Date of publication:

02/24/2025

Kenya

Do domestic laws and policies prohibit the employment of children under specified ages?

ANALYSIS

Assessment by population

Refugees
Asylum-seekers
Analysis

The Constitution of Kenya, 2010, under article 53 (1), states that every child has the right to protection from hazardous or exploitative labor. Specifically, the Refugees Act of 2021, as per article 20 (1), provides that the Commissioner, that is mandated to oversee refugee matters, has the duty to ensure that the dignity and safety of refugee women and children is safeguarded. The Department of Refugee Services (DRS), under the Ministry of Interior and Coordination of National Government, coordinates such protection and assistance to refugees.

Both the Employment Act, 2007, and the Child Act, 2022, defines “child” as a person who has not attained the age of eighteen years. Hence, any child in Kenya, whether they are nationals or foreigners (including refugees), falls under this definition and, hence, the mentioned laws are equally applicable to refugees. Also, the Child Act, under article 2, has defined child labor as a work done by a child which is exploitative, hazardous or otherwise inappropriate for a person of that age; and places at risk the child’s well-being, education, physical or mental health, or spiritual, moral, emotional or social development.

According to the Child Act, article 18, no person shall be subjected to child labor and the specific provision of the Employment Act shall apply in addition to the child Act. The Employment Act, explicitly prohibits, as per article 53(1), the worst form of child labor. The Employment Act, under article 2, has exhaustively listed those acts that would be considered as worst form of child labor. 

Furthermore, according to article 56 (1) of the Employment Act, no person shall employ a child who has not attained the age of thirteen years old. While, pursuant to article 56(2) of the Employment Act, a child between thirteen and sixteen years of age may be employed to perform light work that would not harm his health, development, education, or his participation in vocational or training programs. The Act has put in place various safeguards against child labor including time restriction in employing child labor (article 59) and the Minister of Labor and Social Protection is mandated to oversee such matters. 

In line with article 64 (1) of the Employment Act, it is an offence to employ, engage or used a child in contravention of the Act. Further, as per sub-article 2 of the same article, if the act constitutes worst form of child labor, the person shall on conviction be liable to a fine not exceeding two hundred thousand shillings or to imprisonment for a term not exceeding twelve months or to both. 

The Government has put in place institutional mechanisms with the objective of protection against child labor. The Ministry of Labor conducts labor inspections and enforces labor laws, including those related to child labor. Further, it directs activities to promote awareness and withdraw children from child labor through its Child Labor Division. The National Police Service has the role to investigate and enforce laws related to worst form of child labor in coordination with Ministry of Labor. And Office of the Director of Public Prosecutions enforces laws through the prosecution of criminal offenses, including labor-related offenses.

Therefore, in Kenya, there are favorable legislations and institutional mechanisms in place that protect all children, including refugee children, from child labor. 

    LAW & POLICY

    Related provisions of domestic law or policy

    The Children Act

    Legal provision

    Article 2

    "child" means an individual who has not attained the age of eighteen years. "child labor" means work done by a child which— (a) is exploitative, hazardous or otherwise inappropriate for a person of that age; and (b) Places at risk the child’s well-being, education, physical or mental health, or spiritual, moral, emotional or social development.

    Article 18

    (1) No person shall subject a child labor, domestic servitude, economic exploitation or any work or employment which is hazardous, interferes with the child’s education or is likely to be harmful to the child’s health or physical, mental, moral or social development. (2) For the purposes of subsection (1)— (a) "employment" has the meaning assigned to it under section 52 of the Employment Act (No. 11 of 2007); (b) the provisions of Part VII of the Employment Act (No. 11 of 2007) shall apply with necessary modifications in addition to, and not in substitution for, the provisions of this Act relating to the employment of children or subjection of children to child labour.

    The Employment Act

    Legal provision

    Article 64 - Penalty for unlawful employment of child

    (1) A person who employs, engages, or uses a child in an industrial undertaking in contravention of the provisions of this Part, commits an offence. (2) A person who uses a child in any activity constituting worst form of child labour commits an offence and shall on conviction be liable to a fine not exceeding two hundred thousand shillings or to imprisonment for a term not exceeding twelve months or to both. (3) It shall be a defense if the accused person proves that he genuinely had reason to believe that the child was above the age limit, which is the subject of the charge.

    Article 59 - Time restriction in employing a child

    (1) Subject to section 60, no person shall employ a child in an industrial undertaking between the hours of 6.30 p.m. and 6.30 a.m. (2) Notwithstanding the provision of subsection (1), a person may employ a male young person in cases of emergencies which could not have been controlled or foreseen, and which interfere with the normal working of the industrial undertaking, and which are not of a periodical nature. (3) Notwithstanding the provision of subsection (1), the Minister may, after consultation with the Board, authorize an employer in writing to employ a young person for a specific period of the night subject to such conditions as the Minister may determine.

    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.

    Article 56 - Prohibition of employment of children between thirteen years and sixteen years of age

    (1) No person shall employ a child who has not attained the age of thirteen years whether gainfully or otherwise in any undertaking. (2) A child of between thirteen years of age and sixteen years of age may be employed to perform light work which is— (a) not likely to be harmful to the child’s health or development; and (b) not such as to prejudice the child’s attendance at school, his participation in vocational orientation or training programs approved by the Minister or his capacity to benefit from the instructions received. (3) 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.

    Article 53.1 - Prohibition of worst forms of child labour

    Notwithstanding any provision of any written law, no person shall employ a child in any activity which constitutes worst form of child labor.

    Article 58.2 - Restriction in employing child of between thirteen and sixteen years of age to attend machinery

    No person shall employ a child in any opencast workings or sub-surface workings that are entered by means of a shaft or adit.

    The Refugee Act

    Legal provision

    Section 20 - Refugee women and children

    The Commissioner shall ensure that specific measures are taken to ensure the dignity and safety of women and children seeking asylum and women and children who have been granted refugee status at all times during their stay in designated areas.

    The Constitution of Kenya

    Legal provision

    Article 53 - (1) (d) Children

    Every child has the right— to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labor.