ATC230518: Report of the Portfolio Committee on Employment and Labour on an International Study Tour to Kenya, dated 17 May 2023

Employment and Labour

Report of the Portfolio Committee on Employment and Labour on an International Study Tour to Kenya, dated 17 May 2023

The Portfolio Committee on Employment and Labour, having undertaken an international study tour to Kenya from 27 March to 1 April 2023, reports as follows:

Background

The Department of Employment and Labour (Department) is currently in the process of developing the National Labour Migration Policy (NLMP). The Department engaged the International Labour Organisation (ILO) in the development of the NLMP to improve migration management coordination. The policy will help address citizens’ concerns, especially for those at low and medium levels of skills. It will also identify scarce and critical skills needed to boost the country’s economy.

The Portfolio Committee on Employment and Labour has oversight over the Department and therefore has to be ready to interrogate the policy when it is tabled before it. Therefore, the Committee has to conduct its research on the experiences of other countries with labour migration and how it is managed. Kenya was identified as a suitable country to benchmark on labour migration challenges for the following reasons:

In terms of migration, Kenya is an important hub for irregular migrants in the East African region. It is both a country of destination and transit for asylum seekers, refugees and economic migrants from neighbouring countries such as Ethiopia, Somalia, South Sudan and other countries such as Eritrea, Sudan, the Democratic Republic of Congo (DRC) and Rwanda.
Compared to many of its neighbours, Kenya is politically relatively stable and well developed.
In addition, its geographic location, good infrastructure – both for plane and road travel – as well as already established migrant communities underpin the role of Kenya as an important irregular migration hub in the region.

Refugee flows from the neighbouring countries started in the early 1990s, when these countries were affected by conflicts (conflict-induced displacement) and/or incidences of extreme droughts and famine (disaster-induced displacement). Most of these refugees received their status on a prima facie basis due to the severity of problems during those times. Evidence shows that besides having been a major host of refugee populations, there have been increasing numbers of economic migrants coming to the country. This includes labour migrants from countries like India, Bangladesh and Pakistan. While labour migrants often arrive without proper documentation, they may be able to obtain fake or real ones by paying bribes, as well as to avoid arrest by paying off immigration and police officers.

Kenyan migration policies seem more advanced and comprehensive compared to most other countries in the region. Existing legislation regulates immigration (entry, stay, exit, required travel documents, and naturalisation), migrant workers’ rights and employment, as well as the rights and protection of refugees and IDPs. In addition, Kenyan law criminalises human trafficking and smuggling and provides for protection against these crimes. Remarkably, Kenya is one of the few countries in the region, which also addresses labour migration, mainly to protect migrants’ rights abroad.

In 2006 the International Organisation for Migration (IOM) in collaboration with the Kenyan Ministry of Labour and the Kenya Association for Private Employment Agencies (KAPEA) developed a code of conduct for foreign employment agencies to combat human trafficking and exploitation. This was also complemented in 2008 through IOM assistance to the Ministry in developing a website providing information on human trafficking and regular means of migration, including a list of authentic employment agencies.

The Kenyan Government acknowledges the multiple dimensions, challenges and potentials of migration. Key policy in the field of migration is the Kenyan National Migration Policy.

Introduction

The Portfolio Committee on Employment and Labour decided to undertake a study tour to Kenya.

This report contains a chronological account of the journey of the Committee to Kenya. It provides a summary of the meetings that were held with different stakeholders and the relevant ministries in the host country. The report also documents important issues regarding the visited country.

Purpose of the study tour

The Committee’s aims for embarking on an international study tour included the following:

To observe how Kenya manages to deal with the impact of immigrants in the labour market. This s to gather related background information that can be transferred domestically.
To assess how institutional and regulatory bodies in Kenya are dealing with third country nationals coming for legal immigration or international protection.
To assess the migration trends and developments in Kenya over the past ten years.
To assess the Kenyan migration policy so as to ascertain the guiding principles of the policy and how it integrates immigrants into the labour market and communities.
To assess the current challenges or opportunities brought by immigration.
To assess how the Kenyan government addresses challenges in public international law and the international protection of immigrants.
How is the Kenyan government’s legal and regulatory environment for immigrants structured?
To learn from the Kenyan migration policy how to manage the phenomenon of emigration and providing support for Kenyan citizens working in other countries.
To look into what are the interdisciplinary debate and proposals for dealing with the ever-growing pressure of immigration in Kenya.

Composition of Delegation

The Parliamentary delegation comprised of the following Members and Support Staff:

Members of the Committee

Ms ML Dunjwa, MP (Chairperson and Leader of the delegation)
Mr M Nontsele, MP
Ms PP Makhubele, MP
Ms AS Zuma, MP
Ms CN Mkhonto, MP
Mr SL Ngcobo, MP

Support staff

Mr Z Sakasa (Committee Secretary)
Mr S Ngcobo (Content Advisor)

Appreciation of stakeholders that met with the Committee during the study tour

The Committee appreciates the assistance of the South African High Commission in Kenya, His Excellency, Mr MJ Mahlangu. The hospitality and courtesy the delegation received is greatly appreciated. Furthermore, the Committee acknowledges the stakeholders that are listed in the following paragraph for contributing in making the study tour a success.

Kenya Study Tour

The tour took place from 27 March to 1 April 2023. The Committee met with the following key stakeholders:

South African High Commission;
Kenya Association of Private Employment Agencies (KAPEA);
Ministry of Labour and Social Protection;
Departmental Committee on Labour and Social Protection;
Select Committee on Diaspora and Migrant Workers;
Federation of Kenya Employers (FKE); and
Central Organisation of Trade Unions (COTU).

Meeting with the South African High Commission (SAHC), 27 March 2023

The South African delegation met the South African High Commissioner, His Excellency Mr Mahlangu, who was accompanied by SAHC staff, Mr E Kgopa and Ms S Maanzo on 27 March 2023. The Chairperson and leader of the South African delegation, Ms ML Dunjwa introduced the staff Members accompanying the delegation and asked Members of the delegation to introduce themselves. The Chairperson proceeded to make opening remarks, which outlined the purpose of the study tour.

The Commissioner then took the delegation through general issues affecting the Republic of Kenya, which covered the following areas:

Political Situation

The general elections were held in Kenya on the 9th August 2022. This was the third general election and the fourth presidential one since the promulgation of the 2010 Constitution. The then incumbent president Mr Uhuru Kenyatta was not eligible for a third term according to the Constitution of the Republic of Kenya.

Dr William Ruto was elected President of Kenya with 50.5% of the vote, defeating Mr Raila Odinga who received 48.85% of the vote. On 22 August 2022, Mr Odinga filed a petition with the Supreme Court of Kenya challenging the results of the elections. On 5 September, the Supreme Court rejected the challenge and upheld Dr Ruto’s victory.

Observers, including SAHC, had described the elections as largely peaceful and transparent. Mr Odinga said he would respect the court verdict, although he still claimed victory.

There is no political party in Kenya that can get an outright majority during elections. Hence, the country is governed through political party coalitions. The current governing coalition is the Jubilee coalition. It comprises the Jubilee Party led by Mr Uhuru Kenyatta, Kenya African National Union led by Mr Gideon Moi and United Democratic Alliance lead by Dr William Ruto. The Jubilee coalition occupies 37 of the 67 seats in the Senate and 186 of the 349 seats in the National Assembly.

The opposition coalition is called NASA and is dominated by the Orange Democratic Movement (ODM) led by Mr Raila Odinga. Other political parties which are part of this coalition are Wiper Democratic Movement Kenya (WDM-K), Amani National Congress (ANC), Forum for the Restoration of Democracy-Kenya (FORD-K), The Patriotic Party (CCU) and the Muungano Party (MP). The NASA coalition occupies 24 of the 67 seats in the Senate and 125 of the 349 seats in the National Assembly.

Kenya’s ethnic groups can be divided into three broad linguistic categories namely Bantu, Nilotic and Cushite. The largest ethnic group, the Kikuyu makes up 20% of the nation’s total population. The five largest, ethnic groups, Kikuyu, Luo, Luhya, Kamba and Kalenjin, account for 70% of the total population. While an asset, Kenya’s ethnic diversity has also led to disputes or exploited for political expediency. The principal non-indigenous ethnic minorities are the Arabs and Asians.

Mr Odinga recently called for mass protests across the country as a result of his dissatisfaction with the August 2022 election results and the rising cost of living. The right to protest is enshrined in the constitution of Kenya under article 37. Article 37 states:

“Every person has the right, peaceably and unarmed, to assembly, to demonstrate, to picket, and to present petitions to public authorities.”

The right to protest is also affirmed by international instruments to which Kenya is a signatory. These include the African Charter on Human and People’s Rights and the International Covenant on Civil and Political Rights.

Protests began on 15 August 2022 when the presidential election results were declared. After six months of calm, these protests recently took to the streets. The opposition called for demonstrations twice a week (Mondays and Thursdays) from 20 March until the government accedes to its demands.

After two weeks of violence, where at least three people died, several others injured and property vandalised, Dr Ruto asked the opposition to call off the protests. He suggested that the issue of the reconstitution of the electoral body could be revisited. In response the opposition suspended the protests.

South Africa – Kenya Relations

The two countries have good diplomatic relations. The President of South Africa, His Excellency Mr Ramaphosa visited Kenya in 2022 after the elections and was welcomed by his counter-part, His Excellency Dr William Ruto. This meeting resulted in the establishment of the Joint Commission on Cooperation between the two countries. A review of the Memorandum of Understanding (MoU) was also conducted last year.

Relations between these two countries were further strengthened when South Africa accorded Kenyan citizens visa-free visit status for a period of 90 days. Kenyans are reported to frequent South Africa for several reasons including medical and professional.

However, Kenya is used by its neighbouring countries in East Africa as a conduit to South Africa. There is a significant presence of Somalians in both Kenya and South Africa. Somalians and Pakistanis use Kenya as a route to South Africa. Differentiating between Somali-Somalians and Kenya-Somalians is a challenge. Hence the Somalians from Somali would settle in Kenya and acquire citizenship, which they later use to enter South Africa. Other nationals who use Kenya as a route to South Africa include Ugandans, South Sudanese and Ghanaians.

There is a significant presence of South African companies in Kenya. They range from financial services providers to retailers e.g. ABSA Bank, Discovery, Foschini Group and GAME. However, the economic relations between the two countries is skewed in favour of South Africa. South Africa is exporting more to Kenya than it is importing from Kenya. High Level Committees have been established to address this matter.

Meeting with the Kenya Association of Private Employment Agencies (KAPEA), 28 March 2023

The meeting took place at the South African High Commission offices on 28 March 2023. The KAPEA delegation was led by Chairman, Mr Vincent Mbaki. He informed the delegation that the association is composed of employment agencies whose purpose is to source employees for employers.

Unlike other countries that prefer to enter into Memoranda of Understanding, Qatar, Saudi Arabia and United Arab Emirates have concluded bilateral agreements with Kenya as a labour sending country. KAPEA trains Kenyans in preparation for sending to these countries as domestic workers. These countries provide funding for training of these workers. KAPEA does the screening, vetting and medical assessment of these workers before training and sending them to these labour receiving countries. Training includes learning the culture of the labour receiving country. Recently, training in basic Arabic has been included in the syllabus to improve communication and understanding between workers and employees. The Ministry of Labour and Social Protection, Interior Ministry as well as the Ministry of Foreign Affairs are involved in this exchange.

KAPEA responded as follows to some of the questions raised by Members of the delegation:

Asylum seekers from neighbouring countries experiencing instability such as Somali and Ethiopia are housed in refugee camps. This is done for security reasons and the United Nations is involved in funding their upkeep.
Asylum seekers are not eligible for employment.
Kenyan embassies have labour desks to support Kenyans employed in those particular countries.
KAPEA keeps records of all domestic workers that they send outside the country.
A worker must be 21 years and above to qualify to be sent to work abroad.
Kenya has a national unemployment rate of 6.6%.
According to KAPEA, it is easy to do business in Kenya. However, governments retard economic growth through imposition of taxes.
There is high demand for carpenters in Poland.
Employers are not allowed to employ a foreign national to do the job that can be done by a Kenyan.
Records of serious criminal offences are not expunged, only records for petty offences are.
There is a problem of substance abuse among young people in Kenya due to lack of meaningful engagement.

Meeting with the Ministry of Labour and Social Protection, 29 March 2023

The meeting took place at the boardroom of the Department of Labour and Social Protection on 29 March 2023. The delegation of the Ministry was led by the Principal Secretary accompanied by the Administration Secretary, Acting Labour Commissioner, Deputy Labour Commissioner, Director: Strategy and Quality Management, Human Resource Planning and Development Manager, Communication Advisor, Technical Advisor and others.

The South African delegation was accompanied by a staff member from the SAHC, Mr E Kgopa. The Chairperson proceeded to outline the purpose of the Study Tour and the reason for choosing Kenya. The choice of an African country over a European one was informed by the similarities in terms of socio-economic environment.

Furthermore, the Chairperson outlined the organogram of the South African Department of Employment and Labour including programmes of the Department such as Inspections and Enforcement Services and Public Employment Services; Funds of the Department namely, Unemployment Insurance Fund and Compensation Fund; other entities falling under the Department including Commission for Conciliation, Mediation and Arbitration. The Chairperson also mentioned that the mandate of the Department had been expanded from Department of Labour to Department of Employment and Labour. However, the Chairperson emphasised that this does not imply that the Department is now responsible for creating employment, rather it is still responsible for creating an environment that is conducive to employment creation.

The purpose for the oversight visit as outlined by the Chairperson is to learn from Kenya how they manage labour migration, challenges regarding employment of foreign nationals and which sectors of the economy are mostly affected. The Acting Labour Commissioner briefed the Parliamentary delegation as follows:

The legal framework of labour migration is contained in the following major legislation:

Employment Act
Citizenship Act
Immigration Act

Employment Act prohibits discrimination in employment. Terms and conditions of employment afforded to foreign national are similar to those available to local employees. Foreign nationals are entitled to benefits during the course and at termination of contracts. Kenya does not have employment quotas but the principle is that all jobs are reserved for Kenyan citizens except where a suitably qualified citizen cannot be found. In that instance the prospective employer applies for the work permit for prospective employee to the Department of the Interior. The Department of Labour and Social Protection is involved in scrutinising the applications. The Managing Director issues the permit if he/she is satisfied that the required skill could not be sourced locally.

Kenya is considering establishing a framework for regulation of Kenyans who work in other countries. The manager for National Employment Authority advised that caution must be exercised when concluding major contracts especially in construction industry so as to avoid importing workers for jobs that can be done by locals.

In response to probing questions from Members of the parliamentary delegation, the following responses were provided:

The National Bureau of Statistics is responsible for compiling national statistics, including labour statistics. According to the Bureau, the unemployment rate stood at 6.6% in year 2022. Kenya academic institutions produced about 900 000 graduates per annum and approximately 150 000 of those get employment. Youth unemployment is extremely high in Kenya, estimated at approximately 80%.
The Kenya Department of Labour and Social Protection is working closely with the Department of Immigration regarding labour migration. The two departments are considering integrating their information systems so as to closely monitor the number of labour immigrants in the country.
Majority of immigrants in Kenya come from Somalia as a result of instability in that country. Other immigrants are from neighbouring countries such as Ethiopia. There are refugees from around 11 East Africa countries in Kenya. Majority of labour migrants in Kenya work in Oil and Gas industry. There are also immigrants from China. Most Kenyan workers emigrate to Western Europe and the Gulf Region.
Kenya has both the general national minimum wage and the sectoral minimum wage. There are about 17 sectoral minimum wage determinations in Kenya. There is also professional differentiation within sectors.

Meeting with the Portfolio Committee on Labour and Social Protection and Select Committee on Diaspora and Migrant Workers, 30 March 2023

The meeting took place at the Senate section of Parliament of Kenya on 30 March 2023. Chairpersons of both Committees welcomed the delegation of the South African Parliament and both made opening remarks. The leader of the South African delegation outlined the purpose of the study tour, the reason for choosing Kenya for the study as well as the work of the Portfolio Committee on Employment and Labour and the structure of the Department and entities reporting to it.

The Chairperson of the Parliamentary Committee on Labour and Social Protection identified the extremely high youth unemployment rate as the major challenge faced by Kenya. Consequently, the national Youth Employment Agency was established in 2016, which was later changed to National Employment Authority to accommodate other unemployed persons. He acknowledged that Kenya has hundreds of thousands of its workers in other countries and about 80 000 in Saudi Arabia alone. The National Employment Authority (NEA) monitors employment agencies to ensure that workers are properly skilled and not exploited. The National Industrial and Training Authority, which falls under NEA provides training of four weeks’ duration and an examination thereafter before workers are sent to countries that are in bilateral agreements with Kenya. These are Qatar, Saudi Arabia and United Arab Emirates.

Furthermore, the Chairperson informed the delegation that Kenya is in the process of developing a National Labour Migration Policy. The Labour Migration Management Bill is to be tabled before Parliament in the near future.

In response to questions from Members of the South African delegation, the following information was provided:

Youth in Kenya is defined as the person between the ages of 18 and 35 years. Kenyan Parliament has established a Young Parliamentary Association for young members of Parliament across party lines. The purpose is to mentor young parliamentarians into leadership positions within Parliament.
The official retirement age in Kenya is 60 years. However, there is no retirement age for public representatives such as the Members of Parliament.
Professionals from other countries who want to come and work in Kenya must first have their qualifications verified by the Commissioner for Higher Education in Kenya. They must also acquire the work permit before they can be employed in Kenya.
Kenya has a challenge of asylum seekers more than labour migrants. They come from neighbouring countries such as Somalia and Ethiopia as a result of instability in those countries.
Kenya universities offer academic programmes based on market demand not the unique needs of Kenya.
The preferred destinations for Kenyan labour migrants are South Africa, United States of America and Canada.
Affirmative action is enshrined in the constitution of Kenya and therefore applies to both public and private sector. The only challenge experienced is compliance.
Kenya does not have job quotas for foreign nationals. However, multinational companies sometimes insist on particular nationals being Chief Executive Officers.
Kenya has 290 Technical and Vocational Education and Training (TVET) colleges.

Meeting with the Federation of Kenya Employers (FKE), 30 March 2023

The Parliament delegation met FKE management at their offices in the afternoon of 30 March 2023. The delegation was met by the Chief Executive Officer (CEO), Ms Jacqueline Mugo. The leader of the delegation outlined the purpose of the meeting and the CEO gave a brief presentation on the organisation.

The FKE is the most representative national employers’ organisation in Kenya founded in 1959. It plays both an advocacy and service role. The Federation influences labour market policy and regulatory environment through advocacy aimed at enhancing business growth and development. FKE also provides direct services to its members in the areas of industrial and labour relations, employment matters, legal representation and learning and development.

FKE services include:

Employment and industrial relations
- The Federation promotes fair labour practices and helps members to make the right employment and labour relations decisions, through guidance and advice on a broad range of issues.
Legal services
- FKE offers legal advice, representation and consultation to members throughout the country on complex employment and labour issues. FKE has been representing members since 1959, at the Employment and labour Relations Court (ELRC) and other courts.
Research and policy advocacy
- The Federation conducts research on legal regulatory and policy matters to aid in its fact-based advocacy. The research covers economic and social spheres, with particular emphasis on labour and employment matters that affect the business environment.
Learning and development
- FKE conducts programs to build capacity of employers to enable them adapt and thrive in a fast-changing world. The program covers training on labour laws, labour relations, discipline management, employee wellness, and leadership development among others.
Organisational development
- Effective employer-employee relationship management is key to organisational success and achieving competitive advantage. In this regard, FKE supports employers by providing effective management solutions.
Partnerships and projects
- FKE forges strategic partnership projects that enhance capacity to adopt international labour standards and practices for the good of employers in Kenya.
Events and networking
- FKE hosts various events throughout the year where they bring together local and international experts in employment and social policy.
Female future leadership programme
- This program focus is on helping organisations meet the constitutional requirement for gender equity by equipping women in leadership pipeline with techniques that enable them to successfully navigate and compete for leadership roles in the workplace. These techniques increase capacity for women to be more competent as leaders in management positions, decision making processes and on corporate boards.
eWaajiri
- This is the members’ service portal that enables members to access FKE services conveniently online.

In response to questions from Members of the delegation, the CEO provided the following information:

Federation of Kenya Employers (FKE) is registered as a trade union for private sector employers.
FKE is recognised as a social partner in the tripartite structure including organised labour, organised employers and government (equivalent of Nedlac in South Africa).
The history of the organisation reflects that the Chief Executive Officer position has been occupied by males since establishment of the organisation. The current CEO is the first female to occupy the position.
Kenya has good laws but has challenges with implementation. The labour laws of the country were benchmarked from South Africa and the country was assisted by the International Labour Organisations in drafting the labour laws.
The focus of Kenya migration laws is outward looking, i.e. concerned about Kenyans working in other countries.
Kenya has bilateral agreements and Memorandums of understanding with other countries that need labour from Kenya.
The statistics on Kenyans working in other countries can be obtained from the department of Foreign Affairs.
The unemployment rate in Kenya in terms of the broad definition is 13.5%. Broad definition includes discouraged work seekers. However, according to the narrow definition, it was reported to be 4.9%. The narrow definition includes only those who are actively seeking employment. Of all the unemployed, 85% are reported to be below 35 years old.
The majority of foreign nationals in Kenya come from Rwanda, Somalia, Congo and Southern Sudan.

Meeting with the Central Organisation of Trade Unions (COTU), 1 April 2023

The meeting took place at the offices of the Central Organisation of Trade Unions (COTU), on 1 April 2023. The Parliament delegation was welcomed by the Deputy Secretary-General of COTU, Mr Benson Okwaro who was accompanied by three officials of COTU.

The leader of the delegation outlined the purpose of the delegation and gave a brief presentation on South African labour relations structure and employment laws. Among others, she mentioned that South Africa has three federations of trade unions, namely: Congress of South African Trade Unions (COSATU), Federation of Unions of South Africa (FEDUSA) and South African Federation of Trade Unions (SAFTU). Furthermore, she mentioned that parliamentary committees’ meetings are open to the public, including trade unions.

The Deputy Secretary-General presented as follows:

COTU has been in existence since 1965. The federation has 45 affiliates in the public and the private sector. Its existence has not always been without challenges. There has been political interference to weaken organised labour in Kenya. One of the affiliates by the name of Trade Union Congress broke away recently. The federation is working with government in a tripartite arrangement, which include government, business and organised labour. General Secretaries of some trade unions are Members of Parliament, where some serve in the labour committees.

The main Kenyan labour laws are:

Employment Act
Labour Relations Act
Labour Institutions Act
Work Injuries Benefit Act
Occupational Health and Safety Act

Most of the Kenyan labour laws were modelled on the South African labour laws system and were drafted with the assistance of the International Labour Organisations (ILO). The 2010 enactment of the Kenyan Constitution is also modelled on the South African Constitution. Migrants in Kenya come from surrounding East African neighbours such as Somalia, Ethiopia and Uganda. Most of them do not come as labour migrants but as refugees running away from political instability in their countries.

Majority of Kenyans want to leave the country to go and work abroad, mostly in Arab States. COTU introduced preparatory training for persons who want to go and work abroad. COTU received assistance from the ILO for conducting this training.

COTU officials provided the following information:

Article 41 of the Constitution of the Republic of Kenya makes provision for the Rights of Trade Unions. The Constitution was enacted in 2010. The Bill of Rights is contained in article 44 of the Constitution.
Labour laws were enacted in 2007.
The Republic of Kenya has the Employment and Labour Relations Court (ELRC), which used to fall under the Labour Department but is now under Judiciary.
83% - 84% of employment in Kenya is in the informal sector.
There are about 4.3 million Kenyan citizens who work abroad. In 2022, they contributed R60 billion in remittances.
The Labour Migration Management Bill has been tabled before Parliament. The Bill is both inward and outward looking. However, its main focus is on Kenyans working abroad. Kenya import labour mainly from Tanzania and Uganda. Uganda export domestic workers to Kenya.
The British Court judgement ruled that Uber drivers are employees, not independent contractors. COTU is now attempting to organise them under the Transport Workers Union.
There were about 911 employment agencies gazetted by the Ministry of Labour and Social Protection. The Ministry instructed all agencies to cease operations. However, they went to court to overturn the decision of the Ministry. As a result, all 911 employment agencies are still in operation.
The Labour Management Information System does not provide sufficient information to manage labour migration.
The National Industrial Training Authority is responsible for training and certification for recognition of Prior Learning. Persons with skills but without qualifications are taken to colleges for training.
The Micro and Small Enterprises Authority was established in 1912.
Most people who leave Kenya to work abroad are not members of trade unions.

Legislative Overview

The most important labour laws in the Republic of Kenya are the Employment Act of 2007 and the Labour Relations Act of 2007.Section 5(1) of the Employment Act states:

“It shall be the duty of the Minister, labour officers and the Industrial Court-

To promote equality of opportunity in employment in order to eliminate discrimination in employment; and
To promote and guarantee equality of opportunity for a person who, is a migrant worker or a member of the family of the migrant worker, lawfully within Kenya.

Section 5(2) states:

“An employer shall promote equal opportunity in employment and strive to eliminate discrimination in any employment policy and practice.”

Section 5(3) states:

“No employer shall discriminate directly or indirectly, against an employee or prospective employee or harass an employee or prospective employee-

On grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social religion, disability, pregnancy, mental status or HIV status.”

However according to the Employment Act, it is not discrimination to-

Take affirmative action measures consistent with the promotion of equality or the elimination of discrimination in the workplace;
Distinguish, exclude or prefer any person on the basis of an inherent requirement of a job;
Employ a citizen in accordance with the National employment policy; or
Restrict access to limited categories of employment where it is necessary in the interest of state security.

Part XI of the Employment Act deals with Foreign Contracts of Service. Section 83 states:

“A foreign contract of service shall be in the prescribed form, signed by the parties thereto, and shall be attested by a labour officer.”

The long title of the Labour Relations Act states:

“An Act of Parliament to consolidate the law relating to trade unions and trade disputes, to provide for the registration, regulation, management and democratisation of trade unions and employers organisation or federations, to promote sound labour relations through the protection and promotion of freedom of association, the encouragement of effective collective bargaining and promotion of orderly and expeditious dispute settlement, conducive to social justice and economic development and for connected purposes.”

Committee Observations

The Delegation made the following observations:

Labour Migration Policy in Kenya seems to focus on Kenyans employed in other countries rather than management of foreign nationals employed in Kenya.
The Republic of Kenya has bilateral agreements on labour with Qatar, Saudi Arabia and United Arab Emirates. In accordance with these agreements, these countries provide assistance with preparatory training of workers destined for their labour markets.
The Constitution and the labour laws of Kenya are modelled on the laws of South Africa. Therefore, the legal framework of Kenya is largely extracted from the South African Constitution.
The informal sector constitutes the larger percentage of the economy of the Republic of Kenya.
The Labour Management Information System of Kenya does not provide sufficient information to manage labour migration.
Youth unemployment is extremely high in Kenya, estimated at approximately 80%.
Kenya does not have quotas for foreign nationals to be employed in certain sectors of the economy. The principle is that locals must be employed except where there are no suitably qualified Kenyan citizens.
The Labour Migration Management Bill has been tabled before Parliament of Kenya.
Self-employment e.g. selling fruit or vegetables, is regarded as being employed in Kenya.

Committee Recommendations

In view of the above-mentioned observations, the Portfolio Committee on Employment and Labour recommends that Members of the Committee:

Take the lessons learned from the study tour into consideration when deliberating on the National Labour Migration Policy.

Report to be considered

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