Date of publication:

02/24/2025

Kenya

Do domestic laws and policies prohibit forced or compulsory labour?

ANALYSIS

Assessment by population

Refugees
Analysis

The Constitution, under article 30 (2), prohibits the performance of forced labor by any person. The Employment Act, under article 2, defines forced or compulsory labour as “any work or service which is extracted from any person under the threat of any penalty, including the threat of a loss of rights or privileges, which is not offered voluntarily by the person doing the work or performing the service.” With few exceptions stated under article 4(2) of the Employment Act, forced labor is prohibited and any person that contravenes it commits an offence and shall be liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding two years or to both pursuant to article 4(3) of the Act. Furthermore, the Penal Code, as per article 266, provides that any person who unlawfully compels any person to labour against the will of that person is guilty of a misdemeanor. Therefore, the relevant domestic laws of Kenya prohibit and penalizes the act of forced labour on any person including refugees.

    LAW & POLICY

    Related provisions of domestic law or policy

    The Penal Code

    Legal provision

    Article 266 Unlawful compulsory labour

    Unlawful compulsory labour Any person who unlawfully compels any person to labour against the will of that person is guilty of a misdemeanour. Offences Under Part Where it appears that any of the offences specified under this Part is committed for the purpose of exploitation, the person committing the offence shall be charged with the appropriate offence as specified in the Counter Trafficking in Persons Act.

    The Employment Act

    Legal provision

    Article 4 - Prohibition against forced labour

    (1) No person shall use or assist any other person in recruiting, trafficking or using forced labour; (2) The term “forced or compulsory labour” shall not include— (a) any work or service exacted by virtue of compulsory military service laws for work of a purely military character: Provided that forced or compulsory recruitment of children for use in armed conflict shall be deemed to be forced or compulsory labour; (b) any work or service which forms part of the normal civic obligations of the citizens of Kenya; (c) any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the work or service is carried out under the supervision and control of a public authority and that the person is not hired out to or placed at the disposal of private persons, companies or associations; (d) any work or service exacted in cases of an emergency, such as in the event of war or disaster or threat of calamity in any circumstance that would endanger the existence or the well-being of the whole or part of the population; and (e) minor communal services performed by the members of the community in the direct interest of the said community, provided the members of the community or their representatives are consulted.

    Article 3 - Application

    (1) This Act shall apply to all employees employed by any employer under a contract of service. (2) This Act shall not apply to— (a) the armed forces or the reserve as respectively defined in the Armed Forces Act (Cap. 199); (b) the Kenya Police, the Kenya Prisons Service or the Administration Police Force; (c) the National Youth Service; and (d) an employer and the employer’s dependents where the dependents are the only employees in a family undertaking.

    Article 2 Interpretation.

    “child” means a person who has not attained the age of eighteen years. “worst form of child labor” with respect to juveniles, means their employment, engagement or usage in any activity comprising of— (a) all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory recruitment of children for use in armed conflict; (b) the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances; (c) the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties; (d) work which, by its nature or the circumstances in which it is carried.

    The Constitution of Kenya

    Legal provision

    Article 30 - Slavery, servitude and forced labour

    (1) A person shall not be held in slavery or servitude. (2) A person shall not be required to perform forced labor.