Right to income of working children in Kenya Submitted in partial fulfilment of the requirements of the Bachelor of Laws Degree, Strathmore University Law School By Ochieng Emmie Rose Achieng 094595 Prepared under the supervision of Dr Jennifer Gitahi February 2020 Word count: 10930 (excluding footnotes and bibliography) Table of Contents Acknowledgments iv Declaration v Abstract vi List of Abbreviations 1 List of Cases 2 List of Legal Instruments 3 Chapter One: Introduction 4 1.1 Background 4 1.2 Statement of problem 5 1.3 Statement of objectives 6 1.4 Hypothesis 6 1.5 Research questions 6 1.6 Justification of the study 6 1.7 Theoretical framework 7 Labour theory 7 Interest theory 8 1.8 Literature Review 8 1.9 Research design 12 1.9.1 Research Design and Methodology 12 1.9.2 Assumptions 12 1.9.3 Limitations 12 1.9.4 Chapter breakdown 12 1.9.5 Timeline/duration 13 Chapter Two: Rationale Behind Child Admission into Employment 14 2.1 Introduction 14 2.2 History of Child Employment 14 2.3 Child Labour 15 2.3.1 The Question of Age 16 2.3.2 Causes of Child Labour 17 2.4 Child Labour in Kenya 18 2.5 Conclusion 20 Chapter Three: Best Interest Principle in the laws on working children in Kenya 21 3.1 Introduction 21 3.2 What is the Best Interest Principle? 22 3.3 History of the Principle 22 3.4 Best Interest Principle in the Kenyan Context 24 3.5 Existing laws on working children 24 3.5.1 Employment Act of 2007 24 3.5.2 Children Act of 2001 26 3.6 ‘Missing’ provisions for working children in Kenya as seen in the laws of UK 26 3.7 Intervention of the BIP 29 3.8 Conclusion 29 Chapter Four: Proceeds of Employment for Working Children in Kenya 31 4.1 Introduction 31 4.2 Position of the right to income in Kenya 31 4.3 Significance of the right to income 32 4.4 Inclusion of the right of income for working children 33 4.5 Conclusion 34 Chapter Five: Recommendations and Conclusion 36 5.1 Introduction 36 5.2 Findings 37 5.3 Recommendations 37 5.4 Conclusion 38 Bibliography 39 Kenyan Legislation 39 Books 39 Journals 40 Dissertations and Theses 41 Internet Sources 41 Acknowledgments I would like to sincerely thank Dr Jennifer Gitahi, my supervisor, for her unwavering support, guidance and encouragement throughout the writing of this paper. Her assistance steered my ideas and polished my arguments through provision of materials and connecting to persons in the field of my research problem for more insight, for which I am grateful. I would also like to appreciate my lecturers, Mr. Francis Kariuki and Ms. Anne Kotonya, whose expert advice contributed greatly to the writing of this paper. My classmates, friends and family were also a constant support system, for which I am grateful. Declaration I, OCHIENG EMMIE ROSE ACHIENG, do hereby declare that this research is my original work and that to the best of my knowledge and belief, it has not been previously, in its entirety or in part, been submitted to any other university for a degree or diploma. Other works cited or referred to are accordingly acknowledged. Signed: ................................................................... Date: ....................................................................... This dissertation has been submitted for examination with my approval as University Supervisor. Signed: ....................................................................... Dr Jennifer Gitahi Abstract There can be no keener revelation of a society’s soul than the way in which it treats its children. Nelson Mandela, Former President of South Africa This paper analyses the laws on working children between the ages of thirteen and fifteen and their right to income. It seeks to understand the rationale behind the law allowing these children into admission of employment as per Article 7 of the Minimum Age Convention, which is binding on Kenya. This provision shows that children between the mentioned ages have had their capacity extended from the previously known incapacity to cater for themselves. The concept of working children was first seen during the British industrial revolution which faced the challenge of child labour. The rationale for according children the capacity to work stems from the realities that children, especially in this age bracket, have had to cater for their own needs and to provide for themselves, and therefore achieve this through employment. The paper will delve into the discussion of child labour, which necessitated the protection of working children in the law. Furthermore, children being a vulnerable group of people in the society, need laws to safeguard their interests, and these existing laws shall be compared against the best interest principle, and a determination will be made on the findings and further give recommendations on the discussion on the right to income. 2 13 List of Abbreviations ACRWC African Charter on the Rights and Welfare of the Child AIDS Acquired Immune Deficiency Syndrome BIP Best Interest Principle CRC Convention on Rights of the Child. HIV Human Immunodeficiency Virus UN United Nations UK United Kingdom List of Cases 1. Bhutt v Bhutt (2014) eKLR. 2. Canadian Foundation for Children, Youth and the Law v Attorney General (2004), The Supreme Court of Canada. 3. EKG v CK & Another (2017) eKLR. 4. Felister Nduku Nzaku v Joyce Wairimu Gitau (2016) eKLR. 5. Joseph Maraka Adoro (minor suing through the uncle) v Paul Njogo Kihara (2004) eKLR. 6. Naidike v Attorney-General of Trinidad and Tobago (2004), The United Kingdom Privy Council. 7. N M M v J O W (2016) eKLR. 8. Noordin v Karim (1990) eKLR. 9. Re C K S (Minor) (2018) eKLR. List of Legal Instruments 1. African Charter on the Rights and Welfare of the Child, 11 July 1990, CAB/LEG/24.9/49. 2. Geneva Declaration of the Rights of the Child, 26 September 1924, League of Nations. 3. Minimum Age Convention, 26 June 1973, 1015 UNTS 297. 4. UN Convention on the Rights of a Child¸ 30 July 1990, 1577 UNTS 147. 5. UN Declaration of the Rights of the Child, 20 November 1959, A/RES/1386 (XIV). 6. Worst Forms of Child Labour Convention, 17 June 1999, C182. Chapter One: Introduction 1.1 Background The Minimum Age Convention is a creation of the International Labour Organization, which is a branch of the United Nations organization that seeks to establish standards of labour, develop policies and programmes aimed at promoting decent work for everyone.[footnoteRef:1] The Convention attempts to curb forced child labour and further regulate their working as they have been admitted to employment.[footnoteRef:2] It was adopted on the 26 June 1973, which Kenya ratified on the 9 April 1979,[footnoteRef:3] and therefore is binding on Kenya in this regard. [1: About the ILO - https://www.ilo.org/global/about-the-ilo/lang--en/index.htm on 12 February 2019.] [2: C138 Minimum Age Convention, 1973 - https://www.humanium.org/en/minimum-age-convention/ on 12 February 2019.] [3: C138 Minimum Age Convention, 1973 - https://www.humanium.org/en/minimum-age-convention/ on 12 February 2019.] Kenya has gone further to incorporate the provisions of this Convention through the regulation of working children in the Employment Act,[footnoteRef:4] providing that no child who has not reached the age of thirteen years shall be admitted into employment.[footnoteRef:5] A child has been defined as any person who has not attained the age of eighteen years,[footnoteRef:6] a similar definition to that found in the UN CRC.[footnoteRef:7] For the purposes of this paper, a child is any person between the age of thirteen and fifteen years. [4: Part VII, Employment Act (2007).] [5: Section 56(1), Employment Act (2007).] [6: Section 2, Children Act (2001).] [7: Article 1, UN Convention on the Rights of a Child, 30 July 1990, 1577 UNTS 147.] Regardless of the fact that children lack capacity and are generally considered unable to work, there have been developments in the recent past to show that children have been seen to have capacity to contract for employment[footnoteRef:8] or for their basic needs.[footnoteRef:9] This is the realization of the provisions of Article 7 of the Minimum Age Convention which provides that the minimum age for the employment of a child is thirteen years with conditions that the work should not be injurious to their health and safety and should not be a hindrance to their attainment of education.[footnoteRef:10] Furthermore, the rationale for this is that children have had to cater for their needs and provide for themselves as they lack an adult as a parent or guardian and thus achieve this through employment.[footnoteRef:11] [8: Part VII, Employment Act (2007).] [9: Section 4, Sales of Goods Act (1979).] [10: Article 7, C138 Minimum Age Convention, 26 June 1973, 1015 UNTS 297] [11: Dipankar D, ‘Addressing the Needs of Orphans and Vulnerable Children, 2.4, 2009, 22.] Allowing children to work has necessitated their rights to be safeguarded in law as children are considered a vulnerable group of persons in society. This has been seen in the protection of children present in the Employment Act,[footnoteRef:12] which has adopted international legislation on working children including the type of work they are allowed to carry out which also prohibits the type of work a child should not be involved in,[footnoteRef:13] timings of work[footnoteRef:14] and other such particulars. However, despite these provisions in place, certain aspects of the working child have been overlooked and as such the best interest of the child has not been upheld. The best interest principle stipulates that decision makers are obliged to factor in the general welfare of children when making decisions about their care and placement.[footnoteRef:15] [12: Part VII, Employment Act (2007).] [13: Section 53, Employment Act (2007).] [14: Section 59, Employment Act (2007).] [15: Breen C, The Standard of the Best Interests of the Child; A Western Tradition in International and Comparative Law, The Hague; Martinus Nijhoff Publishers, 2002.] For instance, despite the two steps taken forward to increase the capabilities of children to carry out certain acts for themselves, one step is taken back as there has been a gap in the law as to the proceeds of the employment. A right in this regard possesses the meaning of a legally recognised interest in, to, or against a person or a thing.[footnoteRef:16] Therefore, these working children do have a right in the proceeds of their employment through their exertion in working and are thus entitled to them. Right to income is an essential part of the human being and his existence and leads to the improvement of their wellbeing and livelihood,[footnoteRef:17] and thus important. Also, because of the vulnerability of children in the workplace, whether in the informal or formal sector, written contracts, which have been prohibited by law,[footnoteRef:18] are meant to safeguard their interests in the employment field and provide evidence of agreement in the case of violation or dispute and are thus an important requirement of working children. Furthermore, a written contract will ensure job security for the child. [16: Beale J, A Treatise on Conflict of Laws, Harvard University Press, Cambridge MA, 1916, 139.] [17: Kariuki Francis, Ouma Smith and Ng’etich Raphael, Property Law, Strathmore University Press, Nairobi, 2016, 1. ] [18: Section 57, Employment Act (2007).] 1.2 Statement of problem The law is silent on what happens to the proceeds of the employment for a working child and further prohibits written contracts for a working child between thirteen and fifteen years. 1.3 Statement of objectives 1. To explore the rationale behind allowing children to be admitted into employment. 2. To understand the best interest principle as applied to working children. 3. To determine whether the best interest principle is sufficient ground to accord and enforce the protection of the right of income for working children through a comparative study between Kenya and the United Kingdom. 1.4 Hypothesis Children who are admitted into employment in the age bracket of thirteen and fifteen years should have the right to income protected under law and the restriction on written contracts removed by virtue of their best interest through their admission into employment. 1.5 Research questions 1. What rationale did the drafters of the Minimum Age Convention and subsequently the Employment Act use to admit children into employment? 2. What is the best interest principle and is it applicable to children in employment? 3. Can the best interest principle have substantial persuasion to make the laws accord the right to income to children between the ages of thirteen and fifteen and remove the restriction on written contracts to working children? 1.6 Justification of the study One can only own what is theirs by working for it, and consequently earning it. In this instance, children between the mentioned age bracket have been admitted into employment, and through their participation in work, they acquire interests in the value of their labour, but the law is silent on according them the protection of the right to income. Furthermore, a written contract will be beneficial to the working child as their rights and consequent duties shall be in written form, and thus will be used as reference in the case of violation or dispute. It will also ensure job security for the working child. This seeks to achieve the overall aim of protecting the child and their interests, as equally envisioned in the Constitution of Kenya.[footnoteRef:19] [19: Article 53(2), Constitution of Kenya (2010).] The justification for this study was seen in the case of Felister Nduku Nzaku v Joyce Wairimu Gitau[footnoteRef:20] where a girl was employed as a house help through an oral contract at the age of fifteen years. She was employed at an agreed salary of Kshs. 4,000 per month, which was below the minimum wage for house helps at the time. The employer often delayed or refused to give the payment due, refused to give annual leave, failed to give her an off day amongst other violations.[footnoteRef:21] [20: (2016) eKLR.] [21: Paragraph 4, Felister Nduku Nzaku v Joyce Wairimu Gitau (2016) eKLR.] This research will serve as a justification to give to these working children what rightfully belongs to them by virtue of their interest in it and further provide security for the enjoyment of these rights through advocating for written contracts. This protection is important in this regard because children are vital to a society and therefore every aspect of a child must be guarded by the law, up until the child is considered an adult, able to cater for themselves and have the employment laws applicable to them as adults. 1.7 Theoretical framework The theoretical framework sought to be adopted by this research is that of the labour approach and interest approach. The first theory speaks to the rationale of benefiting from one’s own labour,[footnoteRef:22] including children, and the latter theory speaks to the interest of children. [22: Bell A and Parchomovsky G, ‘A theory of property’ 90 Cornell Law Review, 2005, 549.] Labour theory According to this theory, John Locke posits that people enter into society with the aim of preserving property.[footnoteRef:23] Borrowing from the natural rights theory, property is a gift of nature which was given to all persons by virtue of their freedom and equality.[footnoteRef:24] The labour theory makes an assumption that property was given to all in common by God, thus an inherent right,[footnoteRef:25] and in order for an individual to acquire private property rights, this individual must have used their labour on that thing.[footnoteRef:26] This therefore means that the criteria for allocation of property according to this theory is the expending of one’s effort and sweat on to a certain thing in order to make it his/hers. [23: Locke J, ‘Of Property’ in Second treatise of government, Hafner Publishing, New York, 1690, par 24.] [24: Francis I, Laudato si’- Encyclical letter of the Holy Father Francis on care for our common home, Paulines Publications Africa, Nairobi, 2015, 34.] [25: Aristotle, The politics, Cambridge University Press, Cambridge, 1988, 25-29.] [26: Kariuki Francis et al, Property Law, 33.] Therefore, the laws or rules that are to be made regarding property rights shall not exclude or favour anyone,[footnoteRef:27] but shall achieve social order.[footnoteRef:28] The labour theory posits four basic steps. The first is that every individual owns their body. Second is that each person owns the effort and sweat that their body exerts onto a thing. Third is that this effort and sweat alters the nature of the thing for his gain and fourth is that that process therefore results in ownership of the right in that thing.[footnoteRef:29] In relation to the statement at hand, just like adults, children do own their bodies in some rights, and in this instance, those who are working exert their effort to get a gain from it and therefore, acquire a right to enjoy the proceeds of their labour in that respect. [27: Pope John Paul II, Encyclical letter, Centesimus annus, 1991.] [28: Stephanie Paton, ‘The Inner-Morality of Law’ An Analysis of Lon-Fuller’s Theory’, GULS Law Review, 2014.] [29: Sprinkling, Understanding property law, 2 ed, Matthew Bender, New Jersey, 2007, 15.] Interest theory According to this theory, humans, inclusive of children, have rights resulting from their interests being sufficiently strong and they are competent to appreciate the benefit to which the interest holds.[footnoteRef:30] This means that one holds a right in a particular respect because they realize that they derive a benefit from having an interest in that particular respect. [30: Cowden M, ‘Capacity, claims and children’s rights’ Contemporary Political Theory (2012) 362-380 on https://doi.org/10.1057/cpt.2011.43 on 6 February 2019.] This theory holds an advantage as it does not require moral capacity or rationality as a prerequisite to hold the right.[footnoteRef:31] This therefore means that the categorization of children as persons who lack capacity is against this theory,[footnoteRef:32] as all is required for this theory is the understanding that a benefit is derived from that interest, and therefore a right should be held as a result of that interest. [31: Jones M and Marks LAB, ‘The Dynamic Development Model of the Rights of the Child: a feminist approach to rights and sterilization’ International Journal of Children’s Rights (1994), 271.] [32: Muthembwa Wanza Yvonne, ‘Analysing the Exclusion of Child Soldiers seeking asylum under article 1F(a) of the 1951 Refugee Convention on the Principle of the Best interests of the Child’ Unpublished LLB Thesis, Strathmore Law School, Nairobi, 2016, 7.] 1.8 Literature Review In his journal article, From Property to Person Status: A Historical Perspective on Children’s Rights, Hart posits that for a long time, children were regarded as mere addition to property, and not as persons, meaning that children did not have rights as individuals did and were not recognised as persons.[footnoteRef:33] [33: Hart, S.N, ‘From property to person status: Historical perspective on children’s rights’ American Psychologist, 1991, 53-59- https://psycnet.apa.org/record/1991-12208-001 on 24 January 2018. ] In his journal article, Children as Property¸ Montgomery posits that children have been incapacitated in law for centuries upon centuries because they are viewed to lack the maturity required to order their own lives and participate in political life.[footnoteRef:34] The irony of this statement is seen where children who are orphans or have no guardian to cater for their needs are then forced to acquire this maturity and act accordingly to meet their needs. [34: Montgomery J, ‘Children as Property,’ Modern Law Review vol 51, no 3, 1988, 323. ] In her dissertation, An Analysis of Child Labour Laws in Kenya; A Quest for the Best Interest of the Child, Daisy Tuwei posits that unlike adults, children are not accorded the negative right to participate in any form of labour that is regarded as child labour with the aim of providing for themselves. Because of this, the state feels obliged to step in to ensure protection of these children through the law.[footnoteRef:35] This law fails to take into consideration the possibility of children having the capacity to hold a right in income by virtue of having to cater for their own needs and thus acquiring the interest. [35: Tuwei Chepchirchir Daisy. ‘An Analysis on Child Labour Laws in Kenya; A Quest For The Best Interests of The Child’ unpublished LLB Dissertation, Strathmore University Law School, Nairobi, 2017, 11.] In his book, On Liberty, John Stuart Mills posits that children defy the conservative view of rights, because they lack rational capacity, and therefore he excludes them from his conception of liberty.[footnoteRef:36] He goes on to state that liberty rights that allow you to do as you please only apply to those who have attained full maturity of their faculties, and children do not meet this criteria.[footnoteRef:37] [36: John Stuart Mill, On Liberty, Legal Classics Library (1869).] [37: John Stuart Mill, On Liberty, Legal Classics Library (1869).] In his journal article, A Question of Capacity: Towards a Comprehensive and Consistent Vision of Children and Their Status under Law, Larry Cunningham brings the question of competency with regard to children. It is defined as the ability to perform a task.[footnoteRef:38] As far as this statement goes, every individual, regardless of their age, can perform tasks. However, rights are only thought appropriate for those who possess the capacity for rational choice, this argument used to exclude children.[footnoteRef:39] However, over the years, children have been seen to hold capacity to contract for employment, and now this capacity must be guarded by the principle of the best interest of the child,[footnoteRef:40] and its existence in a written contract. [38: Cunningham Larry, ‘A Question of Capacity: Towards a Comprehensive and Consistent Vision of Children and Their Status under Law, Journal of Juvenile Law & Policy, 2006, 279.] [39: Cunningham Larry, ‘A Question of Capacity: Towards a Comprehensive and Consistent Vision of Children and Their Status under Law, 279.] [40: Tuwei Chepchirchir Daisy. ‘An Analysis on Child Labour Laws in Kenya; A Quest For The Best Interests of The Child’ unpublished LLB Dissertation, Strathmore University Law School, Nairobi, 2017, 11.] This principle is embodied in the UN CRC. It states that the principle shall be a primary consideration and must be applied in a systemic manner in any matters concerning a child.[footnoteRef:41] The principle is also highlighted in the Constitution.[footnoteRef:42] It has also been highlighted in the Banjul Charter (ACRWC),[footnoteRef:43] and in the Children Act.[footnoteRef:44] It further goes on to guarantee the essential protection, survival, and ultimate development of children.[footnoteRef:45] It is almost certain to invoke the provisions of the best interest theory to accord to working children their right to income, and have further rights provided in a written contract to safeguard their interests. [41: Article 40(3), UN Convention on the Rights of a Child, 30 July 1990, 1577 UNTS 147.] [42: Article 53(2), Constitution of Kenya (2010).] [43: Article 4, African Charter on the Rights and Welfare of the Child, November 29, 1999.] [44: Article 4(2), Children Act (2001).] [45: Article 5, African Charter on the Rights and Welfare of the Child, November 29, 1999.] In her dissertation, Analysing the Exclusion of Child Soldiers seeking asylum under article 1F(a) of the 1951 Refugee Convention on the Principle of the Best Interests of the Child, Yvonne Muthembwa posits that this principle of best interest has always been used in instances of family matters and has such been limited in that regard.[footnoteRef:46] This has been seen in cases such as re C K S (Minor)[footnoteRef:47]and Noordin v Karim.[footnoteRef:48] [46: Muthembwa Wanza Yvonne, ‘Analysing the Exclusion of Child Soldiers seeking asylum under article 1F(a) of the 1951 Refugee Convention on the Principle of the Best interests of the Child’ Unpublished LLB Thesis, Strathmore Law School, Nairobi, 2016, 34.] [47: (2018) eKLR.] [48: (1990) eKLR.] In the case of Canadian Foundation for Children, Youth and the Law v Attorney General (2004), it has even been stated that the principle is incapable of ‘being identified with some precision.’[footnoteRef:49] This then means that the best interest of the child is left to the discretion of the adults and even the courts, when the child is capable of airing their own views.[footnoteRef:50] Therefore, in deciding such matters involving a child, the child in question should be given an avenue to state their position. [49: Canadian Foundation for Children, Youth and the Law v Attorney General (2004), The Supreme Court of Canada. ] [50: ZH (Tanzania)(FC) v Secretary of State for the Home Department (2011), The Supreme Court of the United Kingdom.] In their journal article, Child-Responsive Practices in Australian Family Law: Past Problems and Future Directions, even though written in the context of Australia, Moloney and Mclntosh posit that the traditional approach of best interest focused solely on the welfare of the child, rather than the rights,[footnoteRef:51] which should be taken into account. [51: Moloney L and Mclntosh J, ‘Child-Responsive Practices in Australian Family Law: Past Problems and Future Directions’, 10 Journal of Family Studies, 2004, 71.] In the case of Joseph Maraka Adoro (minor suing through the uncle) v Paul Njogo Kihara, it was stated that it is not wrong for a child to engage in a vocation in order to become responsible citizens in future.[footnoteRef:52] This further ascertains the fact that the law has given children the go-ahead to work, with the necessary guidelines in place. [52: (2004) eKLR.] In his journal article, Addressing the Needs of Orphans and Vulnerable Children, Dipankar provides that one of the groups of children that justify this research are the vulnerable children. Children with HIV/AIDS or with parents or guardians with HIV/AIDS are considered vulnerable, or if they are living on the streets.[footnoteRef:53] This makes up a category of children who are forced to cater for themselves and they achieve this through employment. [53: Dipankar D, ‘Addressing the Needs of Orphans and Vulnerable Children, 2.4, 2009.] To add, in her journal article, The Invisible Child Worker in Kenya, Collette A adds another category similarly in need of protection as the invisible children, who mainly work in the domestic industry.[footnoteRef:54] These are children who, out of circumstances, have been forced to work with the aim of meeting theirs and/or their families daily needs. As such, it is only ordinary for these children to acquire interests in earning the proceeds of their work. The law gives them the go ahead to work but remains silent on a vital part of employment, which is the right to an income. [54: Collette A, ‘The Invisible Child Worker in Kenya’, 2.4 Nordic Journal of African Studies, 2001.] It is therefore clear from the above authors that it is a foreign concept for children to receive the proceeds from their work, because they are considered property in themselves as they were viewed as property, and anything they earn is not theirs by right. However, they have been seen to have enough capacity to be admitted into employment, without being able to realize their livelihood through the right to income. From the works cited above, none address whether children can participate in work and subsequently enjoy the right to income, and have it stipulated in a written contract by virtue of their best interest, and this is the gap this paper seeks to address. 1.9 Research design 1.9.1 Research Design and Methodology The research design used is the correlational design and evaluation of judicial decisions. The correlational design will involve the study of the relationship between children, rights and capacity, using certain occurrences such as children being allowed to contract for employment. This will be achieved through reading of books, journals and articles that will be accessed through various subscriptions such as JStor, Oxford, Cambridge Journals, Hein Online, among others. The evaluation of judicial decisions will involve the interpretation of previous judicial decisions and their effect on the question at hand. The judicial decisions used will be obtained through visiting of the Kenya Law website and databases of other countries. The research methodology to be used in this paper will be qualitative desktop research. This also involves the collection of data through visiting the school library, reading of article, journals and books. Also, there will be a comparative study between Kenya and the United Kingdom as the United Kingdom has an elaborate legal framework on working children. 1.9.2 Assumptions 1. The income to be received by these working children will be used for the good and benefit of themselves or their family. 2. The children would be motivated to work by the fact that they are required to provide for themselves and their families. 3. The existence of a written contract for working children will safeguard their rights from exploitation by employers and will provide an avenue to challenge the said exploitation or in the case of a dispute over duties and obligations. 1.9.3 Limitations A limitation to this study is the natural bias most authors have to the impossibility of children earning the value of their labour. Therefore, the study will attempt to change this bias by providing information that disqualifies the bias. 1.9.4 Chapter breakdown This research seeks to have five chapters, the following structure proposed: Chapter 1 will introduce the study by highlighting what is known about children and their incapacity to receive the proceeds of their work and propose a research on the gap found between what is known and what the researcher seeks to address. Chapter 2 will delve into the history and rationale that was used by the drafters of the Minimum Age Convention and the Employment Act to allow children to work. Chapter 3 will establish the origins and existence of the best interest principle which will be heavily relied upon in the arguments made in this research. It will look at the weightiness of this principle against the rights of a child. It will also look at whether the best interest principle can be sufficient ground for these working children to be accorded and have their rights protected. This will entail a comparison with the laws of United Kingdom on working children. This is because their regime of law depicts a more elaborate framework that safeguards working children and ensures that other rights are achieved for the working child. Chapter 4 will delve into the discussion of the right to income, specifically for working children. It will highlight the position of the right to income in our existing laws, its significance and how best to create a framework that will protect this right for the working child. The research will then conclude in Chapter 5 with the findings, conclusion and recommendations offered for the study. 1.9.5 Timeline/duration This research will be conducted between March 2019 and November 2019. Chapter Two: Rationale Behind Child Admission into Employment 2.1 Introduction International instruments drafted to regulate the working of children such as the Minimum Age Convention contain provisions allowing children to be admitted into employment,[footnoteRef:55] and sets out the conditions to be met such as light work and school attendance, safety, among others.[footnoteRef:56] In addition, the CRC provides for States to particularly provide for a minimum age for employment admission, for the regulation of the time duration and conditions of employment and appropriate penalties or other sanctions to ensure effective enforcement of the article.[footnoteRef:57] Kenya has adhered to the above provisions, as will be discussed. [55: Article 7, C138 Minimum Age Convention.] [56: Article 7(1), C138 Minimum Age Convention.] [57: Article 32, UN Convention on the Rights of a Child, 30 July 1990, 1577 UNTS 147.] With the international laws in place, this chapter will seek to understand the rationale behind the making of these laws, and why the drafters of both the international and national law saw it fit to include working children and their admission into employment as part of the law. It will achieve this by looking at the history of child employment, which turned to be child labour, its characteristics and causes, and how all this fits into motivating the law to allow for working children. The choice to look at child labour as the driving force behind the drafting of the Minimum Age Convention is seen in its Preamble, where it states that the law seeks to achieve the total eradication of child labour,[footnoteRef:58] and thus the focus of this chapter. [58: Preamble, C138 Minimum Age Convention.] 2.2 History of Child Employment Child employment can be traced back to around the eighteenth century, during the infamous British industrial revolution.[footnoteRef:59] This saw children of tender ages such as six being taken into factories and mills to work, for little or no pay at all and in the harshest of working conditions.[footnoteRef:60] To keep up with the rapid development of industries not only in Britain but in the general Europe, it became a necessity for children to work. [59: Humphries Jane, ‘Childhood and Child Labour in the British Industrial Revolution,’ Economic History Review, 2012, 2.] [60: Humphries Jane, ‘Childhood and Child Labour in the British Industrial Revolution,’ 3.] The fight against working children is said to have begun around the nineteenth century. This was seen in the passing of the 1833 Factory Act, which barred the working of children under nine years, and further provided for eight hours of work as a maximum for children above fourteen years.[footnoteRef:61] Since then, various laws have been enacted both on national and international scales to regulate the work of a child and prevent the exploitation of the same. [61: 1833 Factory Act, United Kingdom. ] 2.3 Child Labour The ILO defines it as work that deprives children of their childhood, their potential and their dignity, and that is harmful to physical and mental development and it refers to work that is mentally, physically, socially or morally dangerous and harmful to children and interferes with their schooling.[footnoteRef:62] [62: Child labour on https://libguides.ilo.org/child-labour-en on 8 May 2019.] The global estimates of child labour provided by the ILO found that between the years of 2012 and 2016, 152 million children were found to be working under circumstances that could be termed as child labour.[footnoteRef:63] Further breaking it down, 58% comprised of the boychild, making up 88 of the 152 million, leaving the 42% being the girlchild, making up the remaining 64 million.[footnoteRef:64] [63: International Labour Organization, Global Estimates of Child Labour: Results and Trends, 2012-2016, 5.] [64: International Labour Organization, Global Estimates of Child Labour: Results and Trends, 2012-2016, 5.] The global estimates provide the characteristics of child labour, two of importance are highlighted below:[footnoteRef:65] [65: International Labour Organization, Global Estimates of Child Labour: Results and Trends, 2012-2016, 12.] 1. The greatest portion of children who work are found in the agricultural sector Children who engage in work are often situated in the sector of the economy that can be classified as informal,[footnoteRef:66] agriculture forming part of this sector. The informal sector is defined as the part of the economy that comprises of the activities carried out by the majority of the urban poor, people who reside in the urban areas but earn an income that falls below the poverty line,[footnoteRef:67] and to which taxes are not remitted to the governing authority.[footnoteRef:68] [66: International Labour Organization, Child Labour: A Textbook for University Students, Publications of the International Labour Office, 2004, 23.] [67: International Labour Organization, Child Labour: A Textbook for University Students, 23.] [68: Business Dictionary, Web Finance Inc, 2019.] Children are made to work in the fields doing jobs like planting, harvesting, ploughing, weeding et cetera. Since these jobs are out in the open and not in formal structures such as offices and industries, they easily go unregulated since the arm of the law visible through the labour officers will have a challenge of locality[footnoteRef:69] as work in the agricultural sector involves a lot of moving, hence difficult to regulate. Furthermore, the demand for labour is high, and these children are used as part of the much-needed labour force. [69: Collete A, ‘The Invisible Child Worker in Kenya’, 66.] i. Most child labour occurs within the family unit This is the realization that many children involved in child labour work because they serve as contributors to the family labour and not the family income.[footnoteRef:70] This means that these children are not in an employment relationship with another person, but they are working within their families.[footnoteRef:71] This characteristic does not exclude the possibility of children working as a contributor to the family income, but this should be seen as the other side of the coin. [70: International Labour Organization, Global Estimates of Child Labour: Results and Trends, 2012-2016, 12.] [71: International Labour Organization, Global Estimates of Child Labour: Results and Trends, 2012-2016, 13.] It is almost always assumed that children work to fill the pot of the family income as it is not enough to cater for the family expenses, and thus the children chip in. However, children are also made to contribute to the family labour, for instance, when a child is made to carry out duties in the house at the expense of the influence this work shall have on the working child, as cited above. Another international instrument that works in combating child labour is the Worst Forms of Child Labour Convention, meant to complement the working of the Minimum Age Convention, an effort to be made by both the national and international authorities.[footnoteRef:72] The Convention contains a list of the worst forms of child labour,[footnoteRef:73] with the same emphasis on the type and form of impact the work should have on the life of the child.[footnoteRef:74] The Convention also requires the members to design and implement programmes to eliminate the worst forms listed.[footnoteRef:75] [72: Preamble, Worst Forms of Child Labour Convention, 17 June 1999, C182.] [73: Article 3, Worst Forms of Child Labour Convention, 17 June 1999, C182.] [74: Article 3(d), Worst Forms of Child Labour Convention, 17 June 1999, C182.] [75: Article 6, Worst Forms of Child Labour Convention, 17 June 1999, C182.] 2.3.1 The Question of Age A characteristic of child labour that carries weight on the definition is the question of age. A breakdown of the ages is as follows: 48% are between five years and eleven years.[footnoteRef:76] The years between twelve and fourteen form 28%, while 25% forms the ages of fifteen and seventeen.[footnoteRef:77] [76: International Labour Organization, Global Estimates of Child Labour: Results and Trends, 2012-2016, 13.] [77: International Labour Organization, Global Estimates of Child Labour: Results and trends, 2012-2016, 13.] 2.3.2 Causes of Child Labour The causes range from the economic factors in the country that affect ordinary households, to the family set-ups and dynamics, to present practices in the world, region or country at the time. Some instances that arise as child labour may not even be seen as child labour because they are traditions and cultures that have been engrained from generation to generation. Some of the main causes are highlighted below: i. Perceptions, traditions and customs Different societies have different customs and values that help them become who they intend to be. It has always been the role of the parents, guardians and even the community at large to ensure that children are nurtured and brought up according to the values of a given society, community or even homestead. Part of this is to ensure that these children are able to work, this work being viewed as an avenue into the life of responsibility and adulthood.[footnoteRef:78] The introduction of children into work, for instance working in the farm, taking care of younger children, doing household chores et cetera starts off as nurturing a responsible child, or child participation in work. However, it also begins the slipping into the territory of child labour, and the difference between the two begins to seem unclear.[footnoteRef:79] This is because all that is known is that tradition demands that children should be brought up in a certain way, instilled with certain traditional values, and work facilitates this learning. The notion of child labour is unknown to them or may even be termed as an excuse for laziness. [78: International Labour Organization, Child Labour: A textbook for university students, 81.] [79: International Labour Organization, Child Labour: A textbook for university students, 81.] An example of these traditions and values is the position of the girlchild in the society.[footnoteRef:80] The girlchild is not brought up to go to school for instance, as she is a natural caregiver and should therefore do as her role demands by taking care of the home and the children. This then leads to her being given house chores or given away to carry out domestic work, regardless of the age or needs of this girlchild at the time. [80: Causes of child labour - https://www.ilo.org/moscow/areas-of-work/child-labour/WCMS_248984/lang--en/index.htm on 15 May 2019.] ii. Poverty Poverty is a state of inability to obtain a certain minimum level of consumption of food and essential non-food items universally considered adequate to satisfy the minimum requirements for human sustenance.[footnoteRef:81] This may be seen as both a source and an outcome of child labour, which can be viewed in two angles, poverty on a country level and poverty on a household level.[footnoteRef:82] Poverty on a country level contains two main characteristics. One is that a poor country will lead to poor household, which then sets conducive environments for child labour,[footnoteRef:83] and two is that the socio-economic situation in the country will be of a desperate level, desperate enough to lead to child labour.[footnoteRef:84] [81: Ministry of Finance and Planning of the Republic of Kenya, The 1998/99 Child Labour Report Kenya, September 2001, 11.] [82: International Labour Organization, Child Labour: A Textbook for University Students, 84.] [83: International Labour Organization, Child Labour: A Textbook for University Students, 84.] [84: International Labour Organization, Child Labour: A Textbook for University Students, 84.] For the poverty on a household level, this is weighed against the income situation of the home. For instance, if a choice has to be made between taking a child to school and having the child work for a daily wage, the household would look at the benefits of the earnings of the child against the benefits of the child going to school.[footnoteRef:85] Such circumstances lead to the child being made to work, as more benefit is derived from them working other than the already little source of income being used to take the child to school, with the benefits of education taking a longer time to materialize than the assurance and benefit of a daily wage. More often than not, the households may even lack the means to take these children to school in totality, and so working is the only option left as it is viewed as a means of survival. [85: International Labour Organization, Child Labour: A Textbook for University Students, 86.] Other factors that have contributed to child labour include limited legal protections, exposure to individual and collective shocks, poor quality schooling or limited school access, limited decent work opportunities or difficult transitions to work, among others.[footnoteRef:86] [86: International Labour Organization, Ending child labour by 2025: A review of policies and programmes, 31.] 2.4 Child Labour in Kenya A report written on Child Labour in Kenya defined a working child as a person in the age bracket of five and seventeen years who takes part or performs non-schooling activities for either profit, family gain or pay.[footnoteRef:87] The history of child labour in Kenya dates back to the colonial era when African homes sent their children to work for the white settlers to gain income in order to pay the poll tax levied on them.[footnoteRef:88] The colonial government did not view the working and exploitation of children as an problem worthy of consideration.[footnoteRef:89] [87: Ministry of Finance and Planning of the Republic of Kenya, The 1998/99 Child Labour Report Kenya, September 2001, xii.] [88: Ministry of Finance and Planning of the Republic of Kenya, The 1998/99 Child Labour Report Kenya, September 2001, 1.] [89: Ndanyi S, ‘God Was With Us:’ Child Labor in Colonial Kenya, 1922-1950s’ 3 Journal of Retracting Africa 1, 2016, 8.] However, the situation began to change with the Master and Servant (Amendment) Ordinance of 1924 where the colonial government attempted to outline their labour policies, to which children were excluded.[footnoteRef:90] However, in 1926 the colonial government made the Custody of Children Ordinance which defined a child as a person below the age of sixteen.[footnoteRef:91] Further, in the Juvenile Ordinance, a child was defined to be a person below the age of fourteen years. These were attempts to reduce the minimum working age of a child in the colonial era. Finally, the Ordinance No. II of 1938 capped the minimum age limit to ten years, stating that no child below that age shall enter into a contract of service.[footnoteRef:92] The Employment of Servants Ordinance of 1938 equally prohibited the employment of juveniles in physically unsuitable capacities.[footnoteRef:93] [90: Ndanyi, ‘God Was With Us:’ Child Labor in Colonial Kenya, 1922-1950s,’ 8.] [91: Ndanyi, ‘God Was With Us:’ Child Labor in Colonial Kenya, 1922-1950s,’ 8.] [92: Section 28(3)(b), Ordinance No. II (1938).] [93: Ndanyi, ‘God Was With Us:’ Child Labor in Colonial Kenya, 1922-1950s,’ 9.] The Constitution of Kenya legislates for rights accorded to a child,[footnoteRef:94] including the protection from child labour.[footnoteRef:95] On matters legislation, the Employment Act goes to define employment in the context of a working child.[footnoteRef:96] It further provides for the minimum age of employment admission as thirteen,[footnoteRef:97] adopting the conditions of employment[footnoteRef:98] and further providing for the time restrictions,[footnoteRef:99] as captured in the CRC. [94: Article 53, Constitution of Kenya (2010).] [95: Article 53, Constitution of Kenya (2010).] [96: Section 52, Employment Act (2007).] [97: Section 56(1), Employment Act (2007).] [98: Section 56(2), Employment Act (2007).] [99: Section 59, Employment Act (2007).] The Children Act speaks to the protection from child labour, providing that every child shall be protected from any work that will interfere with any aspect of the child, the aspects found in the definition found in international understanding.[footnoteRef:100] It provides an elaborate definition of child labour,[footnoteRef:101] a commendable effort by the Laws of Kenya to curb the exploitation of children. [100: Section 10(1), Children Act, (2001).] [101: Section 10(5), Children Act, (2001).] Cases have been heard in the courts concerning child labour, and in some of them, the facts speak to the causes of child labour that have been highlighted above. For example, in EKG v CK & Another,[footnoteRef:102] the issue before the court was that of a child who had been living with the aunt who was the accused person, and she had been accused of denying the child the opportunity of going to school in order for the child to work as a domestic worker. The child was taken to the residence of the aunt because the parents could not afford the upkeep and schooling of the child. [102: (2017) eKLR.] Kenya has taken steps to ratify international laws such as the Minimum Age Convention on the 9 of April 1979 and the Worst Forms of Child Labour on the 7 of May 2001. These have been incorporated as national laws, making her a part of the war against child labour. 2.5 Conclusion From the analysis given above, child labour has heavily influenced the drafters into making a law that allows for the working of children, both on the international and national sphere. Even though the causes of it have been highlighted, the law still recognises that children may work to cater for their needs and that of their families, thus including it in legislation. Chapter Three: Best Interest Principle in the laws on working children in Kenya 3.1 Introduction As has been seen in Chapter Two, child labour played a big role in influencing the drafters of both international and national laws to legislate for the protection for the working child. The foundation for these laws tasked to protect the child at all costs, is the best interest principle. Both international and national laws have provisions that speak to this principle relating to children, and its significance. Laws enacted in favour of the principle for children are a visible movement from the common notion that children are to be seen and never heard, especially in the African home. For a long time, it was obvious that children were incapable of making decisions over and for themselves, as they are minors and have not attained the required maturity to make such decisions. Guardians, parents and other related persons all had an opinion of what was best for the child, and decisions were therefore made from this regard, with the subject matter, the child, participating as a silent observer. With the changing times and circumstances, there became a need for matters touching children to be governed by what is best suited for that child, and not the interests of the guardians, parents or any other concerned persons. This then led to the birth of the best interest principle, which evolved as a result of particular circumstances as will be discussed herein. This chapter also seeks to place the existing laws on working children against the principle and determine whether the existing laws live up to the expectations and requirements of the principle. Furthermore, it will identify any missing provisions and justify their importance using the argument of the principle. This will be done through the comparison of two legal systems, Kenya and the United Kingdom (UK). The UK will be used in this instance because it has elaborated and precise laws regarding working children, as will be discussed below. Another contributing factor is that the laws of Kenya have known to have heavily borrowed from the laws of Britain, thus a suitable comparison in order to spot the differences between the two legal systems. 3.2 What is the Best Interest Principle? There is no standard definition for this principle, however it has been defined as a principle that has the child as the primary consideration in decisions that affect or will have effects on the life of that child.[footnoteRef:103] It is a principle that is meant to place the child at the centre of decision-making, and have as much as possible, the opinions and ideas of the child taken into account.[footnoteRef:104] It is a principle that was developed to operate mainly in the spheres of family law, with specifics to matters divorce and child custody. [103: Article 3(1), UN Convention on the Rights of a Child, 30 July 1990, 1577 UNTS 147.] [104: Mahlobogwane M Frans, ‘Determining the Best Interests of the Child in Custody Battles: Should a Child’s voice be considered?’ Research Gate, 2010, 235 - https://www.researchgate.net/publication/332292058_DETERMINING_THE_BEST_INTERESTS_OF_THE_CHILD_IN_CUSTODY_BATTLES_SHOULD_A_CHILD'S_VOICE_BE_CONSIDERED on 2 July 2019.] To show the importance of this principle, it has been provided for in various international instruments and laws, that are also incorporated in national laws through ratification. The international laws that have provided for this principle are the CRC,[footnoteRef:105] the UN Declaration of the Rights of the Child[footnoteRef:106] and the ACRWC.[footnoteRef:107] [105: Article 3(1), UN Convention on the Rights of a Child, 30 July 1990, 1577 UNTS 147.] [106: Article 2, UN Declaration of the Rights of the Child, 20 November 1959, A/RES/1386(XIV).] [107: Article 19, African Charter on the Rights and Welfare of the Child, 11 July 1990, CAB/LEG/24.9/49.] It has been considered as a threefold concept by the United Nations Committee to the UN CRC.[footnoteRef:108] The first is that it is a substantive right and should be taken as a primary consideration.[footnoteRef:109] The second is that where a law is capable of having various interpretations, then the one that will favour greatly the BIP will be applicable.[footnoteRef:110] The third is that the decision-making process should involve looking into the impact of the decision to be made, whether negative or positive.[footnoteRef:111] [108: CRC General Comment No 14, Right of the child to have his or her best interests taken as a primary consideration, 29 May 2013, 4.] [109: CRC General Comment 14, 4.] [110: CRC General Comment 14, 4.] [111: CRC General Comment 14, 4.] 3.3 History of the Principle The initial operation of the principle was of a very limited nature. It was only used in cases of family law, in particular, during family disputes such as divorce, custody, maintenance, adoption and guardianship.[footnoteRef:112] In such disputes, the tradition was that the father was awarded custody rights over children, arguing that the father was in a better position to cater for their needs, and after all, the children came from his lineage,[footnoteRef:113] and he was the provider of the home. [112: Degol A & Dinku S, ‘Notes on the Principle “Best Interest of the Child”: Meaning, History and its Place under Ethiopian Law,’ Vol. 5, Mizan Law Review, Issue No. 2, 2011, 320.] [113: Alemu Kidist, ‘Post-divorce Decisions of Child Custody in Ethiopia in Light of the “Best Interest of the Child,”’ Unpublished, AAU, Faculty of Law, Ethiopia, 1997, 6.] However, this practise of awarding the father the custody began to change and was challenged by the ‘tender years doctrine.’[footnoteRef:114] This doctrine is based on the fact that a tender-aged child requires the care of their mother, as a result of the bond that is formed between a child and the mother during those tender years.[footnoteRef:115] Therefore, if a dispute arose on the custody of a child between divorcing or separating parents, more often than not the mother was awarded custody rights on the basis of the tender years doctrine. Ever since, though rebuttable, the mother has often been considered the primary caregiver to children, even in custody disputes. [114: Weitzman L. J, ‘The Divorce Revolution: The Unexpected Social and Economic Consequences for Women,’ Macmillan Publishing Group, 1987, 219. ] [115: Degol A & Dinku S, ‘Notes on the Principle “Best Interest of the Child”: Meaning, History and its place under Ethiopian Law,’ 322.] During the World War I (WWI), children were subjected to inhumane treatment such as slavery and some were recruited as child soldiers to fight in the war. These absurdities attracted the attention of the then League of Nations, who came together and drafted the 1924 Geneva Declaration of the Rights of the Child (Declaration of Geneva). It provides that, ‘mankind owes to the child the best it has to give, declare and accept it as their duty that, beyond and above all considerations of race, nationality or creed.’[footnoteRef:116] It was centred around the injustices that children at the time were subjected to, providing for normal development of a child,[footnoteRef:117] feeding and sheltering of a child,[footnoteRef:118] children being given priority in times of trouble,[footnoteRef:119] children earning a livelihood[footnoteRef:120] and development of talents.[footnoteRef:121] [116: Preamble, Geneva Declaration of the Rights of the Child, 26 September 1924, League of Nations.] [117: Article 1, Geneva Declaration of the Rights of the Child, 26 September 1924, League of Nations.] [118: Article 2, Geneva Declaration of the Rights of the Child, 26 September 1924, League of Nations.] [119: Article 3, Geneva Declaration of the Rights of the Child, 26 September 1924, League of Nations.] [120: Article 4, Geneva Declaration of the Rights of the Child, 26 September 1924, League of Nations.] [121: Article 5, Geneva Declaration of the Rights of the Child, 26 September 1924, League of Nations.] Over the centuries, the principle has developed, and its limited operations have been expanded. The principle is now suitable for not only custody and family law matters, but any other decision or potential decision that will affect the child, including the subject of this paper: the rights of working children, specifically right to income. 3.4 Best Interest Principle in the Kenyan Context Kenya ratified the UN CRC on the 30 July 1990 and the ACRWC on the 25 July 2000 respectively, thus their provisions on the principle are binding on Kenya in this regard. Further to that, our national laws have in place similar provisions. The Constitution provides for a specific application of rights,[footnoteRef:122] and has specific provisions on the child.[footnoteRef:123] Parliament went further to enact the Children Act of 2001 which was to provide for the necessary guidelines for parental responsibility, fostering, care and protection of children, among others.[footnoteRef:124] [122: Part 3, Constitution of Kenya (2010).] [123: Article 53(2), Constitution of Kenya (2010).] [124: Preamble, Children Act (2001).] Of importance is that the repealed Constitution of 2001 did not have any provisions on special application of rights for children, or any provisions for the rights of a child. Its presence in the present Constitution is a positive step to the realization that children are human beings that require special regulation and protection from both the international and national laws.[footnoteRef:125] [125: Mahlobogwane M Frans, ‘Determining the Best Interests of the Child in Custody Battles: Should a Child’s voice be considered?’ 234.] 3.5 Existing laws on working children The primary law that provides for the working child is the Employment Act of 2012. Other legislations that speak to employment in general such as the Industrial Training Act of 1959, Law of Contract Act of 1961, the Employment and Labour Relations Court of 2011 among others have no provisions on working children. This section will delve into the specific provisions of working children as provided by various Acts in Kenya. 3.5.1 Employment Act of 2007 Part VII of the Employment Act provides for the protection of the working child.[footnoteRef:126] It begins with the definition of employment in the context of a working child, citing working as an assistant,[footnoteRef:127] working for the gain of a person or an institution[footnoteRef:128] and in the presence of a contract for service,[footnoteRef:129] which is a deal for a work taken upon by anyone who is self-employed.[footnoteRef:130] In line with the Convention on the Worst Forms of Child Labour, there exists a section that prohibits the same,[footnoteRef:131] and provides an avenue to launch complaints to a labour or police officer in the event where one suspects that a child is being subjected to worst forms of child labour.[footnoteRef:132] Where the complaint is successful, then the labour officer has the power to cancel or prohibit contracts.[footnoteRef:133] [126: Part VII, Employment Act (2012).] [127: Section 52(a), Employment Act (2007).] [128: Section 52(b), Employment Act (2007).] [129: Section 52(c), Employment Act (2007).] [130: Black’s Law Dictionary, 9 ed.] [131: Section 53, Employment Act (2007).] [132: Section 54, Employment Act (2007).] [133: Section 55, Employment Act (2007).] The Act provides for the minimum age of working at thirteen. It sets out certain criteria that must be met for a child between the ages of thirteen and sixteen years to work.[footnoteRef:134] Additionally, and in line with international legislation, the Act provides for time restrictions for working children. It prohibits work between 6:30p.m. and 6:30a.m.[footnoteRef:135] The Act also requires an employer to keep a register of the child’s details such as age, date of birth, date of entry and leave of employment and other such particulars.[footnoteRef:136] It is noted that a working child may be required to undergo a medical examination by an authorised officer anytime in the course of his or her employment.[footnoteRef:137] The Act further provides for penalties for unlawful employment of a child[footnoteRef:138] and injury or death of a child.[footnoteRef:139] [134: Section 56, Employment Act (2007).] [135: Section 59(1), Employment Act (2007).] [136: Section 61, Employment Act (2007).] [137: Section 62, Employment Act (2007).] [138: Section 64, Employment Act (2007).] [139: Section 65, Employment Act (2007).] A provision of uttermost concern to this research is that employers who have working children between the ages of thirteen and sixteen years as their employees are prohibited from having written contracts with them.[footnoteRef:140] Oral contracts, as prescribed by the Employment Act, are harder to prove and because the agreements are not written down, heavy reliance is given to the human memory which is prone to error. Furthermore, in the case of Felister Nduku Nzaku v Joyce Wairimu Gitau, it was stated that ‘the practice of an employer failing to issue an employee with a written contract of employment is a matter abhorred by fair labour practice.’[footnoteRef:141] It further goes on to state that without a written contract of employment, the word of the employee has to be believed as the duty to issue such a document is on the employer.[footnoteRef:142] This highlights the importance of having a written contract not only for adult employees, but for children workers as well, in the effort of safeguarding their interest. [140: Section 57, Employment Act (2007).] [141: Paragraph 11, Felister Nduku Nzaku v Joyce Wairimu Gitau (2016) eKLR.] [142: Paragraph 11, Felister Nduku Nzaku v Joyce Wairimu Gitau (2016) eKLR.] 3.5.2 Children Act of 2001 The Act provides for when a child is in need of care and protection.[footnoteRef:143] Of importance is a child who has no parent or guardian,[footnoteRef:144] whose parent or guardian does not, or is unable/unfit to exercise proper care and guardianship[footnoteRef:145] and who is engaged in any work likely to harm his education, mental or moral development and health.[footnoteRef:146] The above children may be reported to the nearest authorised officer.[footnoteRef:147] If the working child’s rights are not ascertained in law and found in a written contract, then exploitation of these children is a high likelihood, which will result in the child needing care and protection. This was an issue in the case of B.A.A v Republic where the accused was charged with knowingly causing a school-going child of fourteen years to be in need of protection and care by making her work instead of going to school.[footnoteRef:148] [143: Section 119, Children Act (2001).] [144: Section 119(1)(a), Children Act (2001).] [145: Section 119(1)(e), Children Act (2001).] [146: Section 119(1)(o), Children Act (2001).] [147: Section 120(1), Children Act (2001).] [148: (2011) eKLR.] 3.6 ‘Missing’ provisions for working children in Kenya as seen in the laws of UK As was discussed in Chapter Two, child labour in the UK can be traced back to the British Industrial Revolution. As time has progressed, the laws on protecting working children in the UK have evolved and have taken an approach that places the education of the child as the core objective. The laws not only safeguard the rights of the child, but also accord to the child the ordinary working rights of an ordinary employee such as pay. These will be discussed below: i. Minimum age: part-time work exception and full-time work The minimum part-time working age in the UK is thirteen years, except children who work in the areas of television, theatre or modelling.[footnoteRef:149] Emphasis is placed on the part-time aspect as the law requires that all working children must go to school and working comes secondary to school. The law requires that such children who participate in the entertainment sector get a performance license.[footnoteRef:150] [149: Minimum ages children can work on https://www.gov.uk/child-employment accessed on 3 October 2019.] [150: Part-time work on https://www.gov.uk/child-employment accessed on 3 October 2019.] This license is given to children who are below school leaving age, which differs depending on residence, but the majority age is sixteen in England, Wales, Scotland and Northern Ireland.[footnoteRef:151] School leaving age can be understood to mean the age at which a child is allowed under law to stop attending compulsory legal education.[footnoteRef:152] However, it is a requirement that before a child turns eighteen, they must be in part-time training or education.[footnoteRef:153] Furthermore, aside from getting the license, this child must be supervised, by either a parent, teacher, or guardian, and if none of them are available for supervision, a chaperone shall be appointed.[footnoteRef:154] [151: School leaving age on https://www.gov.uk/know-when-you-can-leave-school accessed on 3 October 2019.] [152: Cambridge Dictionary, 4th ed. ] [153: Full-time work on https://www.gov.uk/child-employment accessed on 5 October 2019.] [154: Supervision for the child on https://www.gov.uk/child-employment/performance-licences-for-children accessed on 3 October 2019.] Once a child attains the school leaving age, then they are permitted to work full-time. However, the law requires that this child can only work for a maximum of 40 hours a week, which translates to 8 hours a day.[footnoteRef:155] At the age of sixteen, the child may be paid through PAYE and when the child turn eighteen, the adult employment rules and rights shall apply accordingly.[footnoteRef:156] All these conditions must be set out in both the license and the written contract provided for the child.[footnoteRef:157] [155: Full-time work on https://www.gov.uk/child-employment accessed on 5 October 2019.] [156: Full-time work on https://www.gov.uk/child-employment accessed on 5 October 2019.] [157: Full-time work on https://www.gov.uk/child-employment accessed on 5 October 2019.] These provisions lack in the Kenyan legislation on working children. There is no framework for children who work either part-time in the entertainment sector or full-time. This means that this sector goes unregulated, which leaves the child unprotected, which goes against the objective of the best interest principle. ii. Payment of working children The payment regime in the laws of UK provide that once a child has turned sixteen, with special emphasis on the ages between sixteen and seventeen years, the working child is entitled to at least £4.35 per hour.[footnoteRef:158] The laws are specific enough to state that if the child earns more than £118 a week, then the employer is mandated to other Pay As You Earn (PAYE) tasks such as deductions.[footnoteRef:159] Before they reach the age of sixteen, they will still be in the school-age and thus the minimum wage does not apply to them.[footnoteRef:160] [158: Once someone reaches 16 on https://www.gov.uk/child-employment/paying accessed on 3 October 2019.] [159: Once someone reaches 16 on https://www.gov.uk/child-employment/paying accessed on 3 October 2019.] [160: Children under 16 on https://www.gov.uk/child-employment/paying accessed on 3 October 2019.] If an employer is indeed paying the working child, then this payment must be recorded, and the child should appear in the running payroll of the business.[footnoteRef:161] For those under the age of sixteen, they only need to be recorded in the business’ payroll if the wages paid unto them exceed the personal allowance, which has been set at £12,500 at which the tax rate is 0%, and a schedule is provided for any amount that exceeds £12,500.[footnoteRef:162] [161: Once someone reaches 16 on https://www.gov.uk/child-employment/paying accessed on 3 October 2019.] [162: Income Tax rates and bands on https://www.gov.uk/income-tax-rates accessed on 3 October 2019.] In Kenya, there lacks legislation on the payment of a child. In the tax laws, a child’s income will be taxed by virtue of the income being accrued in or derived from Kenya.[footnoteRef:163] This provision only guarantees tax in Kenya, however there are no provisions on minimum pay or pay at all for a working child. However, as discussed in the second chapter, one reason that necessitates child labour is the desire to provide for themselves and their families,[footnoteRef:164] and this is only possible if they receive an income from their work. [163: Section 3(1), Income Tax Act (2018).] [164: International Labour Organization, Child Labour: A Textbook for University Students, 86.] iii. Working conditions The working conditions in the UK have been legislated to safeguard the right of the child to attend school and ensures that their attainment of education is not interfered with in any way by their working. For instance, the working child in the UK must have an employment permit from the department of education.[footnoteRef:165] This goes to show that the decision made for a child to work is not left to the family alone, but the local council of the area of residence of the child and the education department are also informed and have a stake in the working of this child as they are one of the custodians to the child’s interests. [165: Restrictions on child employment on https://www.gov.uk/child-employment/restrictions-on-child-employment accessed on 5 October 2019.] Furthermore, they have a provision that states that a child cannot work for more than four hours without having a break of at least an hour.[footnoteRef:166] The laws go further in providing for term time rules[footnoteRef:167] and school holiday rules.[footnoteRef:168] It also provides that businesses that wish to employ a school-aged child must obtain a child employment permit, without which they will not receive insurance against accidents involving the child.[footnoteRef:169] [166: Restrictions on child employment on https://www.gov.uk/child-employment/restrictions-on-child-employment accessed on 5 October 2019.] [167: Term time rules on https://www.gov.uk/child-employment/restrictions-on-child-employment accessed on 5 October 2019.] [168: School holiday rules on https://www.gov.uk/child-employment/restrictions-on-child-employment accessed on 5 October 2019.] [169: Local council rules for child employment permits on https://www.gov.uk/child-employment/local-council-rules-for-child-employment-permits accessed on 5 October 2019.] In Kenya, the only provisions on working children is the time restrictions, stating that a child cannot work between the hours of 6:30 pm and 6:30 am.[footnoteRef:170] Unlike the UK, the provisions of the Kenyan law are not structured around the child attending school or focusing on school. The laws appear to be silent on any permits needed by an employer, and this again leaves the child unprotected by the law. [170: Section 59(1), Employment Act (2012).] 3.7 Intervention of the BIP As discussed in Chapter Three, the BIP places the child as the primary consideration in decisions that affect or will affect his or her life.[footnoteRef:171] The principle is meant to ensure that the opinions and ideas of the child are considered when decisions regarding the child are made.[footnoteRef:172] Even as the laws progress to include the input of a child, who has often been viewed as lacking in maturity to make decisions concerning themselves, the BIP is applied to ascertain that the outcome sought is best suitable for the child.[footnoteRef:173] [171: Article 3(1), UN Convention on the Rights of a Child, 30 July 1990, 1577 UNTS 147.] [172: Mahlobogwane M Frans, ‘Determining the Best Interests of the Child in Custody Battles: Should a Child’s voice be considered?’ Research Gate, 2010, 235 - https://www.researchgate.net/publication/332292058_DETERMINING_THE_BEST_INTERESTS_OF_THE_CHILD_IN_CUSTODY_BATTLES_SHOULD_A_CHILD'S_VOICE_BE_CONSIDERED on 18 October 2019.] [173: Rachel Hodgkin et al, ‘Implementation for the Convention on the Rights of the Child,’ United Nations Children’s Fund, 2002, 40.] When the comparison is drawn between the existing laws of Kenya and the existing laws of the UK, one notices that the BIP is more prevalent in the laws of UK in comparison to those of Kenya. One of the key rights promoted in the laws of the UK is the right to education, which reflects in our own laws,[footnoteRef:174] but is not banked on in the laws of working children. [174: Article 53(1)(b), Constitution of Kenya (2010).] 3.8 Conclusion Since children are still considered to lack the maturity to make informed decisions over themselves, the BIP is applied to ensure that the outcome which is best suitable for the child is sought and attained.[footnoteRef:175] The principle has also introduced and required, in certain instances, children to voice their opinions in order to attain the best interest for themselves, a practise that was an absurdity in the earlier centuries. Despite its primary use in custody and maintenance cases, the principle has been used to protect the child from other occurrences such as slavery, and in the same breath has also provided for the basic needs of a child. This protection was not available in the past, as decisions were made for children on the basis of convenience of the parties involved and what made sense to the decision-makers, with no input from the child. Now, the child is considered a decision-maker, and this BIP ensures that the child comes first in each and every decision made, regardless of the circumstance. [175: Rachel Hodgkin et al, ‘Implementation for the Convention on the Rights of the Child,’ United Nations Children’s Fund, 2002, 40.] Kenya has taken positive steps in legislating provisions that would be in favour of the rights of the working child. However, the child’s interests may appear different from that of an adult employee in terms of age, expectation, working conditions, requirement of attaining education and certain job descriptions that they cannot work in. Consequently, in the light of these factors, different law regimes such as that of the UK have attempted to include all these factors and provide ultimate protection for the working child in law. Factors such as pay, specific working conditions and requirement of school should equally be included in the laws of Kenya, to ensure, for instance, that the child is receiving their wages and at the same time, this child is also pursuing education, among others. Chapter Four: Proceeds of Employment for Working Children in Kenya 4.1 Introduction As discussed in Chapter Three, all matters regarding a child should have the full force of the BIP behind it.[footnoteRef:176] This infers that, all laws legislated in favour of a child should have the principle as a foundation. Working children for a long time have remained unprotected by the law as they were seen as ‘invisible.’ This then led to exploitation and mistreatment of children, and the law came in place to rectify this situation as early as 1833, in the era of the British Industrial Revolution, through the enactment of the Factory Act.[footnoteRef:177] [176: N M M v J O W (2016) eKLR, para 53.] [177: 1833 Factory Act, United Kingdom. ] As it stands today, various laws such as the Minimum Age Convention have been legislated, both in the international and national fronts, regarding the working child and their rights. This chapter seeks to address the issue of proceeds of employment for a working child. It will do this by discussing the importance of the right of income and will further discuss how the law can provide for and protect the right to income for working children. 4.2 Position of the right to income in Kenya This right is protected in the Employment Act of 2007. It is first seen in the definition of an employee as a person employed for wages or a salary and includes an apprentice and indentured learner.[footnoteRef:178] Furthermore, the Employment Act contains an entire part on the protection of wages.[footnoteRef:179] It provides that an employer shall pay the entire amount of wages earned by an employee in respect of work done,[footnoteRef:180] and further stipulates on what day it is to be paid,[footnoteRef:181] disposals and recovery of wages and allowances.[footnoteRef:182] [178: Section 2, Employment Act (2007).] [179: Part IV, Employment Act (2007). ] [180: Section 17(1), Employment Act (2007).] [181: Section 17(2), Employment Act (2007).] [182: Section 17(3) – 17(10), Employment Act (2007).] The Act also provides for when wages or salaries are due,[footnoteRef:183] deduction of wages,[footnoteRef:184] what happens to the proceeds of employment upon the death of an employee,[footnoteRef:185] repayment of remuneration wrongfully withheld or deducted,[footnoteRef:186] among other provisions. Furthermore, another way in which the right to income is protected is through having a written contract. In a written contract, all the rights and duties that pertains to both the employer and the employee are present, and the right to income is included. This has been prohibited by law for the working child in Kenya.[footnoteRef:187] [183: Section 18, Employment Act (2007).] [184: Section 19, Employment Act (2007).] [185: Section 24, Employment Act (2007).] [186: Section 25, Employment Act (2007).] [187: Section 57, Employment Act (2007).] Taking a look into the part of the Employment Act that speaks to the protection of children, there are no provisions on protection of wages or the right of income for a working child. It is rather odd that the Act may provide for the particulars of prohibition of worst forms of child labour,[footnoteRef:188] time restrictions[footnoteRef:189] and other such particulars without providing for the proceeds of the employment that the Act has allowed them to engage in. [188: Section 53, Employment Act (2007).] [189: Section 59, Employment Act (2007).] The latest minimum wage increase was announced in 2018 and released on 8 January 2019.[footnoteRef:190] There are no specific provisions that relate to working children who may be working in the featured sectors of the labour market. [190: Regulation of Wages (General) (Amendment) Order, 2018.] 4.3 Significance of the right to income Income can be defined as the return in money from one’s business, labour, or capital invested.[footnoteRef:191] Earned income can be defined as the money a person earns from working at a job.[footnoteRef:192] Personal income can be defined as the total amount of earnings generated by a person during a certain period, generally referred to as wages or salary.[footnoteRef:193] The definitions described above have the common characteristic of earning the money by virtue of expending labour or effort over a period of time. [191: Black’s Law Dictionary, 9 ed.] [192: Black’s Law Dictionary, 9 ed.] [193: Black’s Law Dictionary, 9 ed.] Right to income is an essential part of the human being and his existence and leads to the improvement of their wellbeing and livelihood,[footnoteRef:194] and thus important. It is the most significant aspect for workers as it reflects the size and value of their work to themselves, their families and their community at large.[footnoteRef:195] [194: Kariuki Francis et al, Property Law, 1. ] [195: Gunawan H & Amalia R, ‘Wages and Employees Performance: The Quality of Work Life as Moderator’ 5 International Journal of Economics and Financial Issues Special Issue, 2015, 350.] 4.4 Inclusion of the right of income for working children The ILO drafted a Minimum Wage Policy Guide, with an aim to ensure a just and equitable share of the fruits of progress to all.[footnoteRef:196] It defines minimum wages as the minimum amount of remuneration that an employer is required to pay wage earners for the work performed during a given period, which cannot be reduced by collective agreement or an individual contract.[footnoteRef:197] [196: International Labour Organization, Minimum Wage Policy Guide, 2016, 2.] [197: International Labour Organization, Minimum Wage Policy Guide, 2016, 3.] The purpose of setting a minimum wage standard is to ensure that workers are not subjected to unduly low pay, to overcome poverty and reduce inequality.[footnoteRef:198] The importance of this to the right of income for a working child is that this Guide can be act as a starting point for the legislation of this right for working children. The following are suggestions made by the Guide to establish and promote a minimum wage system: [198: International Labour Organization, Minimum Wage Policy Guide, 2016, 3.] i. Tailor-made minimum wage system The guide acknowledges that it is possible to have more than one approach to a minimum wage system, which will be determined by the sector of activity, occupation, geographical region, among other such particulars.[footnoteRef:199] For the employment of young workers such as children, it is advised that having a high general minimum wage system may act as a barrier to their employment, and therefore suggests a tailor-made approach to such a category of persons.[footnoteRef:200] [199: International Labour Organization, Minimum Wage Policy Guide, 2016, 14.] [200: International Labour Organization, Minimum Wage Policy Guide, 2016, 16.] For young persons which include working children, it is possible to adopt a reduced minimum wage that is applicable to persons below a certain age, which are usually set to help with their entry into the labour market.[footnoteRef:201] The best way to set the minimum wage system is to have it prescribed by law and thus those provisions will have the force of law. The Guide provides that the government should take necessary steps to ensure that they have involved and consulted all the persons involved or who will be affected by the minimum wage system.[footnoteRef:202] In Kenya, these laws may be implemented following recommendations from the National Labour Board have made their findings on the best suitable approach regarding income for working children. [201: International Labour Organization, Minimum Wage Policy Guide, 2016, 21.] [202: International Labour Organization, Minimum Wage Policy Guide, 2016, 24.] ii. Cover needs of workers and families The Guide also provides that the minimum wages to be set must be with the aim of covering the needs of workers and their families, while also considering the economic factors of the time.[footnoteRef:203] This is particularly important for working children as one of the main reasons why they seek employment is to provide for themselves and their families. [203: International Labour Organization, Minimum Wage Policy Guide, 2016, 45.] iii. Enforcement of these laws When it comes to enforcement of this minimum wage system to be applicable to working children, the Guide provides for various implementation measures which include: information and awareness-raising campaigns, capacity building activities for employers’ and workers’ representatives, empowering workers to claim their rights through individual complaints as well as collective action, measures to formalize the informal economy, targeted labour inspections, sanctions that function as a deterrent to non-compliance and public employment programmes that pay minimum wages.[footnoteRef:204] This will involve a lot of ground work to ensure the laws are known to every person involved, for the protection of the working child. [204: International Labour Organization, Minimum Wage Policy Guide, 2016, 53.] iv. Empowerment of labour institutions In order to ensure effective function of the institutions that will be in charge of the implementation, the following measures have been suggested: arrangements for giving publicity to the minimum wage provisions in languages and dialects understood by workers who need protection, adapted where necessary to the needs of the illiterate persons, the employment of trained inspectors who have the necessary skill and knowledge to carry out their functions, adequate penalties for infringement, simplification of the provisions for ease of understanding and exercise, among others.[footnoteRef:205] [205: International Labour Organization, Minimum Wage Policy Guide, 2016, 54 – 55.] 4.5 Conclusion The reality of the world we live in is that children are now taking part in employment, as a result of child labour and circumstances. Just as adult employees have their employment centred on their right to income, the same should be accorded to working children, as the benefits adults derive from it are the same working children will derive from it. However, children require a special framework guaranteeing and protecting their right to income, as they are a vulnerable group of persons in society, up until they are able to be protected by the labour laws that are applicable to adults. Chapter Five: Recommendations and Conclusion 5.1 Introduction This paper sought to analyse the existing right of income for working children in Kenya as a result of Article 7 of the Minimum Age Convention and the particulars of attaining this analysis were discussed in Chapter One. It highlighted the problems and gaps in the law regulating working children in Kenya. This was seen from discussing the position of children in the society and their capacity to be admitted into employment and the shortfalls the law has in protecting their rights. Once the problems and gaps in the law were identified, the discussion on the rationale that the drafters used in coming up with both international and national legislation that included and protected working children was discussed in Chapter Two. This was seen to stem from child labour, a practise that was first seen in the infamous Industrial Revolution of Britain.[footnoteRef:206] The reality of children having to enter into employment to provide for themselves necessitated a legal framework that protects the rights of the working child, and this has been seen in various legislations that have been written to which Kenya has ratified. [206: Humphries Jane, ‘Childhood and Child Labour in the British Industrial Revolution,’ Economic History Review, 2012, 2.] These laws are regulating on the rights of the working child, and because children are a vulnerable and important part of the society, all matters concerning them should have the child as the primary consideration and all consequent decisions made should have the child at the centre of the decision and the decision-making process.[footnoteRef:207] This was the discussion in Chapter Three, highlighting the importance of the BIP in any legislation that involves the matters of a child. Once the reason behind admitting children into employment and the importance of the BIP were established, the existing laws were then compared to the principle to establish whether the laws are living up to the expectations of the principle in the protection of the working child, discussed in Chapter Three as well. [207: Mahlobogwane M Frans, ‘Determining the Best Interests of the Child in Custody Battles: Should a Child’s voice be considered?’ Research Gate, 2010, 235 - https://www.researchgate.net/publication/332292058_DETERMINING_THE_BEST_INTERESTS_OF_THE_CHILD_IN_CUSTODY_BATTLES_SHOULD_A_CHILD'S_VOICE_BE_CONSIDERED on 2 July 2019.] Chapter Four dealt with the issue of the right to income, and how it is specifically important for the working child, given the circumstances that make them enter into employment. Furthermore, the chapter dealt with how exactly to incorporate this right and its subsequent protection in law. It also discusses how to enforce the laws to be put in place, and how best to empower the labour institutions that will play a part in the protection of these laws. This chapter will seek to conclude the findings in this paper, and further give recommendations to the issues brought forth through the research conducted. 5.2 Findings From the discussion had in the previous chapters, the findings are that the existing legal framework on the protection of working children is a positive step taken in their protection. However, certain provisions like the restriction on having written contracts between an employer and an employee and omissions of detailed provisions on the proceeds of employment for the working child are part of the hindrances to the ultimate protection of the working child. 5.3 Recommendations The following recommendations have been proposed: i. An elaborate legislative framework on the protection of wages for the working child This will entail a separate and elaborate framework that will entail the minimum wages for the different classes of employment that children may engage themselves in. It will also entail the formulation of a tax regime that will enable these working children to contribute to the society through the payment of taxes. This way, the employers will have a clear set of guidelines as to what should be rendered to the child in their course of employment, and it will not be left to chance. ii. Amending the provisions of Section 57 of the Employment Act that prohibits written contracts for working children As discussed earlier, children are an integral part of the society and as such, all necessary steps should be in place to ensure they are protected. The prohibition on written contracts for a working child places the child at a more vulnerable position than they already are. The making it mandatory for all employers to have written contracts with children will make employers more accountable to their actions in case of a breach or violation, and the rights of the child will be tangible in the written contract, which in turn ensures more safety and protection for the working child. iii. Inclusion of the Ministry of Education to curb child labour and ensure that the right to an education is adhered to From the legislation discussed above, the work a child carries out should not be a hindrance to the child attaining an education, which is a right guaranteed in our very own Constitution of Kenya under Article 53. Borrowing from the UK, the Ministry of Education must also have a part to play in the regulation of working children in coming up with a mechanism that allows children to work, but not at the expense of their attainment of education. 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