New Study on Law and Child Labour in Kenya

By Philip Wairire,  AFCiC Kenya. For the full report  follow the following link Rapid assessment of working Children in Thika final report

ILO considers that “child labour” is “work that deprives children of their childhood, their potential and their dignity, and that is harmful to physical and mental development”. In similar terms, the UN Convention provides that child labour is any form of work that violates the four basic rights of children, namely survival, development, participation and protection.

Any work that threatens these rights is considered child labour and ought not be tolerated.

Action for Children in Conflict (AfCIC) has been conducting a study on the effectiveness of Kenyan law in curbing child labour in Kenya since 2007 using data collected around Thika Municipality.  The study is entitled “making the law work for children: A Case Study of Child Labour in Kenya. The main aim of the study is to examine the gap between the present legislative environment and the reality. This study will be useful to children organizations and also policy makers.

The preliminary work of this study was presented at the counter trafficking symposium for the faith based and grassroots organizations organized by Consolation East Africa in Nairobi on November 23rd 2011.

The AfCIC study has highlighted the challenges pertaining the interpretation of what constitutes child labour both locally and internationally.  That there is no universally acceptable definition on this area. However what is usually considered in the discourses of child labour are dimensions such as hazard, work effects and degree of involvement. The work involved therefore should not be harmful to the physical, emotional and mental development;  or one that denies children of their basic rights, the enjoyment of their childhood, potential and dignity.

The study sheds light on the international and local legal instruments available to protect children against labour exploitation. The international instruments are:

  • ILO Convention 138 on the minimum age for starting work (1973). This convention was ratified by Kenya in 1979.

ILO 138 defines “child labour” as: any work performed by a child under the age of twelve; any work other than “light” work undertaken by children aged twelve to fourteen; and “hazardous” work by children aged fifteen to seventeen.

  • The UN Convention on the Rights of the Child (1990) which was ratified by the Kenyan government in 1990.

The UN Convention defines a “child” as “below the age of eighteen years”. It stipulates in Article 32 that the child is to be protected from “economic exploitation” and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development.

  • ILO convention 182 on the worst forms of child labour ratified in 2001 and lastly

ILO 182 calls on states to take immediate and effective measures to prohibit and eliminate the “worst forms” of child labour. These are specified to include:  (a) all forms of slavery and slavery-like practices, such as child trafficking, forced labour and forced recruitment into armed conflict; (b) using a child for prostitution or pornography; (c) use of children in illicit activities, for example, drugs; and (d) “hazardous” work.

  • ILO convention 184 on safety and health in Agriculture.

It specifies, at Article 16, that “the minimum age for assignment to work in agriculture which by nature or the circumstances in which it is carried out is likely to harm the safety and health of young persons shall not be less than 18 years”.

Kenya has also developed various  local instruments instruments to domesticate the international  conventions. Hence children are protected by:

  • The 2010 Constitution of the Republic of Kenya

Section 53 protects children from exploitative labour and promotes the best interest of the child.

  • Children Act of 2001

Section 10 protects children from economic exploitation that interferes with their education and sets the minimum year for labour as 16.

  • Employment Act of 2007

Part VII of the Employment Act makes  provisions on the on “Protection of the Child” (sections 52 to 65). However, it bears note that there are major contradictions as between this Act and the Children’s Act as to the age at which children should be employed. For one, while the Employment Act [sec 56 (2)] allows for children of between the age of 13 and 16 to be engaged in light work, the Children’s Act holds that only children above the age of 16 should be employed. The Act allows anyone to lodge a complaint if s/he witnesses the worst forms of child labour.

Some of the most important findings of the study are:

1. Kenya does not have up to date statistics on the extent of child labour in the country. The statistics available are those of 2002 by the ILO’s International Programme on the Elimination of Child Labour (“IPEC”) and the govenment survey of 2005/6. It is important that data is created so as it may be possible to understand the scale and scope of the problem in order to encourage effective interventions.

2. The domestic legistaltion has gone to a great extents to safeguard the welfare of the children. However acording to the reality, child labour is still very rampant in Kenya. Hence bringing about the need to bridge the law and the reality.

3. Both international documents and local documents have no single accepted definition of child labour. In Kenya while the Children Act of 2001 sets the minimum age at 16, the Employment Act sets it at 13. Hence bringing about the need for the Kenyan courts to harmonize the two instruments.

4. The introduction of universal free primary education in Kenya was an important intervention against child labour. However indirect costs such as providing food to retain the children in the schools have a bearing on the success of this intervention. This calls for a multi stakeholder involvement to meet this indirect costs to make this intervention a success.

5. Policy reforms to tackle inequality and poverty such as the community development fund (CDF), local authority transfer fund (LATF) and the street family rehabilitation trust fund (SFRTF) are also positive measures introduced that will definitely help in suppressing child labour. It is important that these resources target those who need them and that the data of their impact be made available.

6. The government formed a multisectoral committee at districts and provincial levels to oversee the extents of child labour. However the study found that no such committee exists in Thika. Hence the call for a need to start such a committee.

Lastly the AfCIC study recommends a new definition to harmonize the Kenyan instruments on the definition of child labour as follow: Child labour constitutes work undertaken by children under 13 alternatively any work that is not considered light that is undertaken by children between the ages of 13 and 16. The  study however leaves the readers to make their own definition of light work by giving an example of domestic work and harmful by giving an example of mining. Also it suggests that all work given to a child should done so in due consideration of the child’s age.

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3 Comments (+add yours?)

  1. winnie rubi
    Oct 31, 2013 @ 11:46:03

    u guys are not reli clear on ua statitics n we as students reli nid facts

    Like

    Reply

  2. jimmie
    May 20, 2014 @ 21:25:01

    Good work

    Like

    Reply

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