Access to justice has become an important theme in international debates related to fundamental rights. The International Labour Organization (ILO) has placed this subject at the heart of its policy on protection of migrant workers, in particular during two recent tripartite meetings. Historically human rights organisations and governments have concentrated on the most egregious kinds of human rights abuses such as torture, deaths squads, and detention without trial. This lack of attention to workers’ rights has contributed to workers being seen as expendable in worldwide economic development and their needs and concerns not being adequately represented. Domestic work is one of the world’s oldest occupations. It involves cooking, cleaning, or care for children, the elderly or the disabled, tasks that have been traditionally assigned to women in the vast majority of societies and that have been largely uncompensated. However, domestic work may also include gardening, chauffeuring or providing security services, tasks more often per-formed by men. Despite the important contributions by domestic workers, discrimination, gaps in legal protections, and the hidden nature of their work place them at risk of a wide range of abuses and labour exploitation.
In Kenya and around the globe, domestic workers endure excessive hours of work with no rest, underpayment or non-payment of wages, forced confinement, physical and sexual abuse, forced labour, and trafficking.
The International Labour Organization (ILO) estimates that children make up nearly 30 percent of the world’s estimated 50 million to 100 million domestic workers. Women are most vulnerable. In Kenya alone, domestic workers are well over 2 Million. That notwithstanding however, it’s important to note that domestic work is not only an important livelihood for workers, but also enables employers to better their standard of living by maintaining employment outside the home. Hence, domestic workers are very important people to any economy. Consequently they should be well taken care of.
In developing and developed countries alike, the domestic work sector work absorbs significant numbers of workers, many of whom belong to the poorest segments of society with little access to other work or employment, generally as a result of limited educational opportunities. There is a general stigma that surrounds domestic workers making it very difficult for them to work. In Kenya the stigma surrounding domestic work manifests itself in the mistreatment of domestic workers by their employers. This mistreatment comes in many forms including emotional, physical and sexual abuse and is played out with differing levels of severity all across the country. Without question, however, employer mistreatment of their domestic workers is alarmingly common. An estimated 70 percent of employers, for example, are underpaying and overworking their staff.
What is domestic work?
The Domestic Workers Convention for which Kenya is yet to ratify defines domestic work as work performed in or for a household or households and a Domestic worker as any person engaged in domestic work within an employment relationship or a person who performs domestic work only occasionally or sporadically and not on an occupational basis is not a domestic worker. Statistics show that there are more than one million domestic workers in Kenya. The Kenyan government and other groups studying the issue estimate that almost 2 million households in Nairobi alone employ nannies, cooks, maids and gardeners. Unfortunately, The Kenya Union of Domestic Hotels, Educational Institutions, Hospitals and Allied Workers (KUDHEIHA) is the only available union for domestic workers to join. It has been organizing women workers since 1948, long before independence and they have around 40,000 members in different fields such as chefs, nurses and out of this total; nearly 5,000 are female domestic workers.
WHAT RIGHTS DO DOMESTIC WORKERS HAVE?
Legally, employed domestic workers have the same rights and protections as any other worker under Kenyan law. The Employment Act 2007 defines an employee as a person employed for wages or a salary and includes an apprentice and indentured learner. The General Wages Order 2009 under legal notice 69 and 70 lists domestic workers as a house servant or cook, cleaners, sweepers, gardeners, and children’s baby-sitter. This order also provides for the minimum allowable wage for domestic workers. As of May 1st 2015, the minimum wage of Kenya stands at Kshs. 10,954.70 for domestic workers in Nairobi
The domestic workers therefore have the following, among many other employee rights;
- Right to work
- Right to fair treatment
- Right to wages/salary
- Right to leave
CHALLENGES THAT KENYAN WORKERS FACE IN THEIR DAY TO DAY WORK
Kenya’s domestic workers face a myriad of challenges in their day to day lives most of which go unreported. Kituo cha Sheria is continually giving these workers a platform to share out on their challenges and to seek legal redress where possible. Through their legal aid programmes, Kituo has been able to assist so many domestic workers. Some of the reported challenges that are frequently reported include:-
Mistreatment by employers
Domestic workers, regardless of age, are still referred to as “house girls” and “house boys,” and are often subjected to abuse and exploitation by their employers. This mistreatment comes in many forms including emotional, financial, physical and sexual abuse and varies in severity across the country. Employer mistreatment of their domestic workers is alarmingly common now days. In some households, domestic workers are not given food by their employers, they work from the wee hours of the morning till late at night, they are underpaid and risk having their pay docked or denied over the tiniest mistake. Many of them are put in danger by the employers, for example locking them in the house when the employer leaves puts them at risk of being unable to escape if there is a fire. In the case of illness, they are denied time off to go visit the doctors and in most cases cannot even afford the healthcare itself.
Because 4 out of 5 domestic workers is female, they are likely to face sexual assault and abuse from the male members of the employers family. There are several cases of husbands, and sometimes sons, sexually harassing and assaulting domestic workers. Most likely the domestic worker has little access to alternative sources of livelihood because of poor education and a lack of other vocational skills, therefore will remain in employment situations in which they are being abused just to ensure their survival. Women already have a difficult time even speaking up against sexual harassment and other gender based violence because of the consequences that come from it, but because of the low regard that society views domestic workers, they are likely to face even more stigma, ridicule and victim shaming when they speak up against their employers. They may not even have access to social media, thus have less access to avenues that they can use to expose their employers or even seek comfort for their trauma. This scenario has been experienced by various domestic workers and was told by one of them during a seminar on HIV – AIDS thus “He would force me to have sex with him; every time he would sleep with me without a condom and this went on for two years,” she told IRIN/PlusNews. “He threw me out when I told him I was pregnant; I realised later that I had not only left that house with a pregnancy but also HIV.”
Lack of goodwill by law enforcers
Kenya has legislation to protect the rights of domestic workers but it is rarely enforced. In addition, a few of the women know about the existence of the Kenya Union of Domestic, Hotel, Educational Institutions, Hospitals, and Allied Workers (KUDHEIHA), which was set up to protect their rights.
Lack of a strong domestic workers union
Building strong domestic workers unions is key in ensuring that domestic workers rights are realised. Domestic workers on the other hand are afraid of joining unions in case they lose their employment if their employers find out. It can be difficult to build independent trade unions which will specifically address the issues of domestic workers
Low levels of education
Educating domestic workers who do not understand about Convention 189, the Employment Act, the Domestic Workers Convention, 2011 and their rights generally as worker is also very important. This is one thing that should be taken up by all the relevant stakeholders including the government and the civil society. Kituo Cha Sheria a Legal NGO has an initiative dubbed ‘Dhobi Women’ where they undertake a lot of advocacy work in educating domestic workers of their rights and even providing pro bono legal services in cases where domestic workers have a legal tussle with their employers.
Recruitment agencies make big money out of domestic workers:
There are so many recruitment agencies that train and facilitate the employment of domestic workers especially nannies. Ultimately they end up extorting the domestic workers of their hard earned many in the guise of have secured them jobs. This largely affects domestic workers in Kenya and of late, those recruited for employment in the Arab countries. It is very absurd and indeed dehumanizing to the domestic workers for them to take home the equivalent of 30% of their pay because the remainder was taken by the recruiting bureaus/agencies.
THE LEGAL FRAMEWORK THAT GUIDES AND PROTECTS DOMESTIC WORK AND WORKERS IN KENYA
Kenya has a set of six Labour Laws that regulate relationships in the workplace in addition to the Constitution and they are;
The Employment Act
The law defines the fundamental rights of employees, provides basic conditions of employment, and regulates the employment of children.
The Labour Relations Act
It consolidates the law relating to trade unions and trade disputes, provides for the registration, regulation, management and democratization of trade unions and employers’ organisations or federations, and seeks to promote sound labour relations through the protection and promotion of freedom of association, the encouragement of effective collective bargaining and promotion of orderly and expeditious dispute settlement, conducive to social justice and economic development.
The Labour Institutions Act
Provides for the establishment of labour institutions, outlines their functions, powers and duties and other related matters.
The Work Injury Benefits Act
Provides for compensation to employees for work related injuries and diseases contracted in the course of their employment.
The Industrial Court Act No. 20 of 2011 – now Labour Relations Court
The Act establishes a revamped Labour Relations Court that is the same status of the High Court as espoused in the Constitution of Kenya. The Labour Relations Court is established as a court of superior record. The Court is given powers to adjudicate over cases of employment and labour relations. It describes the qualifications, remuneration and security of tenure of the judges of the Industrial Court. It further establishes an Employment and Labour Relations Rules Committee for purposes of making rules for the Court in consultation with the Chief Justice.
The Occupational Safety and Health Act (2007)
Provides for the safety, health and welfare of workers and all persons lawfully present at workplaces.
Kenya was one of the countries that supported the adoption of Convention 189, which is largely consistent with the provisions that already exist in the Kenyan Constitution and the minimum terms and conditions of employment contained in the country’s Labour Laws.
Given that the provisions of ILO Convention 189 are consistent with the provisions of the Kenyan Constitution and the Labour Laws, the key task is to enhance awareness of the basic minimum provisions of the law, creating knowledge of the social protection mechanisms, and educating domestic workers about safety and health at work
ROLE OF THE DIFFERENT INSTITUTIONS INCLUDING THE GOVERNMENT, JUDICIARY AND THE CIVIL SOCIETY
Currently, the only organization within Kenya campaigning exclusively for the rights of house helps is the Centre for Domestic Training and Development in Nairobi (CDTD). The Centre’s approach to the issue is to empower women in their current situation and teach them marketable skills for domestic labour so that they may have a bargaining chip to negotiate for high salaries and fair working terms and conditions. Kituo Cha Sheria equally has a programme for Dhobi women. It organises trainings for them which includes training them on their labour related rights and human rights.
Although the CDTD has to date, trained and found decently compensated employment for over 800 women in the last five years, the real change will have to come from within society and from within the government in the form of protective legislation and advocacy on behalf of the rights of domestic workers. Through the Judiciary, Domestic workers in Kenya won a key battle for better employment terms after the High Court affirmed the validity of verbal contracts and imposed heavy penalties on an employer for breach of the same.
The judgment, which was delivered on December 19th, 2012 – but got buried in the rubble of electoral politics – effectively left every household with a domestic worker liable to prosecution for breach of the Employment Act with or without a written contract. Justice Monica Wanjiru Mbaru in her judgement awarded Robai Musinzi, a house help, a total of Sh. 175, 533 for wrongful dismissal by her employer, Safdar Mohamed Khan, despite the fact that there was no written agreement to support the claim. The jurisprudence set in this case is very progressive and has ensured that employers treat the domestic workers with dignity as provided for the Constitution
COMPARATIVE JURISPRUDENCE – ORGANISING DOMESTIC WORKERS IN PERU: A SUCCESS STORY
For domestic workers to effectively realise access to justice, they not only need to be pro active but they too need to be organised. With a collective voice, realising their rights becomes easy. On the other hand there is supposed to be good will from the government in so far as addressing issues affecting the domestic workers is concerned. As noted earlier in this paper, domestic workers constitute a considerable segment of the Kenyan workforce and they indirectly too have an impact on the output by other workers who depend on them to run their homes when they are out there.
The Household Work Law in Peru and which was passed in 2003 took many years of struggle, a lot of demonstrations, travelling around the country to win visibility for this work and gain support. At the time, many women who demanded their rights were dismissed by their employers. The domestic workers there worked as a network of household workers’ organisations in ten regions.
They visited night schools where household workers might be and also a lot of public awareness was done and articles published. Lobbing was done through the Ministry for Women and the Ministry for Social Affairs for support but unfortunately there was no budget for this, resources such as places to hold conferences was provided. This indicated goodwill from the government and motivated the domestic workers. Eventually they got the new law. It lays down those household workers have the right to a contract with their employer; this does not have to be written but can be verbal.
The contract must include:
- Wage levels; provision of food and sleeping quarters are not considered as part of the wage;
- Proof of payment or work done so that the household worker later has proof of
- Maximum working hours of 8 hours per day;
- Weekly free day of 24 hours on Sunday plus public holidays; additional pay if longer hours are worked;
- 15 days leave per year on at least half-pay
- Bonus for Christmas and Independence Day on 28 July.
There are many things that we as a country could borrow from Peru in terms of legally recognising domestic workers in addition to doing awareness forums and lobbing for the respect of the domestic workers and the work that they do.
For the Kenyan domestic worker to adequately access justice therefore there is need for an understanding and appreciation by the employers that just like any other employee, they deserve to be treated with dignity, that any law that governs workers equally protects the domestic workers as well. The union does not have a collective bargaining agreement to cover this category of workers. Therefore, the union relies on the Employment Act 2007 and the General Wages Order 2009 to ensure that at least domestic workers enjoy the minimum terms of employment. It is important therefore for the Ministry of Labour to ensure that it establishes a wages council for domestic workers so that the tripartite partners can come up with specific working conditions for this sector that may be reviewed from time to time according to existing economic conditions. There is a need for governmental support and sufficient advocacy for and training of domestic workers. Society at large needs to reconstitute its idea of domestic work. The continuation of this negative attitude has left hundreds of thousands of men, women, and children unable to break free of the abuse, neglect, and cycle of poverty associated with working as domestic workers.
All stakeholders also need to campaign vigorously for the ratification of Convention 189 and its implementation.
Advocacy Governance and Community Partnerships,
Kituo Cha Sheria.