(Handed as partial fulfillment of LL.B Degree group work for Public Interest Clinic II)
1.0 INTRODUCTION
1.0 INTRODUCTION
‘I
think the person who has taken a job in order to live (i.e. for the money) has
turned into a slave.’ Joseph Campbell
Slavery is a civil relationship in which one person
has absolute power over the life, fortunes, and liberty of another. The
Slavery Convention[1]
in 1926 defined slavery
as "...the status or condition of a person over whom any or all of the
powers attaching to the right of ownership are exercised…."
This
definition was broadened in 1930 by the ILO Convention No. 29 Concerning Forced or Compulsory Labour[2]
to include forced or compulsory labour. The 1930 Forced Labour Convention[3]
defines forced labour as "all work or service which is exacted from any
person under the menace of any penalty and for which the said person has not
offered himself voluntarily".
Slavery
is prohibited under the 1948 Universal Declaration of Human Rights, which
states: "No one shall be held in slavery or servitude: slavery and the
slave trade shall be prohibited in all their forms." Definitions of
modern-day slavery are mainly taken from the 1956 UN supplementary convention[4],
which says: "debt bondage, serfdom, forced marriage and the delivery of a
child for the exploitation of the child are all slavery-like practices and
require criminalization and abolishment". As contemporary systems of
slavery have evolved, new definitions, including trafficking and distinguishing
child slavery from child labour, have developed.
According to the International Labor Organization (ILO) there are eight main forms
of forced labor in the world today. ILO's definitions and the countries it
cites as examples of where the practices exist[5]
are as in the table below:
TYPE
|
DEFINITION
|
COUNTRIES
|
Slavery
|
A
"physical abduction" followed by forced labor.
|
Congo,
Liberia, Mauritania, Sierra Leone and Sudan
|
Farm
and rural debt bondage
|
Workers
see all their wages go to paying for transportation, food and shelter because
they've been "locked into debt" by unscrupulous job recruiters and
landowners - and they can't leave because of force, threats or the remote
location of the worksites.
|
Benin,
Bolivia, Brazil, Cote d'Ivoire, Dominican Republic, Guatemala, Haiti, Mexico,
Paraguay, Peru, Togo
|
Bonded
labor
|
Another
form of debt bondage, it often starts with the worker agreeing to provide
labor in exchange for a loan, but quickly develops into bondage as the
employer adds more and more "debt" to the bargain.
|
Bangladesh,
India, Nepal, Pakistan, Sri Lanka
|
People
trafficking
|
Individuals
are forced or tricked into going somewhere by someone who will profit from
selling them or forcing them to work against their will, most often in sexual
trades. Many countries are both "origins" and
"destinations" for victims.
|
Albania,
Belarus, Bosnia and Herzegovina, Brazil, China, Colombia, Cote d'Ivoire,
Czech Republic, Dominican Republic, Ecuador, France, Ghana, Haiti, Honduras,
Hungary, Israel, Italy, Republic of Korea, Laos, Latvia, Malaysia, Moldova,
Myanmar, the Netherlands, Nepal, Nigeria, Philippines, Poland, Romania,
Russia, Thailand, Ukraine, United Kingdom, USA, Vietnam, Yugoslavia
|
Abuse
of domestic workers
|
Maids
and other domestic servants are sold to their employers or bonded to them by
debts.
|
Benin,
Cote d'Ivoire, France, Haiti, the Middle East
|
Prison
labor
|
The
contracting out of prison labor or forcing of prisoners to work for
profit-making enterprises.
|
Australia,
Austria, China, Cote d'Ivoire, France, Germany, New Zealand, Madagascar,
Malaysia, USA
|
Compulsory
work
|
People
are required by law to work on public construction projects such as roads and
bridges.
|
Cambodia,
the Central African Republic, Kenya, Burma (also known as Myanmar), Sierra
Leone, Swaziland, Tanzania, Vietnam
|
Military
labor
|
Civilians
are forced to do work for government authorities or the military
|
Burma
(also known as Myanmar)
|
Slavery
exists today despite the fact that it is banned in most of the countries where
it is practiced. Women from Eastern Europe are bonded into prostitution,
children are trafficked between West African countries and men are forced to
work as slaves on Brazilian agricultural estates. Contemporary slavery takes
various forms and affects people of all ages, sex and race.
Some of the root causes of modern-day slavery
are:
- Poverty and desperation which maintain a pool of vulnerable victims.
- A culture that accepts treating women as objects that can be bought and sold.
- The ready market for cheap labor and cheap goods.
Slavery is inextricably linked to poverty. The relationship
of slavery to international debt is clear. Countries with large international
debt do not have resources to spend on the social institutions of justice,
education, and economic growth that tend to curb slavery. It is the crushing
poverty of the individual that often forces them into slavery.
According to Terry
Fitzpatrick[6]
the root causes of slavery are the things that need to be worked at. Slavery
cannot be ended simply by rescuing slaves because if the traffickers are not
convicted or facilities where people are enslaved shut down, more other people
will be enslaved to take their place.
The thinking that
slavery is a thing of the past has been put to test. In Europe, recent
decisions have been made by judicial and legislative bodies which have been
faced with incidences of extreme forms of exploitation in the employment
relationship which have led to the development of the concept of modern
slavery. These are common in domestic labour especially with migrant workers,
sex the sex industry and agricultural workers.
Below is a look at two
of the recent cases on modern slavery.
Siliadin v France[7]
Lady S was brought to
work and be educated in France but instead was used as a domestic worker. She
was never paid, had no days off and slept on the floor. When she managed to
escape, she was faced with the fact that French law did not criminalize this
behavior and was only awarded compensation in salary arrears, holiday leave and
notice period. She exhausted domestic remedies and went to the European Court
claiming that the lack by France of criminal legislation dealing with this
issue constituted a violation of Article 4 of the European Convention on Human
Rights. The court came to the conclusion that Lady S’s situation did not amount
to slavery which involves a right of legal ownership but classified it as
servitude, which was still within the scope of Article 4. The court also found
that Article 4 also imposes a positive obligation on states. It only requires
that states refrain from keeping individuals in exploitative labour conditions
but also imposes a duty to criminalize private conduct that is classified as
falling within Article 4. The lack of
such legislation was a violation of the European Convention on Human Rights by
France.
Rantsev v Cyprus and
Russia[8]
This is a more recent
case which gave a broad interpretation to Article 4 of the European Convention
on Human Rights by preferring to interpret it in light to the modern day
conditions. This case involved human traffic king for sexual exploitation. The
Court referred to the Slavery Convention and also to the International Criminal
Tribunal for the former Yugoslavia which had ruled before that the elements
that constitute slavery include control measures to prevent or avoid escape
such as force, threat of force or coercion, duration, assertion of exclusivity,
subjection to cruel treatment and abuse, control of sexuality and forced
labour. The court concluded that it was impossible to have a comprehensive list
of all elements of modern slavery. The court was not concerned to classify the
behavior in question as falling in one of the categories in Article 4 but found
that human trafficking by its very nature and its aim of exploitation is based
on powers attaching to ownership.
This second decision is
more liberal and more acceptable to prevailing conditions. Since the form of
slavery today is very different in its form from the historical times, courts
when interpreting laws formulated far back should give effect to their spirit
rather than their letter in order to deliver justice.
The
ILO discussed the Saladin case during the drafting of two legal
instruments; Convention No. 199 and Recommendation No. 201 on domestic workers.
These instruments provide a welcome response to the challenges posed by migrant
domestic workers by taking a human rights approach and incorporating detailed
labour standards to address the peculiarities if these disadvantaged groups.
2.0 MODERN SLAVERY: THE
SITUATION OF KENYANS SEEKING EMPLOYMENT IN MIDDLE EAST COUNTRIES
Modern slavery in Kenya takes a number
of forms and involves men, women and children. Kenya is a source, transit, and destination country for
men, women, and children trafficked for the purposes of forced labor and sexual
exploitation.[9] Kenyan adult men and women (and children in
some cases) are trafficked by cartels masquerading as employment agencies to
the Middle East, other East African nations, and Europe for domestic servitude,
exploitation in massage parlors and brothels, domestic workers, waitresses,
watchmen, drivers and forced manual labor, including in the construction
industry.[10]
As the quest for working abroad heightens for many skilled and semi-skilled
Kenyans, only a handful understand the implications of working in countries
where labour laws are ignored. Media reports of brutality toward foreign
labourers in Saudi Arabia have done little to deter determined Kenyans from
seeking ‘greener pastures’. Lack of employment opportunities, unattractive wage
and widespread poverty levels in Kenya are among the factors that have led to
high levels of migration abroad.[11]
Approximately 3000 female Kenyan domestic workers are currently working in
Saudi Arabia.[12]
The number could be higher since some do not register with the Kenyan Embassy
in Riyadh. Of these, 90 percent are from Mombasa, where a majority of residents
share the same Islamic beliefs as Saudis, a factor that woos many into
immigrating there. The country has many briefcase agencies hoodwinking Kenyans
with non-existent foreign jobs[13].
In May 2012, the Coast-based Muslims for Human Rights (MUHURI) estimated that
there were more than 30,000 Kenyans working as domestic workers in the Middle
East but termed it as human trafficking.[14]The
report indicated that many Kenyans had died in the Middle East in search of
better jobs.
The most notorious destinations
are Middle Eastern nations, mostly Saudi Arabia, the United Arab Emirates (UAE)
and Lebanon. Saudi Arabia has been in the spotlight for unlawful human
trafficking and has been named a Tier 3 country.[15] A
Tier 3 country’s government does not fully comply with the minimum standards
required by the Victims of Trafficking and Violence Protection Act of 2000 and
is not making significant efforts to do so. Kenyan agents often prefer to send workers to Saudi Arabia given the
high commissions they receive and its high demand for domestic workers.
According to a Sri Lankan official, labour agents typically pay village-level subagents
$329-423 (Ksh.26320-33840) commission for recruiting a domestic worker for
Saudi Arabia and $47-94 (Ksh.3760-7520) commission for other countries in the
Middle East.[16]
Human Rights Watch documented cases where recruitment agents deceived or forced
domestic workers to accept employment in Saudi Arabia so that they can make
more money.
The cartels lure Kenyans by placing
adverts of well-paying jobs in United Arab Emirates, Qatar or Kuwait in local
papers. Alternatively the racketeers use their local agents to convince jobless
youth to apply for jobs abroad without following the proper procedure. Most of
these agencies are not registered according to Kenyan laws. The Labour
Institutions Act provides that no person shall unless the person is registered
under the Act carry out business as an employment agency or charge or recover
any payment in connection with the procurement of employment through an
employment agency.[17]The
Ministry of Labour has advised people to inquire whether the agency recruiting
them to work out of the country is genuine. The Ministry said that there are
less than 90 agencies registered with them and they can easily be accessed
through their website. The dubious agents sometimes work in cahoots with Kenyan
embassy employees in Riyadh.[18]
In February 2012, the then Foreign Affairs minister Moses Wetangula, told
Parliament that some employees at the Saudi Arabia embassy were working with
unlicensed recruitment agents to traffic Kenyans into forced labour.[19] He termed the network criminal. The trouble
starts right from the recruiting stage. When a potential employer wishes to
hire, they contact agents in their home country where they are required to pay
up to $3,000. This money is meant to cover air fare and other preparatory
matters such as medical tests as well as agency fees in Kenya and in the host
country.[20]
But, as one of the victims said, she was required to cough up more money to
“get processed”. The then Foreign Affairs Permanent Secretary, Mwangi Thuita
said that the racket involved in taking domestic workers out of the country was
big and sometimes, potential employers spent up to Sh1 million to get people to
work for them. It was a major international racket, he added[21].
According to investigations, the racket involved diplomats from the affected
states and even airlines looking for business in addition to Kenyan agents and
those in the receiving states.[22]Their
travels are processed through the back door using different names without their
consent. The individuals behind these cartels are operating in clear
contravention of the laws of Kenya which outlaws the use or assistance of any
other person in recruiting, trafficking or using forced labour.[23]
Apart from most of the agents being
unlicensed, they subject their recruits to a lot of unfair practices that
violate their rights as human beings and in a contractual sense. These include deception about work conditions,
charging excessive fees that induce indebtedness, threats against or lack of
information about ending two-year contracts early some of which are written in
Arabic and not explained to the employees, and failure to assist domestic
workers when approached for help.[24]
These agents are the primary link between migrants and the government,
recruitment agents abroad, and their future employers. One of the most commonly
recorded complaints is that labour agents promised domestic workers a certain
wage, a day off per week, and other specific terms of work, yet when these
workers began working the conditions were significantly different.[25]
Sometimes employers reneged on contractual obligations, other times recruitment
agents made false promises. Deception by recruitment agents becomes clear when
their promises depart markedly from the standard salaries and working
conditions abroad. These are against employment laws in Kenya. The Employment
Act stipulates that where an employee is illiterate or cannot understand the
language in which the contract is written, or the provisions of the contract of
service, the employer shall have the contract explained to the employee in a
language that the employee understands.[26]
These contracts do not provide for basic terms like the form and duration of
the contract, the hours of work, the remuneration, scale or rate of
remuneration, the method of, calculating that remuneration and details of any
other benefits and the intervals at which remuneration is paid.[27]
Kenya law also provides for foreign contracts of service in a bid to protect
its citizens in foreign countries. A foreign contract of service is required to
be in the prescribed form, signed by the parties thereto and attested to by a
labour officer who shall ensure that both parties consented to the contract without
coercion, undue influence or fraud.[28]
The Act also outlaws the employment, aiding in such employment or inducement of
a person to proceed for employment outside Kenya through an informal contract
contrary to the provisions of this Act.[29]
These provisions have obviously been flouted. Even where such provisions are in
a contract they are blatantly disregarded on reaching their place of work.
Many domestic workers
are not furnished with complete information about their rights or their
contractual obligations. Labour agents often pressure them into believing they
are forbidden from leaving their employment earlier than the two years
specified (most of the contracts are for a period of two years), even if
experiencing abuse. In other situations, labour agents threatened them with
heavy financial penalties if they leave their contracts early, or fail to
fulfill commitments to pay for return tickets in cases where employers reject
workers within the first three months of employment. Recruitment agents often
failed to provide domestic workers with contact details of their Saudi
counterparts or to respond when contacted for assistance. In such cases, they
have no local contacts to assist them in case of problems, with the exception
of escaping to their embassy or consulate if they worked either in Riyadh or
Jeddah respectively. If they are stationed in smaller towns then they have no
such a choice.
On reaching their
destinations, the workers woes become worse. Saudi Arabia’s justice system does
not meet international standards and acts an impediment to migrant domestic
workers. Labour laws exclude domestic workers from key protections and immigration
policies place migrants at risk through a highly restrictive kafala (sponsorship) system that rely on
sponsor-based visas. A worker’s visa and legal status is tied to her employer.
This system creates a profound power imbalance between employers and workers
and imposes tight restrictions on migrant workers’ rights. Most migrant workers arrive in Saudi Arabia
on two-year contracts in which their visas are tied to their employer, or
“sponsor.” The sponsor bears responsibility for the worker’s recruitment fees,
completion of medical exams, and possession of an iqama or national identity card. The worker must obtain the
sponsor’s consent to transfer employment or to leave the country (get an “exit
visa”). This is contrary to the Universal Declaration of Human Rights (UDHR),
which provides for the right to freedom of movement and the right to return to
one’s country.[30]
In addition to treaty law this right to return to one’s own country has been
recognized as a norm of customary international law.
Due to these restrictive legislative
provisions Kenyans returning from Saudi Arabia have returned with horror
stories; from sexual abuse to a maid's body found stuffed into a fridge. Saudi
Arabia only grants entry visas to Kenyans travelling to their countries. That
means that if they want to leave and return home they will need an exit visa.
But there are more hurdles; a recruit’s passport is surrendered to authorities
at the airport of entry. In lieu of the passport, the recruit is issued with a
local identification document(s). For one to leave, the employer has to write a
letter to the recruiting agency that will in turn write to the government who
may then issue an exit visa and return the passport to the bearer. But given
the fact that both the Agency and the employ work in cahoots most if not all of
the times, this rarely happens are they are
the ones to initiate the process. In cases where there are no ready
employers or during the transition from one employer to another, the victims
are held in centers called maktabas[31]
as they await suitable employers. The holding and detention centers are
literally slave markets where recruits are traded as though they were
commodities.[32]
Once in employment, many of the
women have complained about physical and sexual harassment and being
overworked. Some are forced to change their religion and align their entire
lifestyle to comply with the most radical form of Islam. They may be required
to rise at 4 am and end their day at midnight. The case points to slave-like
working conditions. The workers go for long without pay or on meager earnings
as employers deduct the $3,000 (Sh240, 000) or more that they have to pay
upfront for air tickets and preliminary expenses.[33]
They are denied any contract that they can fall back on in case of a dispute.
This is usually very shocking to most employees to whom the terms and
conditions of employment are never revealed beforehand as should be the norm.
When Salma Noor, 28, like many other
Kenyans, left Kenya for Saudi Arabia in 2008, she thought she was entering a
safe haven. Her job-recruiting agent had promised her a lucrative job at a
duty-free shop based at Riyadh International Airport.[34]
“Upon
reaching in Saudi, I was received by a middle-aged couple who told me that I
would work in their house as a domestic worker,” Said Salma.
She said that her employers confiscated
her passport and took her mobile phone. She was made to work 18 hours a day,
usually with no food, save for the little she managed to grab while cooking.
“I
was not even allowed to sleep in the house. I slept in an uncomfortably tiny
room, which was for their dog before it died. The man of the house often raped
me and threatened to kill me if I ever told anyone. His wife beat me on a daily
basis, as if the act was part of my job,” continued Salma
The Kafala system ties employment visas to employers thus transforming
voluntary servitude to slavery and could not enable Salma to leave. A resident
permit is arranged by recruiting agencies that match the worker to the
household and charge both parties a recruitment fee. Workers become indebted to
the agencies and often spend months repaying them. This takes away their
financial freedom and makes them feel that they owe it to the employers to work
for them.
The workers are over worked but paid meager
salaries. A typical workday for domestic workers in Saudi Arabia is 15 hours.
At US $7-14 (Ksh 540-1080) per day, the average hourly wage amounts to less
than one dollar (about Ksh. 80) per hour. In extreme cases, an employee’s
salary is withheld for a long time with the assumption that the domestic worker
does not need the money since she has all provisions at her host house. Fatima
Hassan, 30, is a victim of such wage slavery. She was not paid for
one-and-a-half years and was lucky to have escaped and returned to Kenya.[35]The
Kenyan Embassy in Riyadh sheltered her for two weeks then paid her air fare
back home.
“Whenever
I asked for my payment, my boss insisted that she keeps for me until it gets
into a lump sum, but when I nagged for it, I was thoroughly beaten and
threatened with death,” said Hassan.
Like many others, Hassan was
confined in her employer’s house for two years under a cruel system that is
socially accepted and legally sanctioned in Saudi Arabia. She worked with
neither off-days nor rest.[36]In
2010 Saudi authorities deported a Ms. Fatima Athman, a domestic worker from
Mombasa for reporting injuries she had sustained when her employer pushed her
off a third floor balcony.[37]
She luckily survived because she fell into a swimming pool. When contacted, the
recruiting agency that had helped Athman secure her job denied the claims of
torture and justified the inhumane act by saying that most girls were being
punished for disobedience.
Suffering by Kenyans at the hands
of both employers and employment agencies has spurred heated debates among
human rights activists, the media, and civil societies. They blame the
government for keeping a blind eye.[38]
The main factor driving Kenyans, especially the youth from home literally into
slavery is the high rates of unemployment. The number of jobs being created
each year has failed to keep pace with the fast growing population. So, many
youths are drawn to wealthy cities in the Middle East, such as Dubai, which are
desperate for cheap labour to staff luxury hotels and homes. While some Kenyans
have found success abroad, others say they were treated like slaves.[39]
While the laws in both the Kenyan Employment Act and the Labour Institutions
Act are noble in their attempts to curb this form of modern slavery, the menace
has continued unabated. This situation has been exacerbated by
corruption among law enforcement authorities and other public officials, a fact
that has continued to hamper efforts to bring traffickers to justice.[40]
In certain regions, corrupt police, immigration, or labour officials were
complicit, received bribes to overlook or provide lighter penalties for, or
obstructed investigations of human trafficking.[41] The systems of pre-departure labour recruitment,
the levels of regular and irregular migration and the luck of cooperation from
the Saudi authorities have not helped the situation either.
Despite the existence of
the various pieces of legislation and various efforts from the government the
problem has persisted. In the past employment bureaus have
been warned of impending action but most of them continued with business as
usual; luring more and more Kenyans and helping them secure travel documents to
fly out of the country. After
hearing too many stories of abuse, the government last year banned Kenyans from
travelling abroad to work as domestic servants albeit temporarily, though they
can still go for hotel work or other more formal jobs.[42]
‘The Ministry of Foreign Affairs wishes
to inform that the government has temporarily suspended the recruitment and
export of domestic workers (housekeepers and maids) to the Middle East with
immediate effect.’[43]
Mrs. Nyambura Kamau,
an official at the Ministry of Foreign Affairs advised that Kenyans in Saudi
Arabia should stay in touch with the Kenyan Embassy in Riyadh or the British
High Commission in case of any employment related challenges.[44]
The Ministry said that it would from then on vet all agents that act as
middlemen in recruiting housekeepers and maids.
Until the new rules were ready, Kenyan citizens were barred from seeking
work in the Middle East as domestic workers.[45]
The new policies include more thorough oversight of the recruiters. The Foreign
Affairs Ministry estimated that at least 100,000 Kenyans were working in the
Middle East, and recruitment was showing no sign of slowing down.[46]
Kenya’s decision follows a somewhat similar step that Indonesia, another
important source of domestic workers to the Middle East, took in the year 2011.
The Indonesian government is reportedly seeking to completely end the process
of sending workers to Saudi Arabia.[47]
May be if all the efforts by the Kenyan Government comes to naught, it might
have to follow in the steps of the Indonesian authorities.
3.0 REGULATORY FRAMEWORK
IN KENYA
The
Labour Institutions Act and the Employment Act contain certain provisions which
seek to protect Kenyans who seek employment in Middle East countries from
exploitation as shown below.
3.1 LABOUR INSTITUTIONS
ACT[48]
Often,
recruitment agencies are involved in selecting Kenyans as employees in Middle
East countries. In June 2012, the then Political and Diplomatic Secretary in
the Foreign Affairs Ministry Patrick Wamoto issued a statement that required
all recruitment agencies to be vetted since most were operating illegally due
to the rampant corruption which involved collusion with the Immigration
Department. The Ministry of Foreign Affairs informed the general public that it
had temporarily suspended recruitment and export of domestic workers
(Housekeepers/maids) to Middle East Countries with immediate effect. He further
said recruiting agencies will be compelled to sign labour agreements to ensure
Kenyans taking up jobs are not mistreated or they are not short-changed for the
contracts agreed upon.
However,
under the Labour Institutions Act, certain provisions safeguard Kenyans who
seek employment abroad against exploitation from recruitment agencies who seek
to make a quick buck due to naivety and illiteracy.
Section 55
empowers the director to keep a register of all employment agencies and also
ensure that no person shall charge or recover any payment in connection with
the procurement of employment through an employment agency.
Thus
the recruiting agencies should not be allowed to charge exorbitant fees
claiming that it caters for air transport and passports.
All
employment agencies are required to make a formal application for registration
as per section 56 and once they meet the requirements they shall be
granted a certificate of registration specifying the name of the applicants,
the premises they are going to operate and period for which the certificate
shall be in force.
The
persons operating the employment agencies shall have the following duties[49]
(a)
Retain any record which, by regulations made under this Act, he is required to
keep for a period of three years subsequent to the occurrence of the event
recorded;
(b)
On demand by an employment officer made at any reasonable time during the
period of three years specified, produce the said record for inspection;
(c)
Furnish to the Director such statistical information at such times and in such
manner as may be prescribed.
The
employment officers have the following powers[50];-
(1)
he may, without notice and at any reasonable time during the day, enter upon
any premises of an employment agency for the purpose of conducting any search
therein where there are reasonable grounds for believing that such entry or
search is necessary for the prevention, investigation or detection of an
offence in terms of this Part.
(2)
An employment officer may—
(a)
require a person conducting an employment agency to produce any books or
documents which relate to his business and which are or have been in his
premises or in his possession or custody, or under his control;
(b)
at any place require any person who has the possession, custody or control of
any books or documents relating to the business of any person who is or was
conducting an employment agency, to produce the books or documents;
(c)
examine and make extracts from, and copies of, any books or documents referred
to in paragraph (a) or (b);
(d)
require an explanation of any entry in any books or documents referred to in
paragraph (a) or (b); or
(e)
seize any book or document referred to in paragraph (a) or (b) that in his
opinion, may afford evidence of the commission of an offence under this Act.
(3)
An employment officer shall in the exercise of powers conferred by the subsection
(2), exercise such reasonable care as to ensure that the smooth and efficient
running of an employment agency is not unduly interfered with.
(4)
Every employer whose premises are used as an employment agency, and every
person employed by him, shall at all reasonable times during the day, furnish
such reasonable facilities as may be required by an employment officer for
entering the premises for the purpose of inspecting or examining the books and
documents kept on the premises, or for making any inquiry in relation thereto.
(5)
No person shall—
(a)
make a false statement—
(i)
in any representation to an employment officer; or
(ii)
when giving evidence to or before an employment officer investigating a case
under this section which that person knows to be false in any material
particular; or
(b)
refuse to answer any question which an employment officer, in the exercise of
his functions under this section, asks him;
(c)
refuse to comply, to the best of his ability, with any requirement made by an
employment officer in the exercise of his functions under this section; or
(d)
hinder an employment officer in the exercise of his functions under this
section.
It is an offence not to comply with the provisions
provided[51].
The
Minister may make regulations necessary to provide for[52]-
(a)
the form in which an application is to be made for a certificate of registration;
(b)
the fee to be paid for a certificate of registration or copies thereof;
(c)
the fees which may be charged in respect of the business of an employment
agency;
(d)
the surrender of certificates of registration where the conditions thereof are
to be varied or where such certificates are to be cancelled;
(e)
the records to be kept in respect of an employment agency;
(f)
the qualification of the proprietor or persons running the employment agency;
and
(h)
the nature and form of security to be given by the proprietor of the employment
agency for any recruitment of employees.
3.2 THE EMPLOYMENT ACT[53]
The
Kenyan Employment Act explicitly provides for foreign contracts of service whereby
it should be in the prescribed form, signed by the parties thereto and attested
by a labour officer[54].
The
requirements for attestation include the following[55];-
(a)
that the consent of the employee to the contract has been obtained;
(b)
of the absence of any fraud, coercion or undue influence, and any mistake of
fact, or misrepresentation which might have induced the employee to enter into
the contract;
(c)
that the contract is in the prescribed form;
(d)
that the terms and conditions of employment contained in the contract comply
with the provisions of this Act and have been understood by the employee;
(e)
that the employee is medically fit for the performance of his duties under the
contract; and
(f)
that the employee is not bound to serve under any other contract of service
during the period provided in the foreign contract.
The
Act provides for security in foreign contract of service in the following terms
that[56];-
(1)
When the employer who enters into a foreign contract of service does not reside
or carry on business within Kenya, the employer shall, or where the employer
resides in Kenya, the labour officer may require the employer to give security
by bond in the prescribed form, with one or more sureties resident in Kenya and
approved of by the labour officer for the due performance of the contract in
such sums as the labour officer considers reasonable.
(2)
Where the employer has an authorised agent resident in Kenya, the Minister may
require that the security bond specified in subsection (1) be given by the
agent and the agent shall personally be bound by the terms of the bond notwithstanding
the disclosure of his principal.
It
is an offence to induce a person to proceed abroad under an informal contract
and that a person who[57];-
(a)
employs, engages, or knowingly aids in the employment or engagement of, a
person with the intention that when so employed or engaged that person shall
proceed outside the limits of Kenya; or
(b)
induces or attempts to induce an employee to proceed outside the limits of
Kenya, unless he has under this Act, duly entered into a foreign contract of
service with that person or employee, as the case may be, commits an offence
and shall on conviction be liable to a fine not exceeding two hundred thousand
shillings or to imprisonment for a term not exceeding six months or to both.
However,
under section 86 which provides for
savings of contracts of service made abroad, a person seeking employment should
be alert on the following issues that;-
(1)
Nothing in this Act shall prevent an employer or employee from enforcing their
respective rights and remedies for any breach or non-performance of a lawful
contract of service made outside Kenya, but the respective rights of the parties
under that contract as well against each other as against third parties invading
those rights may be enforced in the same manner as other contracts.
(2)
Where a contract has been executed in conformity with this Part, it shall be
enforced in the same manner as a contract entered into under this Act, but no written
contract, tenor and execution of which are not in conformity with this Act shall
be enforced as attains an employee who is unable to read and understand the
contract and any such contract shall be deemed to be executed in conformity with
this Act if it is signed by the names or marks of the contracting parties and bears,
as concerns any illiterate parties, an attestation to the like effect as if prescribed
by this Act.
(3)
Where a contract is made in a foreign country, the contract shall be attested
by a judge or magistrate, and shall be authenticated by the official seal of
the court to which the judge or magistrate is attached.
4.0 INTERNATIONAL AND REGIONAL INSTRUMENTS FOR PROTECTION AGAINST SLAVERY
International legal instruments take the form of a treaty
(also called agreement, convention, or protocol) that binds the contracting
states to the negotiated terms. When negotiations are completed, the text of
a treaty is established as authentic and definitive and is "signed"
by the representatives of states. A state can agree to be bound to a treaty
in various ways. The most common are ratification or accession.
A new treaty is ratified by those states that have negotiated the instrument.
A state that has not participated in the negotiations may, at a later stage,
accede to the treaty. The treaty enters into force, or becomes valid,
when a pre-determined number of states have ratified or acceded to the
treaty.
When a state ratifies or accedes to a treaty, that state
may make reservations to one or more articles of the treaty, unless
reservations are prohibited by the treaty. Reservations may normally be
withdrawn at any time. In some countries, international treaties take
precedence over national law; in others a specific law may be required to
give a ratified international treaty the force of a national law. Practically
all states that have ratified or acceded to an international treaty must
issue decrees, change existing laws, or introduce new legislation in order
for the treaty to be fully effective on the national territory.
The following international instruments determine
standards for the abolition of and protection against slavery, forced labour
and slavery-like practices;-
(i)Slavery
Convention
(1926)[58]
The first international treaty, adopted by the League of Nations (predecessor of the United Nations) that defines slavery and slave trade and commits governments to abolishing slavery.
(ii)ILO Convention
(No. 29) concerning Forced or Compulsory Labour (1930)[59]
This convention broadened the 1926 Slavery Convention's definition of slavery to include forced or compulsory labor.
(iii)
Universal
Declaration of Human Rights
(1948) (article 4)
The Universal Declaration of Human Rights (UDHR) was adopted by the General Assembly of the United Nations on 10 December 1948. The UDHR is not a binding treaty yet provides that the normative basis for international human rights standards. Article 4 states that "No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms". Broadened the 1926 Slavery Convention to include slavery-like practices and forced labour.
(v)African Charter
on Human and Peoples' Rights
(1981) (article 5)[60]
Article 5 of the main African human rights treaty
stipulates that "all forms of exploitation and degradation of man
particularly slavery, slave trade, torture, cruel, inhuman or degrading
punishment and treatment shall be prohibited."
(vi)European Convention on the Protection of Human Rights and
Fundamental Freedoms (1950) (article 4)[61]
Europe's main human rights treaty prohibits slavery and
forced labor yet also clearly defines what should not be considered forced or
compulsory labor: work required to be done in the ordinary course of
detention; any service of a military character as part of compulsory military
service; any service exacted in case of an emergency or calamity threatening
the life or well-being of the community; any work or service which forms part
of normal civic obligations.
(vii) American Convention on Human Rights(1969)[62]
Article 6 (freedom from slavery) of the American
Convention on Human Rights, which entered into force in 1978, states that
"No one shall be subject to slavery or to involuntary servitude, which
are prohibited in all their forms, as are the slave trade and traffic in
women." Like the European Convention on Human Rights it also lists
situations which are not to be considered forced labor or slavery (work in
situations of detention, military service, emergencies or which is part of civic
duties)..
|
5.0 RECOMMENDATIONS AND
CONCLUSION
(1)SIGNING OF A MEMORANDUM OF UNDERSTANDING (MOU)
BETWEEN KENYA AND MIDDLE EAST COUNTRIES
The
MoU should include welfare measures necessary to protect migrant workers from Kenya.
This will protect Kenyan employees from abuse and torture.
A
case to point is the MoU signed between Sri Lanka and Saudi Arabia to protect
their Sri Lankan migrant workers and introduction of a quota system on the
recruitment of their country people as housemaids to the Middle East per year.
The MoU between the two countries came just months after Sri Lankan housemaid
Rizana Nafeek was executed by Saudi Arabia for being convicted of killing an
infant in her care in 2005 while she was 17 years of age. The execution had
taken place despite repeated appeals by the Sri Lankan government including
President Mahinda Rajapaksa for a pardon for Nafeek from Saudi Arabia's King Abdullah.
Days after the execution, Sri Lanka's ambassador to Saudi Arabia was recalled
by the Sri Lankan government and in a tit for tat action Saudi Arabia too
recalled its envoy from the island nation.
Thus
to avoid such scenario in Kenya, MoU should be signed so that Kenyans are not
mistreated once they are employed in Middle East countries. The MoU should have
the following key provisions;-
·
the
right to a minimum wage;
·
the
right not to have to work more than 48 hours a week (on average);
·
the
right to health and safety;
(2)COMPELLING RECRUITMENT
AGENCIES TO ABIDE BY THE LAW
Agencies should operate within the law and should
ensure that foreign contracts are written in a language that one understands or
are interpreted to the person seeking employment. The Labour Institutions Act
provides for rules to which employment agencies have to abide to. The
Employment Act provides for foreign contracts in service and the safeguards as
discussed earlier.
Heavy penalties should be handed to agencies which
are found to contravene the law.
CONCLUSION
As
already mentioned earlier modern day slavery takes various forms .It has moved
from the traditional approach of a person who has no freedom of movement later
on expression to the area of employment.A man depends on his work to live. In
these modern times it is almost impossible to survive without a source of
income. If you take away a man’s work or source of income you take away his
dignity.
It
has been argued that even for persons who are employed there is a high
likelihood that they are also ‘slaves’ as perhaps they have poor working
conditions as well as meager earnings but the reason they put up with the
employment is due to the fact that they have no alternative means of
employment. The endless cases that characterize Kenyans who end up in foreign
countries in search of ‘greener pastures’ only to be severely mistreated also
goes a long way to show that there is need for proper legal safeguards against
this occurrence backed by powerful enforcement measures. Labour agreements
should be signed between Kenya and Middle East countries.
[1]Article 1.1
[2] Article 2.1
[3] ILO
Convention 29
[4] Supplementary Convention on the Abolition of
Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery Geneva, 7 September 1956
[5]
http://www.hrea.org/index.php?doc_id=430
[6] communications director of Free
the Slaves
[7] Servitude
and Forced Labour in the 21st Century: The Human Rights of Domestic
Workers 2006, Industrial Law Journal at
page 395
[8] 2010
[9] US State
Department Trafficking in Persons Report, June 2009, p. 1
[10] Ibid p. 2
[11] The 2010
International Organization for Migration report, Harnessing the Development
Potential of Kenyans Living in the United Kingdom,
[12]Joyce Wangu,
In Pursuit of Greener Pastures at www.thewip.net?/contributors/2007/2011
[13]Beatrice
Kituyi, Permanent Secretary, Ministry of labour, Strict Rules in Kenya to stop
Bogus Job Offers Abroad, By Mwakilishi, Friday 08/12/2011 at www.mwakilishi.com
[14] MUHURI
Report on Kenyans Employed in the Middle East.
[15] US
Department of State, Trafficking in Persons Report, 2011
[16] Supra note
7 at p 50
[17] Act No. 12
of 2007 at s.55
[18] Sunday
Nation, 25th March 2012
[19] Ibid
[20]Nation
Syndication, The Ordeal of Kenyans in Arab States, August 19 2012 at www.syndication.nation.co.ke
[21] Ibid
[22] Ibid
[23] S. 4
Employment Act Cap 226 Laws of Kenya
[24] ‘As if am
not human’, Human Rights Watch Report p 47, July 2008
[25] Supra note
15
[26] Supra note
6 at s. 9(4)
[27] Ibid s.
10(2)
[28] Supra note
15 at s. 83
[29] Ibid s 86
[30] Art 13
[31] Swahili
word for library
[32] Sunday
Nation, August 19th 2012 at www.dailynation.co.ke
[33] Supra note
8
[34]Joyce j Wangu /www.thewip.net/contributors/2011/07/pursuit_of_greener_pastures_in.html
[35] Ibid
[36] Ibid
[37] Human
Rights Watch Report 2010
[38] Supra note
26
[39] Gabe Josel, The people. Wednesday, 24 April, 2013
[40] 22 June 2012 /www.bbc.co.uk/news/world-africa
[41] Ibid
[42] Daily
Nation 22 June 2012
[43] Patrick
Wamoto, Political and Diplomatic Secretary, Ministry of Foreign Affairs, Daily
Nation, 22 June 2012
[44] Supra note
36
[45] Ibid
[46] Ibid
[47]
www.bbc.co.uk
[48] Number 12 of 2007
[49] Section 57 Ibid
[50]
Section 58 ibid
[51] Section 59 ibid
[52] Section 60 ibid
[53] Cap 226, Laws of Kenya.
[54] Section 83 ibid
[55] Section 84 ibid
[56] Section 85 ibid
[57] Section 86 ibid
[58] http// www.hrea.org/learn/guides/UN html
[59]
http//www.hrea.org/erc/library/display php
[60]
http//www.Africa union.org
[61]
http//www.hrea/learn/guides/Europe html
[62]
http//www.oas.org
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