Schoolchildren are on holiday and at home for a month or so beginning this week.
With Kenya’s economy having been rough and tough, the best option for parents is to have those children working or doing some menial jobs.
However, a lawyer wants the government to make sure that adult jobs are done by a person who is above 18 years.
He wants minors allowed to learn and play.
This is how.
For starters, we delve into law first.
The Employment Act, which came into effect in 2007, MPs saw it fit to leave it open for persons below 18 years to be either forced to work or employed.
At Section 56, MPs allowed employment of children between 13 and 16 years on the condition that they will have ‘light work’ or duties.
They went ahead to dictate that the work should not prejudice their school attendance and vocational training.
“The minister may make rules prescribing light work in which a child of between thirteen years of age and sixteen years of age may be employed and the terms and conditions of that employment,” the Act reads in part.
Verbal terms
Then there is Section 57 of the same law. MPs here decided that a minor between 13 and 16 years could be employed but given verbal terms.
They made it illegal for a parent or guardian or an employer to give the minors a written contract.
If caught, MPs dictated that you be ordered to pay Sh100,000 or cool your heels behind bars for six months and in the extreme, pay the fine and serve jail.
Again, they decided that one could employ a child for industrial undertaking but that cannot be between 6.30pm and 6.30am.
But the minister is allowed to give conditions that a minor can work at night.
But Section 56 does not define what light work is and does not say what happens to those between five to 12 years and 17-year olds.
In Section 57, they again lumped up all minors by the term child and allowed anyone seeking service of a child to orally dictate what is to be done.
Lawyer Clifford Onyango is not happy about this arrangement in the law.
“Children are currently being used as domestic workers owing to poverty in their families, especially where all members of such families have to work in order to make ends meet. More often, such minor labourers are not given contracts of employment in homes, businesses, mineral extracting enterprises,” observes Onyango.
Parties sued
He has now sued the Attorney General, the Speaker National Assembly, the Kenya Law Reform Commission, the Federation of Kenya Employers, the Kenya National Council for Children Services, and the Ministry of Labour and Social Protection Cabinet Secretary.
Central to his case is that first of all, the law paves the way for exploitation of minors by both parents and employers.
He further argues that there is no clarity on what light duties are and the law leaves it open for 17-year teenagers and those between five years and 12 to be subjected to child labour without recourse.
According to him, Kenya has many unemployed youth who could otherwise get something to do and earn a living.
“Each successive census conducted in Kenya reveals that there is great number of university graduates who are unemployed. There is no shortage of skilled labour each year. There is thus no justification for employing children as promoted under Part VII of the Employment Act,” he states.
He also pokes holes on allowing children to work without a written contract. Onyango is of the view that this limits the minors’ right to, for example, join or form unions and advocate better working conditions as adults do.
Worst still, he says the law gives parents and employers a blank cheque to change terms of employment and sometimes even give poor pay as compared to the work done.
On the working hours, he says the Act is contradictory as on one hand it dictates that one cannot block a minor from going to school by giving them work.
On the other hand, it allows the minister to formulate conditions that a minor can work at night.
Onyango asserts that a child who had worked overnight cannot attend school.
The lawyer is armed with data to prove his case. He states that according to the Kenya National Bureau of Standards (KNBS), in Kenya at least 8.5 per cent of children or simply 1.3 million minors are engaged in child labour.
At the same time, he says KNBS and the International Labour Organisation (ILO) in 2011 sampled three regions – Kilifi, Kitui and Busia – and got shocking data.
In his case, Onyango states that the research revealed that in Busia, 45.8 percent of the minors worked as farmhands or related labourers.
In Kitui, the survey established that majority of child labourers were of the age of 10 to 14. In addition, 55.2 percent were involved in child labour.
In Kilifi, the survey revealed that the total population of child labourers is 43,607.
According to Onyango, MPs have to date not enacted law to protect a Kenyan child from exploitative and or hazardous labour.
He is of the view that even with good working conditions, there is nothing meaningful a minor can gain other than battering their bodies and making their lives miserable.
Onyango points out that there is a clear contradiction between Kenya’s labour law, the Children Act, the International Labour Organisation Convention, on what is the minimum age for employment. The lawyer argues that the Children Act defines a minor as anyone below 18 years.
This was adopted from the Convention of Rights of Children 1989 and prohibits minors from being subjected to labour and exploitation.
However, ILO minimum convention that was ratified in 1973 allows the employment of children who are 15 to 17 years.
The lawyer wants ILO convention be relooked as it clashes with the Constitution and Children Act on minors’ rights.
Section 18 (1) of the Children Act, 2022 dictates that a child cannot be subjected to labour, domestic servitude, economic exploitation or any work or employment which is hazardous, or interferes with their education, or is likely to harm their health, moral or social development.
He states that the CS in charge of Labour and Children have never formulated any regulations to give effect to the Constitution and children's law.
“The Employment Act is robbing children of their childhood. A child should be used for learning not earning. If this honourable court agrees that to be true, the petitioner humbly prays that the orders sought herein are granted so that we allow children to earn knowledge so that they can be able to earn a better in future,” he argues.
He wants 11 sections of the Employment Act declared unconstitutional. At the same time, he is after Section 18 of the Children Act and the ILO minimum age convention.
