|CHAPTER ONE: INTRODUCTION
1.2. The National Action Plan Formulation Process
Stakeholders’ Consultation [Page 11]
Given the wide range of business-related human rights concerns, the NBA coupled with the regional consultations were vital in the identification of the recurring thematic areas for the NAP. These are: Land and natural resources, Revenue transparency, Environmental Protection, Labour Rights and Access to remedy.
CHAPTER TWO: THEMATIC AREAS OF FOCUS
2.4. Labour [Pages 17 -19]
The Kenyan labour market is highly informal. Of the 19.3 persons active in the labour market, only 2.6 are in formal employment including in the private sector (Kenya National Bureau of Statistics (KNBS), 2018). Furthermore, 1 out of 4 jobs in the formal sector are held by casual employees, those with contracts of three months or less (KNBS, 2018).
Article 41 of the Constitution of Kenya guarantees every person the right to fair labour practices and confers specific rights on workers, employers, trade unions and employers’ organisations. Every worker is entitled to fair remuneration, reasonable working conditions, and 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 prohibition of slavery, servitude and forced labour under Article 30 and equality and freedom from discrimination under Article 27, 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 Counter Trafficking in Persons Act, 2010, Occupational Safety and Health Act, 2007, the Employment Act, 2007, the Labour Relations Act, 2007 and the Sexual Offences Act, 2006.
During the stakeholders’ consultations the following concerns were identified:
1) Sexual harassment is widespread and underreported, with women being the majority of victims. Fear of job loss is 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 recrutitment [sic] 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 cited as contributing factors.
2.5. Access to Remedy
There 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
Policy Actions [page 22]
The Government will:
7) strengthen regulations on the registration and oversight of recruitment agencies involved in the recruitment of Kenyans for employment in businesses abroad. It will also work with host governments to take appropriate measures to promote safe and fair labour migration including agreements on free exchange of information, and more stringent regulation of employment agencies. The government will also explore measures for providing legal and psychosocial support services to victims of labour abuse.;
3.2. Pillar 2: Corporate Responsibility to Respect Human Rights
b) Human Rights Policy commitments [page 24]
2. encourage recruitment agencies to provide any required repatriation, legal and psychological support to migrant workers who have suffered or been subjected to abuse abroad;
CHAPTER FOUR: IMPLEMENTATION AND MONITORING
4.1. SUMMARY OF POLICY ACTIONS [Annex]