grievances resulting in high prevalence of unresolved labour-related grievances. A weak enforcement mechanism, in particular inadequate number of state labour inspectors and the lack of effective operational level grievance mechanisms were also cited as contributing factors.

2.7 Access to Remedy

[T]here are a number of legislative provisions regulating business conduct to protect those within Kenya’s jurisdiction from business-related human rights violations. Protection against discrimination on the ground of HIV/AIDS status, for example, covers those in employment. The same applies to the protection of discrimination against persons with disabilities, women and marginalised groups.

CHAPTER THREE: POLICY ACTIONS

3.1. Pillar 1: The State Duty to Protect [Pages 16-17]

Policy Actions

The Government will:

i.    Ensure continuous training for government agencies’ workers involved in the promotion and regulation of businesses on the State’s human rights obligations and the nexus to their various mandates and functions;

vii.    Sensitise relevant sections of the public especially women and other marginalised and minority groups on –

1. 1. 1. Land laws, including resettlement and compensation frameworks;
      2. Labour laws and the rights of migrant workers; and
      3. Environmental laws and standards;

3.2. Pillar 2: Corporate Responsibility to Respect Human Rights [Page 19]

Policy Actions

b) Human Rights Policy commitments

ii.    Encourage recruitment agencies to provide any required repatriation, legal and psychological support to migrant workers who have suffered or been subjected to abuse abroad;

3.3 Pillar 3: Access to Remedy [Page 20]

According to the UNGPs, State-based judicial and non-judicial mechanisms should be the primary avenue for accessing remedies by victims of corporate abuses. However, victims should also have access to operational-level grievance handling mechanisms established by businesses, where workers, local communities and civil society advocates acting on behalf of individuals and communities negatively impacted by businesses may lodge their complaints and receive a just outcome such as compensation, guarantee of non-repetition by the offender, apology, restitution and rehabilitation.

CHAPTER FOUR: IMPLEMENTATION AND MONITORING

ANNEX 1: SUMMARY OF POLICY ACTIONS