How is to be a working woman in Kenya? Are labour laws ok? Is the gender pay gap small? By Irene Kendi

INTRODUCTION

Women rights are human rights. When women’s economic rights and economic participation are hindered, women become poor citizens. Gender norms hold women back from reaching their maximum potential and from contributing in a significant way to the growth of their country. Males typically control women’s participation in work due to discrimination by virtue of their sex. In Kenya, maternity has been used as an excuse to deny women appointments to certain top working positions. Some employers discriminate against women who are willing to create a family and prefer to hire women who already had children or women that claim not to have the intention to procreate.

Employment laws in Kenya are gender neutral in thus rendering women workers vulnerable to male chauvinism and other forms of discrimination.

The following sub topics are some of the issues that I have looked up to in my research from Wageindicator website and from the Collective Bargaining Agreements Database contained in the Training Modules in order to compare the Labour law affecting women workers in Kenya and other countries.

 

Sexual harassment

Sexual harassment is any kind of sexual behavior that makes the victim feel uncomfortable including using language (written or spoken) visual, material of sexual nature and showing physical behavior of sexual nature.

Sexual harassment at work places is prohibited by law and the employer is supposed to create a policy prohibiting sexual harassment at work place. However, Labour law does not propose any actual punishment in Kenya.

Employer must take measure to ensure that workers are not subjected to sexual harassment and take appropriate disciplinary measures against the person involved in sexual harassment.

In accordance with sexual offences act of 2006, any person being in a position of authority holding a public office persistently making sexual advances which are unwelcome is guilty of the offence of sexual harassment and is liable to imprisonment of at least three years or a fine of Ksh 100,000 or both. Employment act of the sexual offence act 2006.

The EU seems to be considerably more developed in tackling the issue: The European union director 2002/72 EC on equal treatment of men and women in employment, recognized sexual harassment as a form of discrimination in 2002. All members’ states were required to adopt it by 2008.

In South Africa sexual harassment in the work place is prohibited in under the labor law of South Africa sexual harassment is also prohibited under the protection Act NO. 17 of 2011.

Unfortunately, in some countries like Mali, Mauritania, Cameroon, Iran and Saudi Arabia there are no specific laws yet.

Job Protection

Regrettably, there is no provision in the Employment Act which restricts an employer from assigning harmful and dangerous works to a pregnant women worker. However, generally females are not allowed to work under grounded in mines except in certain cases as specified in the Act (employment Act 2007).

Breastfeeding

Kenyan Labour Law, does not show any provision regarding nursing breaks for mothers, but a maternal protection bill of 2015 was passed in parliament and it is waiting for the president signature to turn into law (convention 187 of ILO). The bill supports breastfeeding stations for lactating mothers at work place (e.g. Safaricom Company in Kenya has already implemented it).

Most of the east African Countries’ Collective Bargaining Agreements contained in Wageindicator Database do not have clauses containing the breastfeeding breaks or facilities for nursing mothers at work places.

There are some virtuous exceptions contained in the collective agreements of: Rwanda Tea production and Marketing Company and African plantations Kilimanjaro in Tanzania, Safaricom in Kenya, alias hotel north ridge, Benin telecoms Ghana, East Africa elevators.

According to the data available at the Wageinfdicator Database, the 85% of the collective agreements of the African countries does not have clauses supporting breastfeeding breaks.

The collective agreement database shows that only few countries have in their collective agreements clauses related to breastfeeding and facilities for nursing mothers at the work place. Hence, trade unions should step in and push all employers to implement policies that take into consideration this need in their CBA’s so that the nursing mothers can enjoy ample breaks to breastfeed their kids. This would also motivate women workers to perform conveniently and effectively and thus increasing productivity.    

Equal Pay

The constitution of Kenya recognizes the right to equal remunerations. The employment Act of 2007 requires every employer to ensure that men and women are paid equally for work of the same value.

In Africa the 49% of the collective agreements doesn’t contain this principle while in Europe almost 70% of CBA’S does contain clauses on equal pay for work of the same value.

This therefore shows that there is a lot to be done globally and especially in Africa to ensure that gender should not be an issue when it comes to equal pay for equal work, therefore, the law should be very clear that all employers should respect and apply this principle.

Maternity Leave

According to Kenyan Law, women workers are entitled to 3 months (91) calendar days of fully paid maternity leave on the birth of the child.

The worker must be given a written notice of at least 7 days prior to proceeding on maternity leave on a specific date to return to work therefore maternity leave can be extended with the consent of employer or a worker may proceed to sick leave or any other kind of leave with employers consent.

The best provision regarding maternity leave for an African country is held in an Ethiopian’s collective agreement where women workers are given six consecutive months of paid maternity leave (CBA by Sodo Christian hospital and Wondogenet hotel).

Most of east African countries’ collective agreements offer 13 weeks of fully paid maternity leave. The poorest provision about maternity leave in an African country is contained in an agreement signed in Uganda, with only 8-5 weeks of maternity leave.

In West African countries the best provision contained in a collective agreement is 14 weeks, offered by Niger, and lowest is 12 weeks offered in Ghana.

 

In southern Europe, the highest number of weeks of maternity leave (22) is contained in one agreement signed in Italy while the worst provision comes from a collective agreement signed in Spain with 16 weeks of maternity leave.

Kenya should borrow a leaf from the other countries and increase the maternity leave to at least sixteen weeks. This will give the mother a good bonding time with the infant before resuming to their work.

   

Conclusion

According to the findings of the research, there is need to continue conducting research on women workers and law in order to expose the constraints and practices that obviate women’s empowerment and advancement. The government should also pass legislation that has to do with laws protecting women which in turn should be implemented in the private sector. The same government should ensure that it monitors and enforces the same to make a difference.

 

 By Irene Kendi, project manager COTU Kenya