An Act of Parliament to amend the National Employment Act to provide for the protection of Kenyan migrant workers.
| PROPOSED PROVISION FOR AMENDMENT | PROPOSED AMENDMENT | OUR COMMENTS |
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| Clause 37A Deployment of workers | The National Employment Authority (“the Authority”) shall, in as far as possible, facilitate the deployment, overseas, of Kenyan workers only to countries where the rights of Kenyan migrant workers are protected. For purposes of subsection (1) a country may be considered capable of protecting Kenyan migrant workers where that country: a. has existing labour and social laws protecting the rights of migrant workers; b. is a signatory to multilateral conventions, declarations or resolutions relating to the protection of migrant workers to which Kenya is a party; c. has concluded a bilateral agreement or arrangement with the Government of Kenya protecting the rights of overseas Kenyan workers; and d. is taking positive and concrete measures to protect the rights of migrant workers. | The addition of this section underscores the Authority's responsibility to ensure the safety and well-being of its citizens working abroad. By mandating that deployment be facilitated only to countries where Kenyan workers' rights are protected, it aims to prevent exploitation, abuse, and other forms of mistreatment that migrant workers often face. Strong legal protections help prevent the exploitation of Kenyan migrant workers, such as unfair wages, unsafe working conditions or other forms of abuse. This contributes to a more ethical and humane work environment. The section promotes safe and secure migration by ensuring that only countries with a proven track record of protecting migrant workers are approved for deployment. This is vital in reducing incidents of human trafficking, forced labour, and other violations of human rights. Additionally, Kenyan migrant workers can contribute significantly to the host country's economy through their labour. By ensuring their rights are protected, the host country is more likely to benefit from the skills and contributions of Kenyan migrant workers, leading to increased productivity and economic growth. Further, a commitment to protecting the rights of Kenyan migrant workers enhances the global reputation of the host country. It signals a commitment to human rights and fair labour practices, which can be important for diplomatic relations and international cooperation. The emphasis on host countries being signatories to international conventions or having bilateral agreements with Kenya reflects a commitment to aligning Kenya's labour migration policies with global norms. This alignment strengthens Kenya's position in advocating for the rights of its citizens on the international stage. Overall, this section is pivotal in safeguarding the rights and welfare of Kenyan migrant workers, ensuring that they are deployed only to countries where their rights will be respected and protected. |
Clause 37B Recruitment of overseas workers | A person shall not carry out the business of recruiting unless such person has applied for and obtained a permit in accordance with this Part. A person who intends to recruit a person to work overseas shall make an application to the Authority in the prescribed form. An application under subsection (1) shall be made in writing and shall include information on: a. the nature of business carried out by the applicant; b. the place of business; c. the countries to which the recruiter intends to facilitate the movement of Kenyan migrant workers to; and d. an indemnity cover for Kenyan overseas workers. Upon receipt of an application under subsection (1), the Authority shall: a. inform the relevant department in the Ministry of Labour; and b. request a report on any complaints received by the Ministry against the applicant with respect to an overseas Kenyan worker. The Authority shall consider the application together with the report received under subsection (3) and may: a. grant the application; b. grant conditional approval of the application; or c. reject the application. The Authority shall: a. keep and maintain a register of all recruiters granted a full or conditional license under this section; and b. publish in the Kenya Gazette and publicize a list of all recruiters granted a license under this section. | For sub-clause (1), we propose the inclusion of an offence if a recruiter recruits a Kenyan to work overseas without a permit issued by the Authority. This proposal acts as a deterrence in ensuring that a recruiter complies with the provisions of this clause. |
The addition of sub-clause (3) (d) is a good proposal. An indemnity cover acts as a financial safety net for Kenyan migrant workers. It provides compensation in case of unforeseen events such as accidents, injuries, illness, disability or death during their employment abroad. This protection helps alleviate the financial burden on the worker and their family. Secondly, indemnity covers often include provisions for medical expenses. This ensures that migrant workers have access to the necessary healthcare services without facing significant out-of-pocket expenses. |
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We propose the addition of timelines in sub-clause (5) of the Bill. This proposal ensures that the application form is reviewed by the Authority within a prescribed period without delays. |
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For sub-clause (5), we propose the deletion of the words “subsection (3)” and replacing it with the words “subsection (4) (b)”. The report is stated in sub-clause (4) (b). Sub-clause (3) provides the contents of the application form submitted by the recruiter to the Authority. |
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We propose that the second sub-clause (5) be changed to sub-clause (6). This proposal seeks to correct the arithmetic error present in this clause. |
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We propose that the permits issued to recruiters be renewed by the Authority after a prescribed period preferably annually. The renewal process allows the Authority to assess the performance and conduct of recruiters. It serves as a mechanism for quality control, ensuring that recruiters adhere to ethical and legal standards. |
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Clause 37C Reports | A recruiter shall submit a report in the prescribed form to the Authority specifying information on: a. persons employed through the recruiter; b. the status of employment; c. placement vacancies; d. separations from jobs; e. departures; and f. any other information required by the Authority. | We propose the addition of timelines for the recruiter to submit reports to the Authority. This proposal ensures that the Authority has current information on Kenyans working overseas. Secondly, in the event of emergencies, such as natural disasters or political unrest, having up-to-date information through regular reports allows for prompt response and assistance to Kenyan migrant workers in distress. This contributes to the overall safety and well-being of Kenyans working abroad. |
Clause 37D Travel advisories | The Authority shall, in consultation with the Cabinet Secretary responsible for matters relating to foreign affairs, issue travel advisories: a. on labour and employment conditions, migration realities and other relevant information relating to overseas workers; b. adherence of particular countries to international standards on human and workers' rights which will adequately prepare individuals into making informed and intelligent decisions about overseas employment. The Authority shall, every four months, publish the advisory under subsection (1) in at least two newspapers of nationwide circulation. | This is a good proposal. By issuing travel advisories on labour and employment conditions, the authority will be actively safeguarding the rights and welfare of individuals considering employment abroad. Many workers, particularly those from vulnerable communities, may not have access to comprehensive information about the realities of working in foreign countries. This advisory ensures they are better informed and can make decisions that prioritize their safety and rights. Travel advisories offer migrant workers valuable information about labour and employment conditions in destination countries. This knowledge empowers migrant workers to make informed decisions about accepting job offers abroad. Secondly, travel advisories can include warnings and information about common exploitative practices, such as illegal recruitment fees, deceptive employment offers and unsafe working conditions. This helps prevent migrant workers from falling victim to exploitation. The requirement for the authority to publish the advisory every four months in nationwide newspapers ensures transparency and accountability. Regular publication in widely accessible media ensures that the information reaches a broad audience, including those who might not have access to digital platforms. The consultation with the Cabinet Secretary responsible for foreign affairs highlights the importance of a coordinated approach to protecting overseas workers. This collaboration ensures that the advisories are informed by the latest diplomatic and geopolitical information, making them more relevant and accurate. |
Clause 37E Recruiters levy | A recruiter licensed under this part shall pay a prescribed fee to the Authority as a levy. The levy under subsection (1) shall be used for the emergency repatriation of an overseas worker or the remains of an overseas worker recruited by a recruiter licensed under this part. | The recruiter's levy creates a dedicated fund that can be used to provide emergency assistance, including repatriation, in situations such as natural disasters, political unrest, or health crises. This ensures that resources are readily available when needed. Secondly, in the unfortunate event of a migrant worker's death or emergency repatriation, the financial burden on the worker's family is reduced. The levy covers the costs associated with repatriation. This alleviates the potential financial strain families of the migrant workers may have during these difficult times. |
The clause is silent on the frequency in which the levy will be paid by recruiters to the Authority. We propose that this clause includes a prescribed period in which the levy will be paid. For example, monthly or annually. This proposal ensures there is a consistent and reliable source of funding for emergency repatriation of migrant workers. |
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Clause 37F Integrated information system | The Authority shall maintain an integrated information system (“the system”) on all overseas Kenyan workers. | The system allows for efficient monitoring and management of all overseas Kenyan workers. The Authority can easily track the number of workers, their destinations and the industries they are employed in, enabling better resource planning and decision-making. |
We propose that the system be updated by the Authority on a regular basis. Regular updates often include patches and fixes for known vulnerabilities, addressing potential security risks. Keeping the system up-to-date helps protect against security threats and unauthorized access. Secondly, software updates often come with performance enhancements, including optimizations that can make the system run faster and more efficiently leading to an improved user experience. |
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Proposed clause to be added Cancellation of a permit | We propose that the Authority be given the power to cancel a permit issued to a recruiter. Examples of grounds for cancellation of the permit are as follows: a. the information given by the recruiter is false or misleading; or b. the registration was fraudulently acquired. | This proposal allows the Authority to cancel the permit of a recruiter who fails to adhere to the provisions of this Bill. |