Kenya’s economic and employment crisis are driving more people to seek jobs outside the country. Women are the most affected because they are underrepresented in various sectors of the workforce, and therefore risky opportunities in the Middle East often seem like the only option.]About 42 percent of Kenyans live below the poverty line; therefore support through working abroad is the only life saver. Furthermore, there are few opportunities for low-skilled workers; and traditionally in Kenya, domestic workers, are underpaid by employers who do not respect the set minimum wage, and there is hardly any enforcement therefore many opt for the opportunities abroad where they are promised better pay. This is evident in our courts because the domestic workers move to court to enforce their rights. In Stella Amukoko Amutabi v Saijal Shikotra, The Claimant was employed by the Respondent as a Domestic Servant from 15.3.2008 and served until 31.10.2013 she resigned after serving a 3 months’ notice to the employer. She instituted a suit accusing her employer of underpayment during the whole period she rendered her service and further that she was forced to work during public holidays. She therefore sought to recover the salary underpayment plus compensation for the public holidays worked. The court entered judgment for the claimant in the sum of ksh.110, 576.60 being her salary underpayment in arrears. The above circumstances prompt Kenyans to migrate to the Middle East due to the lucrative job offers available and better wages. This is without due regard of the well-publicized risks that come with their stay in the Gulf nations. [1: Kenya National Bureau of Statistics Report,2018] [2: Jillian Keenan, ‘Doubts still linger on Kenyan’s safety in the middle east’ Daily Nation (Nairobi 29 July 2019)] [3: Cause No 112 of 2014]
THE IMPACT OF RECRUITMENT AGENCIES
A recruitment agency acts as a kind of intermediary between a company or an employer that’s looking to hire someone and a job seeker who is looking for employment. Before the government’s involvement in the labor recruitment agencies early this year, there were about 1,050 recruitment agencies both unauthorized and authorized operating from Nairobi, Mombasa and Kikuyu. The predicament facing Kenya is that after the government’s review, rogue brokers have emerged to circumvent the new regulations. They promise workers an official visa and a passport to the Middle East without getting any formal training and no way to get back home. [4: Winnie Otieno, `Only 65 agencies authorized to place workers in jobs abroad’ Business Daily (Nairobi May 7 2018)accessed 5 August 2019] [5: Ibid]
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Agencies have played a big role in the recruitment of workers to be employed Saudi Arabia. This move has led to a number of Kenyans migrating to Saudi Arabia illegally using fake documents and as a result the government is not able to account for the number of workers in Saudi Arabia hence unable to put up effective mechanisms to deal with the violations they undergo. This move has led to government intervention.
In Khobesh Agencies Limited & 32 others v Minister of Foreign Affairs & International Relations & 4 others, The Applicants herein are involved in, amongst others, the act of hiring employees for different interested persons within and out of the Country including the Middle East for casual labor. In the process of carrying out their duties, they enter into numerous Contracts with other agencies, institutions and organizations out of the country with the sole intention of assisting Kenyans interested in securing Employment abroad but for gain and pursuant to the 2nd Interested Party’s Procedures and Requirements for operating a private employment agency, the accreditation certificates are issued by the said 2nd Interested Party and the same is valid for one year. However, in 2012 the Applicants experienced difficulties in having their accreditation certificates renewed by the Ministry of Labor for unknown reasons .They moved to court citing the said action by the Ministry was precipitated by recent happenings of reported mistreatment of domestic workers in the Middle East Countries which was of major concern to both the Kenyan Government and the public at large. The court held that there was nothing wrong in the steps taken by the Government in protecting its citizens from the risk of cruel, inhuman and degrading treatment in the Republic of Saudi Arabia until such a time mechanisms would be put into place ensuring that the citizens of this Country do not face any derogatory treatment in the said country.
The business daily reported a case of a woman, Zawadi, who was recruited by an agency via illegal means and has since been missing, after she was allegedly forced to convert her religion contrary to her will .Apprehensive of her fate Zawadi called her family and instructed them to ensure that her body is brought back to Kenya for burial in case of death and claimed that it was the last time she was calling them. The woman who recruited her is well-known and has been accused of colluding with fake agencies in Nairobi and Mombasa to hunt and recruit naïve girls. The above story reflects how the agencies have a huge impact on Kenyans as they make appealing offers to their customers which they cannot turn down but they end up coming back home in coffins because they went to the Gulf illegally . [9: Winnie Otieno,` Shady Agencies lure youths despite ban’ Business Daily(Nairobi 9 November 2018) accessed 30 July 2019]
Currently, more than a hundred registered recruitment agencies were allowed to resume practice under strict new guidelines.NEA which was launched in May this year has been tasked with protecting workers abroad. Each agency is required to pay a Sh1.5 million bond so that if an agency sends a worker into an abusive situation, the cost of returning her home will be met through the bond. New workers also need to undergo a two-week certification course, within a syllabus developed by the government’s NITA and NEA. It includes homecare training, life skills and pre-departure information taught by a handful of training institutions authorized and vetted by the government. [11: Njeri Rugene, `Doubts still linger on Kenyan’s Safety in the Middle East’ Daily Nation (Nairobi,29 July 2019)2]
IMPACT OF KENYA-SAUDI ARABIA BILATERAL AGREEMENT ON KENYAN DOMESTIC WORKERS
In September 2011, the Ministry of Labor convened an Inter-Ministerial Committee to draft a labor agreement particularly aimed at providing a legal framework for the protection of rights of Kenyan domestic workers. This move was led by the fact that the Saudi Arabia Government has not subscribed to the International labor conventions therefore exposing Kenyan domestic workers to abuse. Further, Saudi Arabian Government declined Kenya’s request of having a bilateral labor contract, leaving the Kenyan Government with no other choice but to halt further migration until a proper framework was put into place to protect the workers. [12: Christabel Ligami ,`Kenya Lifts Ban on Sending Workers to Saudi Arabia’ (2017)News Deeply accessed 29 July 2019]
A bilateral agreement was signed in 2017 whose aim is to enhance cooperation on recruitment of domestic workers in a manner that realizes the interests of both countries maintains their sovereignty and secures the rights of both the workers and employers; to realize the importance of promoting cooperation between both countries in this field of recruitment of domestic workers; recognizing the importance of mutual cooperation, to strengthen actions on labour matters by encouraging consultations and dialogue among the stakeholders as well as to promote a harmonious relationship between domestic workers and employers. [15: Agreement between the Government of Kenya and the Kingdom of Saudi Arabia on Recruitment of Domestic Workers]
The agreement is only valid for 5 years but is subject to renewal for similar periods. The main impact is the overall improvement of working conditions. The workers will enjoy better working conditions, insurance cover including a life insurance policy as well as descent accommodation accompanied by a decent meal. The minimum wage is now set at Sh40, 000 for any work done in addition to overtime allowances. Initially these things existed but had not been enforced. [17: Article 11, Agreement between the Government of Kenya and the Kingdom of Saudi Arabia on Recruitment of Domestic Workers] [18: Christabel Ligami ,`Kenya Lifts Ban on Sending Workers to Saudi Arabia’ (2017)News Deeply accessed 29 July 2019]
The agreement has led to the introduction of what is best known as a Musaned system; where employment agencies are required to be registered legally and carry out their businesses in accordance with the laws of Kenya. Following this, the number of agencies has drastically reduced from 1,000 to less than 100.This system incorporates the electronic recruitment of house helps and also lists the rights and duties of domestic workers. They are also required to carry out training, which will equip migrant workers with the knowledge, skills, attitudes, and values to enable them cope with the challenges of their new work environment. The system enhances the smooth running of the contracting process, it provides accurate labor market information, offers a fast dispute resolution, reduces recruitment costs and ensures there is transparency [19: Article 5, Agreement between the Government of Kenya and the Kingdom of Saudi Arabia on Recruitment of Domestic Workers] [20: James Wanzala, ’Pact with Saudi Arabia raises minimum pay’, Standard Digital (Nairobi 22 Jan 2019)accessed30 July 2019] [21: ibid] [22: James Wanzala, ‘Pact with Saudi Arabia raises minimum pay’, Standard Digital (Nairobi 22 Jan 2019) accessed 30 July 2019]
The agreement grants the contractual parties the right of recourse to competent authorities in case of contractual dispute, in accordance with applicable laws. This means that Saudi employers will not be able to hold domestic workers hostage if they act contrary to the terms of the contract. [23: Article 4g, Agreement between the Government of Kenya and the Kingdom of Saudi Arabia on Recruitment of Domestic Workers]
SUMMARY
International Human Rights law as currently structured does not expressly provide for protection of domestic workers from abuse in countries like Saudi Arabia. It has been proposed that the global community should derive a set of principles from the already existing framework which will guarantee individual accountability of human rights violations.
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