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Cablegate: Update of Worst Forms of Child Labor Information for Tda

VZCZCXYZ0003
PP RUEHWEB

DE RUEHNR #4613/01 3331330
ZNR UUUUU ZZH
P 291330Z NOV 07
FM AMEMBASSY NAIROBI
TO RUEHC/SECSTATE WASHDC PRIORITY 3691
RUEHC/DEPT OF LABOR WASHDC
INFO RUEHGV/USMISSION GENEVA 4271

UNCLAS NAIROBI 004613

SIPDIS

DEPT FOR DRL/IL TU DANG
DEPT PASS TO DEPT OF LABOR FOR DOL/ILAB TINA MCCARTER

SIPDIS

E.O. 12958: N/A
TAGS: ELAB EIND ETRD PHUM SOCI KE
SUBJECT: UPDATE OF WORST FORMS OF CHILD LABOR INFORMATION FOR TDA

REF: STATE 149662

1. As requested in reftel, below is Embassy Nairobi's submission of
information on Kenya's implementation of its international
commitments to eliminate the worst forms of child labor, as required
under the Trade and Development Act (TDA), for the Department of
Labors preparation of the 2007 TDA report.

Incidence and Nature of Child Labor

According to UNICEF, 28% of boys and 27% of girls ages 5 to 14 were
working in Kenya in 2005. More should be known about the incidence
of child labor once the National Statistical Bureau releases the
employment sector information collected in its 2005-06 National
Household Survey.

Children work in the informal sector and with their families, in
businesses as well as in agriculture. Children work in commercial
and subsistence agriculture, and work with their families on tea,
coffee, rice, and sugar plantations. Children work in herding and
in fisheries. Children also work in domestic service, construction,
transport, quarries, and mines, including informal gold mines.
Street children work in the informal sector. Children are reported
to engage in prostitution in bars, discos, brothels, massage
parlors, and on the streets. While the majority of children
exploited in prostitution are between 13 and 17, children as young
as 9 are reported to be involved. Many girls who hawk or beg during
the day reportedly engage in prostitution at night. In the
agricultural sector, girls are sometimes forced to provide sexual
services in order to obtain plantation work. Sudanese and Somali
refugee children are also alleged to be involved in prostitution in
Kenya. The growth of the tourism industry has been accompanied by an
increase in child prostitution. Slavery and debt bondage are not
problems in Kenya. Children working in domestic servitude in
private households are often victims of trafficking or forced labor.
Children escaping abusive domestic employment conditions in urban
areas often become street children who must work, beg or steal to
survive.

In 2006, UNICEF released a study on sex tourism and the commercial
sexual exploitation of children along Kenya's coast. The report
found that in the coastal towns of Malindi, Mombasa, Kilifi, and
Diani, up to 15,000 girls, or up to 30% of all children 12 to 18
years, living in these areas engage in "casual" prostitution. It
found that up to 3,000 additional boys and girls were engaged in
prostitution on a full-time, year-round basis, and that 45% of girls
involved in prostitution and sex tourism were between 12 and 13 when
they first engaged in transactional sex.

Poverty, the death of one or both parents, and self-interest may
contribute to a family's decision to place a child with better-off
relatives, friends, or acquaintances, who may end up trafficking
and/or exploiting the child. Child trafficking in Kenya occurs
mainly through personal and familial networks. In 2007, a case in
which two children from rural Kenya were trafficked to Tanzania to
work on a farm but were subsequently rescued highlighted the flow of
child trafficking between Kenya, Uganda and Tanzania.

The HIV/Aids pandemic has rendered many children orphans. The
pandemic creates orphans and exacerbates poverty, playing a
substantial and increasing role in trafficking in persons in Kenya.
In 2007, Human Rights Watch (HRW) said the Government of Kenya (GOK)
was neglecting the over one million children orphaned by HIV/Aids.
In a report entitled "In the Shadow of Death: HIV/Aids and
Children's Rights in Kenya" HRW says the children are at a higher
risk of human rights abuse, are forced to become breadwinners,
pulled out of school and often forced to take on potentially
dangerous labor that is inappropriate for them.

Child Labor Laws and Enforcement

Kenya has ratified ILO Convention 182. The Kenyan Constitution
prohibits slavery, bonded and forced labor, and servitude, including
by children. The Children's Act of 2001 prohibits all forms of
exploitative and hazardous child labor and child sexual
exploitation. The law (which law?) also prohibits children under 18
years from being recruited into the military and holds the
government responsible for protecting, rehabilitating, and
reintegrating into society children involved in armed conflict. On
July 14, 2006, President Mwai Kibaki signed into law the Sexual
Offenses Act, which specifically criminalizes child trafficking,
trafficking for sexual exploitation, child prostitution, child
pornography and sex tourism, rape and defilement. For child
trafficking, the minimum penalty is 10 years of imprisonment plus a
fine, and for trafficking for sexual exploitation, the minimum
penalty is 15 years of imprisonment, a fine, or both. If a girl
under 14 years is raped, the perpetrator is considered to have
committed the lesser offense of "defilement" under Kenyan law. The
new law also provides harsher penalties for defilement than it does
for rape.

Additionally, in October 2007, the Kenyan Parliament passed and
President Kibaki signed five labor reform laws that include
important provisions on child labor.

One of them, the Employment Act of 2007 regulates minimum conditions
for all employees, including children, in all aspects of employment.
The Act defines a child as one aged 18 years and below, finally
harmonizing the labor law with the Children's Act. The Act defines
Worst Forms of Child Labor as "Work such as slavery, child
prostitution, illicit activities or work likely to injure health of
a juvenile - where juvenile relates to ages between 16 - 18 for
young persons." The Minister for Labor and Human Resource
Development is to define those specific activities that constitute
worst forms of child labor to be prohibited completely. Labor and
Police Officers are empowered to investigate child labor complaints.
A Labor Officer is authorized to cancel an agreement of service
between an employer and a child in any labor (except for on-the-job
training as per the Industrial Training Act). Children shall not
work between 6:30 in evening and 6:30 in the morning (night work).

Under the new Employment Act, children between 13 and 16 years can
only be engaged in light work (as prescribed by the Minister) that
is not harmful to their health or development or schooling needs
unless it is part of vocational training. Nobody should enter into
a written agreement with a child between 13 and 16 years of age, and
no parent or guardian should allow such an agreement to be entered
into with a child. Children of this age bracket shall not attend to
machinery, or where underground works take place and access is by
means of an inlet shaft or hole.

Since many children lack birth certificates, and a person must be at
least 18 to receive a national ID card, it can be difficult to
determine whether a worker is a legal child. The Act states that a
Court may determine a dispute as to the true age of the child
employed. Where it is not possible to get evidence of true age, the
Labor Officer may use his opinion to determine the "true" age of
that employee/child.

Any employer found employing a child in any activity not allowed by
the Act shall be guilty of an offence and liable to a fine up to
200,000 shillings (about $ 3,077), or up to (12) months
imprisonment, or both. If death or injury occurs to a child
employed against the provisions of the Act, that employer shall be
liable to a fine up to 500,000 shillings (about $ 7,700) which shall
be applied wholly or in part for benefit of the injured child or
his/her immediate relatives, or up to (12) months imprisonment, or
both.

The Minister may, after consultation with the National Labor Board,
make rules providing for any of the purposes for the administration
of the Act including:

- Prescribe anything which under this act is to be or may be
prescribed.
- Prescribing the conditions of the employment of women, young
persons or children in any specified trade or occupation.
- Prescribing the age at which a child may be employed.
- Requiring employers of children to furnish information and return
to any specified officer in respect of such children or their
employment or the conditions of their employment.

Any rules made under this section of the Employment Act may
distinguish between juveniles of different ages and sexes and, in
relation to women or juveniles, between different localities,
occupations and circumstances.

Another new law, the Labor Institutions Act 2007, states that a
Labor Officer may institute, appear or appeal on behalf of employees
in any civil proceedings against his employer and may take into
custody and return any child to his parents or guardian, whom he
reasonably suspects to being employed in contravention of the
Employment Act.

The Ministry of Labor and Human Resource Development is responsible
for enforcing child labor laws, but, according to the U.S.
Department of State, the Ministry's enforcement of the laws against
child labor continues to be nominal.

The police anti-trafficking unit and the Criminal Investigation
Department (CID) are responsible for combating trafficking, but,
according to the U.S. Department of State, are not yet effective.
The Kenya National Police are participating in a UN Organization for
Drugs and Crime (UNODC)/INTERPOL anti-trafficking project through
the Council of Eastern Africa Police Chiefs aimed at strengthening
regional cooperation to prevent and combat trafficking in persons.
The goals of the project are to develop a regional strategy,
harmonize national anti-trafficking legislation with the Palermo
Convention and the Additional Trafficking Protocol, establish or
strengthen anti-trafficking offices and units, and develop
anti-trafficking training material for law enforcement and
prosecutorial officials. The project is in its early stage, and the
level and effectiveness of Kenyan police participation is still to
be determined.

Current Government Policies and Programs to Eliminate the Worst
Forms of Child Labor

The Government of Kenya's National Development Plan for 2002-2008
recognizes child labor as a problem and calls for an evaluation of
the impact of child labor on the individual and the country, as well
as its implications on the quality of the future labor force. In
February 2006, the government renewed the three-year mandate for the
National Steering Committee on the Elimination of Child Labor. An
Inter-Ministerial Coordination Committee on Child Labor chaired by
the Vice President is responsible for setting general policy. The
Ministry of Labor and Human Resource Development led an interagency
review of the National Child Labor Strategy in 2006 and sent the
policy to the Cabinet in mid-2007. Although the Cabinet did not
approve the policy before being dissolved for the December 2007
general election, the next Cabinet should take it up. Although the
free primary education, cash transfer program, and Ministry of Youth
Affairs national strategy are not specifically targeted at child
labor, their roles are noted in the National Child Labor Strategy,
and government officials cite them and anti-poverty programs as
Kenya's most effective efforts against child labor.

The GOK has mandated the Vice President's office, through the
Ministry of Home Affairs, to spearhead the national anti-trafficking
initiative, strongly supported by the International Organization for
Migration (IOM). The National Steering Committee to Combat Human
Trafficking is chaired by the Ministry of Home Affairs (MOHA)
Permanent Secretary, or the Director of Children's Services. The
Steering Committee held several meetings in 2007 attended by key GOK
ministries and other stakeholders, and appointed a subcommittee to
draft a National Plan of Action (NPA) to combat trafficking. IOM
provided training for the subcommittee, which presented an outline
to the Committee in October, 2007. Agencies are providing comments,
and the sub-committee will present a more detailed plan in January
2008.

Led by the Ministry of Labor and Human Resources Development, with
the support of IOM, several ministries continued to implement a
trafficking education, awareness, and inspection program for the
country's 68 foreign employment agencies.

The GOK continues to participate in a four-year, $5 million Project
of Support to the Kenya Timebound Program on the Elimination of
Child Labor funded by the U.S. Department of Labor (USDOL) and
implemented by ILO-IPEC. The project aims to withdraw 15,000
children and prevent 7,000 children from exploitive labor in
domestic service, commercial sexual exploitation, commercial and
subsistence agriculture, fishing, herding, and informal-sector
street work. The GOK collaborated with ILO-IPEC on the $5.3 million,
regional project, "Building the Foundations for Eliminating the
Worst Forms of Child Labor in Anglophone Africa," funded by USDOL.
The government also collaborated with ILO-IPEC on the implementation
of two other child labor and education projects, including a $1.53
million regional project to provide skills training to urban youth,
funded by Canada, and a $449,408 project to combat child domestic
work in Tanzania and Kenya, funded by Sweden.

The GOK also collaborates on the four-year, $14.5 million "Kenya,
Uganda, Rwanda, and Ethiopia Together" (KURET) Project funded by
USDOL and implemented by World Vision, in partnership with the
International Rescue Committee and the Academy for Educational
Development. The KURET Project aims to withdraw or prevent a total
of 30,600 children from exploitive labor in HIV/AIDS-affected areas
of these four countries through the provision of educational
services. In the year ending August 31, 2007, KURET withdrew 2,117
and prevented 93 children from exploitive child labor in Kenya and
provided education/training opportunities for them. KURET has
withdrawn and rescued 6,495 children in Kenya 2004-2007. (Source:
World Vision Technical Progress Report to USDOL, September 2007)

Kenya also participates in the five-year USDOL-funded "Reducing
Child Labor through Education" (CIRCLE 1 and 2) global projects
implemented by Winrock International through 2008; these projects
work with community-based organizations to prevent or reduce
exploitive child labor through the provision of education.

In April 2007, the GOK declared that primary education was
mandatory. Parents have been prosecuted for not sending their
children to school, but enforcement of this decision is rare. In
September 2007, the Ministry of Home Affairs and the Communications
Commission of Kenya (CCK) agreed to establish an emergency 116 toll
free hotline together with an NGO to enable children and adults to
E
report cases of abuse, trafficking and child labor, and to speak
with trained personnel for counseling and referral to a national
network of service providers for assistance. Technical difficulties
postponed the launch of the service from November to December 2007.

In 2004, with support from UNICEF, the Ministry of Home Affairs
Children's Department started a cash grant program to support poor
households who take care of orphans and vulnerable children (OVC) in
Kenya. By 2005, the program was scaled up to cover locations in 14
districts in the country. The objective is to provide a social
protection system, but the program is expected to reduce child labor
and trafficking. The GOK set the value of the transfer at Ksh
1,000-1,500 per household per month (about $15-24). In financial
year 2006-2007, the government allocated Ksh 56.6 million (about
$870,770) to the program. From 500 households two years ago, there
are now 12,500 households enrolled in almost 40 districts. The
target is 100,000 by 2012.

In 2006, the ECPAT Code of Conduct was signed by 30 hotels on the
coast of Kenya, which is the destination of many foreign tourists
visiting the country. The Ministry of Tourism and Wildlife, and the
Kenya Association of Hoteliers and Caterers have expressed their

desire for all hoteliers and other hospitality and tourism firms to
sign and implement the ECPAT Code of Conduct. The Children's
Department collaborated with NGOs to hold three workshops for local
government officials and tourism sector stakeholders in Coastal
Districts in 2007 to follow up on the UNICEF study and encourage
implementation of the code of conduct.

Also in 2006, the government launched a national campaign to end
violence against children, including child labor, trafficking, and
sexual abuse. The initiative is being spearheaded by the Children's
Department, in collaboration with representatives of UNICEF, NGOs,
religious groups, and the private sector, and aims to raise $1.4
million to protect children. The government has provided shelter and
medical services to street children who were involved in commercial
sexual exploitation, and it established District Advisory Children's
Centers throughout the country to provide counseling, educational
services, medical care, and fostering to orphans and vulnerable
children who are at risk of becoming victims of trafficking.

UNICEF Kenya obtained pledges from the three leading presidential
candidates to invest in quality education, child survival and social
protection for vulnerable children, should one of them win the
December 27, 2007 election.

The Ministry of Youth Affairs (MYA) announced in October 2007 a
national strategy for youth development stressing improved
education, training and employment facilities and opportunities that
it developed with assistance from UNIDO and UNDP. The strategy
proposes to invest about Ksh 110 billion (about $1.7 billion) over
the next five years with about Ksh50 billion (about $770 million)
coming from the government, and the rest from donors. According to
the MYA, 90% of unemployed youth had no technical skills.

The government's free primary education program (FPE), begun in
2003, raised the number of children enrolled to more than 7.6
million. However, Education minister George Saitoti said in October
2007 that nearly a million children are still out of class,
particularly in arid/pastoral areas and in slums, the majority of
classrooms in the country's 18,000 primary schools are overcrowded,
and most schools continue to experience shortages of teachers. In
FY2006-07, the GOK allocated Ksh 108.3 billion (about $1.77 billion)
to education in the national budget, and raised that by 11% in FY
2007-08 to Ksh 119.5 billion (about $1.84 billion). The GOK is also
considering introducing mobile schools to help increase the number
of children in school, particularly in arid/pastoral areas. The GOK
believes that FPE is among its most important tools for fighting
child labor and poverty. The government announced it would end
tuition charges at the secondary level in 2008, and would work
towards reducing or eliminating other costs of primary and secondary
education that lead to child labor, rather than school attendance.

RANNEBERGER

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