From: Kenya Human Rights Commission
International Federation for Human Rights (FIDH)
To: Committee on Economic Social and Cultural rights
Date: 30th October 2007
Re: Issues of concern regarding the realisation of Economic, Social and Cultural Rights in Kenya to be considered by the Committee during its Pre-Session
The Kenya Human Rights Commission (KHRC) and the International Federation for Human Rights (FIDH) welcome Kenya’s initial report to the Committee on Economic, Social and Cultural on the Kenyan State’s efforts to respect, protect and fulfil the rights enshrined in the International Covenant on Economic, Social and Cultural Rights (ICESCR). The submission of this report constitutes an important step in furthering democracy in Kenya.
This contribution is based on a fact finding mission that was undertaken by experts commissioned by the two organizations between 10th and 24th December 2006 to analyze the impacts of trade and investment and trade and investment agreements on the realisation of human rights in Kenya.
The fact finding mission report will be provided separately. As such, this document focuses on ICESCR article 6–8 as well as article 3. The articles include the right to work (article 6), the right to fair conditions of employment (article 7), the right to join and form trade unions (article 8), and equal rights for men and women (article 3).
This letter has two aspirations. First, the FIDH and Kenya Human Rights Commission would like to bring to your attention their concerns on the implementations of investment regimes and trade agreements to the detriment of the enjoyment of human rights. Secondly, the two organizations would like to propose questions to include in the official list of questions to be transmitted to the Government of Kenya, prior to the formal reporting session in May 2008.
When analyzing the impacts of trade and investment agreements on the enjoyment of human rights, developments in the area of the construction of human rights responsibility of third States (i.e. States impact on human rights situations beyond their borders) and companies’ impact (i.e. investors or buyers) are particularly relevant.
Economic globalization requires the recognition of multiple human rights duty holders. Decisions by inter-governmental organizations and negotiations by economic or violent non-State actors and by other States have far-reaching consequences for the degree to which human rights are enjoyed in a particular part of the world. None of these other actors are, however, yet as sufficiently accountable for the human rights impact of their actions, vis-à-vis people affected by their actions. But the vision is clear: a web of human rights obligations, with a territorially-responsible State located in the center and surrounded by new international actors.
Although this contribution focuses on Kenya’s obligations to respect, protect and fulfil the human rights of its citizens, we would like to highlight the need to ensure that corporations, investors and traders also implement policies that respect and promote the economic, social and cultural rights of workers and citizens in the country of operation. The same concern applies to the policies of other States which have an impact on the realisation of human rights in Kenya.
International Covenant on Economic, Social and Cultural Rights
Article 3: Equal rights of men and women
As has been noted in the Kenya CEDAW Report, the Kenyan constitutional and legal regimes still by and large discriminate against women. During our mission it became apparent that Export Processing Zones and the horticulture industry employees are mainly women. Other studies provide further evidence of female-dominated workforce. It is essential to investigate the blatant violations of female workers rights when assessing the responsibility of transnational corporations to respect ICESCR Article 3.
Although the Kenyan government report provides a detailed description on the right of male-female equity, the Government has failed to provide the explanation or analysis concerning the treatment of men and women in the workplace. The mission’s findings illustrate that women seem to be employed in a sector which provides characteristically more vulnerable and precarious employment.
Concerning the above issues, we would like the Government of Kenya to respond to the following questions:
Question 1: What steps are being taken by the Kenyan Government to protect the rights of women workers in EPZs, specifically in relation to employment terms?
Question 2: What steps has the Kenyan Government taken to ensure that employment practices at both the EPZ and at horticulture industries in Kenya do not confine women to low level and low paid jobs?
Question 3: What has the Kenyan Government done to eliminate employees’ overtime and excessive working hours, and to avoid preventing men and women from fulfilling their family obligations?
International Covenant on Economic, Social and Cultural Rights
Article 6: Right to work
One of the platforms on which the National Rainbow Coalition (NARC) government was voted was the promise of facilitating job creation. In fact, NARC administration promised to generate at least 500,000 jobs per year. The Kenyan Government report states that is also "pledged the promotion of an enabling environment for business and industrial development" (para. 47).
The mission noted that the level of unemployment remains high in Kenya. The jobs provided by the Export Processing Zones and horticultural sectors are associated with persistant labour rights violations (working hours, wages, freedom of association, discrimination). The State’s policy towards the informal sector, which is the biggest employer, was also noted to be restrictive at best and punitive in most occasions.
In this regard, we would like the Government of Kenya to respond to the following questions:
Question 1: How does the Kenyan Government propose to deal with labour rights violations in EPZs and the horticultural industry?
Question 2: What reforms does the government propose to ensure the industries provide a adequate working environment and legal protection for their workers in Kenya?
Question 3: Has the government considered reviewing the incentive schemes for the prospective investors in order to award and renew industry licenses based on the investors’ respect of human rights in their industries ?
Question 4: How has the Kenyan Government examined and evaluated new investors for providing additional jobs, as outlined in the Investment Promotion Act (2004)?
International Covenant on Economic, Social and Cultural Rights
Article 7: Right for everyone to the enjoyment of just and favorable conditions of work.
The mission observed six levels of constraining factors in relation to the rights in this article, these include: inadequate domestication of international conventions, specifically the fundamental principles and rights at the work place; low levels of minimum wages and dismal number of Collective Bargaining Agreements (CBA) in the EPZ and flower sectors; laxity in enforcement of labour laws; inadequate review of investors workers rights profile; non-definition or inclusion of obligations of the investors to the workers.
The mission also observed that the limitation of the workers’ right to strike continue to undermine workers freedom of organizing at the EPZs and flower sector.
In this regard, we would like the Government of Kenya to respond to the following questions:
Question 1: What steps has the government taken to ensure that it scrutinizes the potential investors to ensure that they have no history of human rights and workers’ rights violations ?
Question 2: How does the Government of Kenya propose to deal with the current non adherence to the labour legislation and laxity by the labour officials to enforce the law more so in EPZs and horticultural industry?
Question 3: How does the government balance its desire to attract investment, the pressure of investors and buyers for export to produce at the lowest price, and its obligations to ensure enforcement of labour rights?
Question 4: The Government report highlights in its para. 62 and 63 that occupational health and safety regulations do not currently apply to EPZs. What steps has the Government taken to put an end to this exemption ?
Question 5: Considering that there is no collective bargaining agreement in a single EPZ in Kenya today, how does the government intend to ensure that the EPZs workers rights to collective bargaining are respected?
Question 6: Has the government considered introducing appropriate policy and mechanisms to ensure that the computation of the basic (minimum wages) takes into consideration the cost of living and what is required for good welfare of the workers and their families?
Question 7: The Kenyan Government began a review process of the current labour legislation and passed new legislation by the 9th parliament in October 2007. Although the reform of certain labour rights provisions is mentioned in the Kenyan Government report, we would like to ask the government to highlight the limitations of the previous laws and to state the rationale for the new legislation.
Question 8: What steps has the Kenyan Government taken to ensure adequate domestication of the international conventions it has signed and ratified ?
International Covenant on Economic, Social and Cultural Rights
Article 8: Right of everyone to form trade unions and join the trade union of his choice, trade unions’ rights and the right to strike.
Kenya has about 36 independent trade unions and an umbrella body known as Centre of Trade Unions (COTU). The Kenyan Government recognizes in its report under the ICESCR that "in the past, there have been delays in the registration of trade unions" and that "in other instances, certain trade unions were denied registration and others deregistered" (para. 65).
The organizing of trade unions has many limitations and hurdles, the mission observed. To start with, the employers seem to have found a way of defeating the 51% requirement for unions to obtain membership. Besides, the unions seem unable to recruit categories of workers who are engaged on precarious terms (the majority casual and seasonal workers) as is the case in EPZs and flower industry. As such, the mission observed that the Tailors and Textile workers union is being frustrated out of EPZ.
Therefore, we would like the Government of Kenya to respond to the following questions:
Question 1: Has the Government taken steps to ensure that EPZ workers and workers in the flower industry realise their right to join unions?
Question 2: Is the Government aware of the register of Trade Unions’ obstacles to conduct effective elections and to elect good leadership within Trade Unions?
Question 3: When will the Government allow the registration of alternative workers umbrella bodies in Kenya?
Question 4: Para. 69 of the Kenyan Government report states that "the right to strike is not enshrined in the Constitution, although the Trade Unions Act provides for lawful strikes (...)"
How has the Government proposed to deal with the current prohibition of the right to strike in Kenya?
We hope that the Committee will carefully consider the above observations and recommendations and will incorporate them in to the questions for the Kenyan Government.
Please do not hesitate to contact us for any further inquiries.