HRW Submits to UN on Economic, Social, Cultural Rights

We write in advance of the 77th session of the Committee on Economic, Social and Cultural Rights regarding Kenya's compliance with the International Covenant on Economic, Social and Cultural Rights. This submission includes information on freedom from violence and harassment at work, violence toward women during protests, and aligning economic reforms with human rights. This submission builds on Human Rights Watch's 2023 submission to the Committee's 72nd Pre-sessional Working Group.[1]

Freedom from Violence and Harassment at Work (articles 3 and 7)

Violence and harassment at work violates an individual's right to enjoy just and favorable conditions of work guaranteed by article 7 of the Covenant on Economic, Social, and Cultural Rights. Violence and harassment in the world of work causes long-term psychological, economic, and physical harm to individuals, undermining their full and equal participation in the economy and society.[2] Although violence and harassment at work affects everyone, violence is often gendered in the world of work and disproportionately impacts women and girls, a major obstacle to gender equality, sustainable development, peace, and justice.[3] Despite its prevalence, violence and harassment at work remains under-reported because of shame or a fear of retaliation.[4]

The ILO's Convention on Violence and Harassment at Work (ILO Convention No. 190 or C190) lays out international legal standards for preventing and responding to violence and harassment in the world of work.[5] It requires governments to ensure comprehensive national laws against harassment and violence at work- including prevention measures, complaints mechanisms, monitoring, enforcement, and support for survivors-and laws obligating employers to maintain workplace policies against violence and harassment. The treaty covers workers, trainees, former employees, job seekers, and job applicants, and applies to both informal and formal sectors.[6] As of January 2025, 47 countries have ratified C190, including ten countries in Africa.[7] Kenya voted in favor of C190 but has not yet ratified it.[8] Human Rights Watch welcomes the recent media reports that the Labour and Social Protection Cabinet has established a new unit to address issue of sexual harassment at work and will push for the ratification of both the ILO's Domestic Workers Convention (C189) and C190.[9]

Human Rights Watch acknowledges Kenya's statement that efforts are being made to develop a framework to collect gender disaggregated data on harassment at work as a constructive step.[10]

In the Kenyan legal framework, the 2007 Employment Act and 2006 Sexual Offences Act have provisions to address sexual harassment at work.[11],[12] Furthermore, C89 and C190 have been used to guide several Kenyan judicial decisions, which is a promising practice to ensure victim-survivors access.[13] Despite this, reports indicate that Kenya's legal framework does not have adequate definitions of violence and harassment at work that would effectively address the full scope of the issue.[14] Also, the laws [15] This is particularly true [16] they often fall outside the scope of labor regulations.[17]

ILO C190 extends protections to workers in the informal sector. In Kenya, 83.5% of the workforce is in the informal sector.[18] The current legal framework in Kenya does not adequately protect the rights of informal sector workers. They lack basic legal protections and face harassment, exploitation, and violence without access to adequate legal remedies.[19] For the past five years, trade unions, civil society, and activists have been calling on the Kenyan government to ratify C190 and ensure its effective implementation so that informal sector workers can have legal recourse when they are subjected to violence and harassment.[20] As mentioned in the Committee's list of issues in relation to the sixth periodic report of Kenya, this is also important for domestic workers where there is a lack of oversight in their places of work, which is often their employers' homes, heightening the risk of violence and harassment. The Kenyan government has not yet ratified the International Labour Organization's Domestic Workers Convention (C189) which would promote decent and just working standards for domestic workers.[21]

Human Rights Watch recommends that the Committee ask the government of Kenya:

• What is the government's timeline to ratify and implement ILO C190? How will the government ensure the provision of technical and financial support necessary for the ratification and implementation of C190?
• What specific measures has the national government taken to bridge the gap between its laws to address sexual harassment at work and the lack of effective implementation in practice?
• What is the government's timeline to collect gender-disaggregated data on harassment and violence at work? What specific steps has the government taken to develop a framework to collect this data? What steps has the government taken to ratify the International Labour Organization's C189 Domestic Workers Convention?

Human Rights Watch recommends that the Committee call on the government of Kenya to:

• Ratify ILO C190 and ensure its effective implementation so that no worker is subject to violence and harassment at work.
• Ratify and incorporate ILO C189 on domestic workers into national laws and policies.
• Recognize in law the rights of informal sector workers, including domestic workers, and ensure access to legal remedies for informal workers whose rights have been violated.

Violence Toward Women During Protests

Four witnesses told Human Rights Watch that the Nyando Social Justice Centre in Kisumu County caught fire on July 19, 2023, after police fired tear gas into the building, which exploded on the iron sheet structure while protests were ongoing.[22] Researchers visited the Centre on July 29, 2023, and observed the damage caused by the fire. The Centre housed a shelter for survivors of sexual and gender-based violence, community empowerment projects, and a center for the protection of human rights, which was completely destroyed by the fire.[23] The women and girls housed at the shelter were forced to seek temporary shelter within the community.[24]

Witnesses also indicated that the police beat individuals who were not part of the protests, including women and girls, while conducting illegal searches of their homes.

Aligning Economic Reforms with Human Rights

Human Rights Watch has highlighted the need for the Kenyan government to address the economic root causes of the nationwide protests which rocked the country in June and July 2024.[25] The since withdrawn Finance Bill 2024 - introduced in the context of an IMF program with Kenya which was approved in 2021 to support the country's response to the Covid-19 pandemic and global inflation - was expected to raise US$2.7 billion in additional revenues in the succeeding fiscal year, in part to meet IMF targets. The bill included several new tax provisions, such as removing exemptions from certain food items and a mobile money transfer tax, that would increase the cost of essential goods and services and fall heaviest on Kenyans with lower and middle incomes, and those facing structural discrimination including women.

The Kenyan government should consider alternative options to raise revenue progressively and increase public trust in government. For example, the government could introduce reforms to better enforce existing tax rules, address mismanagement and corruption, and increase taxation on the wealthiest. Taxes on industries or products that harm the environment should also be designed so that they do not undermine rights, such as by using the revenues raised to compensate for their effects on low and middle-income people.

Human Rights Watch recommends that the Committee call on the government of Kenya to:

• Work with the IMF to ensure that any programs they implement align with human rights standards, with a focus on progressive revenue generation and accountability over public funds.
• Conduct and publish human rights impact assessments for any proposed economic reforms, including on fiscal policy and public spending, to ensure that they best fulfill peoples' economic, social and cultural rights. They should pay special attention to any risks posed to women and economically marginalized groups. The assessments should be transparent, with public participation, and should meaningfully influence any measures ultimately enacted.