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A freedom Song Atieno washes dishes, Atieno plucks the chicken, Atieno gets up early, Beds her sacks down in the kitchen, Atieno eight years old, Atieno Yo. Since she is my sister’s child Atieno needs no pay, While she works my wife can sit Sewing every sunny day: With her earnings I support Atieno Yo. Atieno’s sly and jealous, Bad example to the kids Since she minds them, like a schoolgirl Wants their dresses, shoes and beads, Atieno ten years old, Atieno Yo. Now my wife has gone to study

Atieno is less free. Don’t I keep her, school my own ones, Pay the party, union fees, All for the progress: aren’t you grateful Atieno Yo? Visitors need much attention, All the more when I work at night. That girls spends too long at market, Who will teach her what is right? Atieno rising fourteen, Atieno Yo. Atieno’s had a bay So we know that she is bad. Fifty fifty it may live And repeat the life she had Ending in post-partum bleeding, Atieno Yo. CHAPTER ONE: CHILD DOMESTIC LABOUR IN KENYA 3 INTRODUCTION

Domestic work abuses the rights of children and consequently is an intolerable form of child labour. Unfortunately, it forms the largest employer of girls under sixteen years around the world. It is the most common and traditional form of a child labour, especially among girls because it is viewed as an essential part of the upbringing of a child. The majority of the child domestics are between twelve to seventeen [12-17] years old down to five [5] years. [1] ILO studies in the year 2000 indicate, there were 1,647,000 economically active children in Kenya.

They comprised of 782,000 girls and 865,000 boys aged between 10-14, representing 39% of all the children in this age group. [2]Plan international has estimated child domestic workers to be about 200,000 of the 1. 2 million domestic workers in Kenya[3]. Other studies estimate the prevalence of child domestic workers in Kenya to be 41. 3% of all children aged between 5-14 years, translating to about three million children[4]. Whereas domestic work is not per se an exploitative form of child labour, child labour, whether voluntary or involuntary is wrong.

This is because child work is beneficial to the child while child labour is exploitative. This is more so when there is debt bondage, trafficking of children, or where workers are physically restrained or where they are subjected to inhuman conditions[5]. Society often does not perceive the kind of work the children do as child labour. Since time immemorial children have always been used to run errands according to their ability. [6] Children could do what their parents did, and could often lend a hand to their relatives.

The work that children did was for the cultural socialization of the child, it was meant for the physical, social and mental development of the child, and it is what qualifies to be called as child work. On the other hand, socio-economic realities have translated child work to child labour, which is exploitative, as it prejudices the child’s physical, social, spiritual, and moral development. For instance, relatives bring children from the rural areas with the promise of educating them or employment and end up making them domestic workers.

The reasons for utilizing child workers and particularly in domestic work mainly include the children being greatly ignorant of their rights. Children generally require less attention than adult workers. They also take orders to perform menial work without complaining, they are also less likely to steal and be absent from work. [7] Most of the domestic workers perform all kinds of household chores including assisting in cooking, serving meals, cleaning, washing clothes, ironing, washing floors, picking children from school, farm work like herding and milking. 8]They also look after children, clean the children, and prepare them for school. They also clean the compound and weed gardens[9]. The children are paid meagre salaries and often do not receive the money directly, as it is remitted to their guardians. Remuneration is not pegged on any regulation and neither is any variation necessarily a function of the work done. They work for long hours, often being the first to wake and the last to sleep. Most have no days off, often the only time they have off is when some are allowed to accompany the host family to church one day of the week.

They rarely visit their friends and in fact, they would rather spend any free time resting or sleeping to rest from their odious jobs. [10]Worst of all they are commonly considered to be sexually available, as sexual availability is considered an aspect of domestic labour. They are often used as experiments for the male members of that family. This situation is compounded by the fact that they are subjected to violence. Even in cases where they are sexually abused, the women of the house think the child workers wooed their husbands.

They are beaten or threatened with loss of employment if they reveal their abusers. When the reasons for the subsistence of this practice are analysed, poverty emerges as the most important factor. This is inspite of some families who are poor being able to send their children to school. The other factor is that educational opportunities are unprofitable, limited and costly. [11]Other factors include population growth, rural urban migration, unplanned parenthood, imprisoned mothers hence leaving their children uncared for, sick parents, environmental hardship, and cultural stigma. [12]

The result of subjecting children to such conditions is that their physical, cognitive, and social development is greatly affected and these ramifications reverberate for a lifetime. Their most basic abilities of social interaction are hampered. [13] The international community has taken note of the inappropriateness of the situation of child domestic workers. International Labour Organization and International Programme on the Elimination of Child Labour [ILO-IPEC] has targeted child domestic work as an intolerable form of child labour as being contrary to human fundamental rights.

Various instruments have been enacted addressing the plight of child domestic workers, such as the 1989 United Nations Convention on the Rights of the Child and the 1990 African Charter on the Rights and Welfare of the Child, though none of the instruments specifically are devoted to prescribing standards applying to child domestic workers. However, standards in many other key areas for instance human rights apply to child domestic workers as well, contained in instruments such as the ILO Convention No 79 on Night work of Young Persons [Non Industrial Occupation] 1946. [14]

Kenya has recognized that child labour is harmful to the country’s long-term development prospects in terms of long-term productivity and development prospects. It has adopted policies and strategies to strengthen prevention and elimination of the practice, enhance the capacity of stakeholders and harmonize laws relating to child labour. [15] Despite the mechanisms that have been established, there are still a large number of children still involved in the practice, due to such factors as HIV AIDS pandemic which is leaving numerous orphans yet there is no effective institutional framework to address this situation.

This study will attempt why the situation continues unabated, to try to unravel the flaws in the legal framework in place and the social institutions and other programs in place and their effectiveness in dealing with the problem. It will also suggest appropriate steps to be taken. 1. 20 JUSTIFICATION OF THE STUDY Child labour is a hindrance to the long-term development and productivity of Kenya in terms of resource development. Further child labour is a hindrance to the attainment of the millennium development goals, especially the achieving of universal primary education by 2015 and the promotion of gender equality and women empowerment.

This is because the children are deprived the opportunity of going to school, the work reinforces traditional prejudices against women and the girl child that domestic work is women work. This study will cover the plight of child domestic workers in Kenya, why they are engaged in it, the type of work they engage in, circumstances and interventions that exist, and how effectively they address this practice. It will try to address the questions as to why the structures that exist do not seem to work. It will finally suggest a strategy for increasing the effectiveness of the response mechanism to child domestic work.

In doing this, the study will capture information that is very vital for public awareness on the plight of child domestic workers, as ignorance by members of the public is a fundamental bottleneck to realizing protection for children. Secondly, it will suggest a more effective mechanism for improving the existing response machinery and suggest new strategies to help curb this practice, realize developmental goals and in the long run attain the millennium development goals. 1. 30 STATEMENT OF THE PROBLEM

The legal and social structures in place are ill equipped to respond adequately and effectively to realities arising from contemporary socio economic conditions facing child domestic workers in Kenya. 1. 40 THEORETICAL FRAMEWORK In this area of child domestic workers, within the broad framework of child rights, there are various theories propounded by various scholars that inform the need for child protection and approaches used in child protection. The traditional view of child rights is called Caretakers theory. It was articulated by amongst others, the philosopher John Locke.

He argues that all humans were born infants who were weak, helpless and without knowledge and understanding. Parents were by the law of nature expected to nourish and educate the children that they had begotten. They also have the right to make decisions on behalf of their children. It is thought that the Convention on the Rights of the Child is an extension of this, as it purports to make provisions for the protection of the child from a background that the child is weak and defenceless and needs protection and care without according the child any role in deciding their destiny.

The second theory is called the Child Liberation Theory, promulgated by Richard Farson, John Holt, and Howard Cohen[16]. They propound that the children have the same rights as adults, including the right to choose for themselves. The theory holds that children have the right to decide on matters that directly affect them directly. They say children should have a right to express themselves freely, choose their friends and even the kind of education they get. This view is criticized that children lack adequate knowledge thus impossible to make choices that would not hurt them.

Other scholars supporting this view hold that the concept of childhood and children needs rethinking. They say there is need for socialization of childhood that will call attention to the neglected aspects of children. Children should not be seen as incompetent and weak, but should be taken more seriously by being extracted from the family order and their social position studied as a group[17]. A third view put forward is the liberal paternalism theory. Scholars like Michael Freeman propound it. The theory aims at maximizing the child’s independency and autonomy while justifying parental intervention under certain circumstances.

He suggests that parental intervention ought to be tested in terms of what might persons under the same positions approve[18] Kenyan law has been premised on the traditional theories, especially the legislations enacted earlier. However, there is a new trend toward the liberal paternalism theory especially by the Children Act No 8 of 2001 which prescribes that measures to be undertaken relating to children should bear in mind the child’s best interests. In consideration of the rights of children, regard may be given to the wishes of the child.

The law broadens the scope of responsibility for care of the children by establishing more institutions such as child welfare services and incorporates the community, placing them with the responsibility of addressing children needs. The trend now is to incorporate all stakeholders in addressing the plight of child labourers and in specific the child domestic workers. Each theory in its true pure form is not faultless, because, supporting the traditional view tends to neglect some aspects of childhood that need to be addressed. Recognition of the children as having rights connotes that they should be given more space for more expression.

Yet again, on the other hand we have to acknowledge that children lack enough knowledge to make choices that can benefit them. The choices made on their behalf often time are as a result of experience and research. Thus, the liberal paternalism view seems the compromise theory as it incorporates aspects of the earlier theories expressed. 1. 50 OBJECTIVES The broad objective of the research is to seek to determine the pervasiveness of child domestic work in Kenya and the adequacy of the responses to it. This broad objective is broken down into the specific objectives of: 1.

Examining the socio economic characteristics of child domestic work in Kenya 2. Reviewing the existing legal protection regime available to the child domestic worker and its adequacy 3. Suggesting a general framework that would improve the general conditions and promote the welfare of child domestic workers in Kenya through legislative intervention and multi-sectoral partnership. 1. 60 HYPOTHESIS 1. The legal framework in Kenya is grossly inadequate, and lacks dynamism to effectively address the plight of child domestic workers in Kenya. 2.

The social mechanisms in place lack the necessary capacity to effectively address the needs of child domestic workers in Kenya. 3. The closer co-operation all stakeholders including international partners and appreciation of the inroads made at the international level may help improve the situation of domestic workers in Kenya. 1. 70 RESEARCH QUESTIONS The following vital questions will guide this study. 1. What is the origin of child domestic work? 2. What legal and social factors are responsible for child domestic work in Kenya? 3. What are conditions and effects of child domestic work? 4.

What are the legal responsibilities of the government, community, civil society, and international community in addressing this practice? 5. Which legal and social mechanisms are in place, how effective are they and what improvements can be suggested? 1. 80 LITERATURE REVIEW M Omosa, E Ontita and H Ombati in the book, ‘Combating Child Labour In The Domestic Sector In East Africa: A Rapid Assessment Of The situation of child domestic workers in Kenya,’[19] reveal that there are more girls than boys involved in the child domestic work, even though they are exposed to the same socio-economic challenges.

Further, the most of the domestic workers originate from western Kenya and suggest that intervention measures should be laid at the source to curb recruiting. The majority of the children are aged between ten and fifteen [10-15]. The book states that working families employ most of these children. Most of the child domestic workers are employed through the assistance of friends and relatives. The reason why many employers prefer children is because they are more predisposed to be easily disciplined, can be paid little and can generally work longer between 12 to 19 hours.

They undertake all household tasks and farm work. The factors making the children to enter into child domestic work include poverty death of the parents, neglect, change of the family structure, peer pressure, gender imbalance, and rural urban linkage. The conditions faced by these children include low wages, eating leftovers, sleeping on the floor and in the kitchen, mistreatment, working hours and heavy workloads. The book looks at various interventions that have been undertaken at the international and national level.

It evaluates the various approaches that hence been undertaken including public awareness campaigns, withdrawal of children from work, placing them in non-formal education, vocational and skilled training being offered to the children, income generating activities, research and policy advocacy to inform stakeholders, incorporation in the school curriculum of child labour issues and direct intervention through advocacy.

The challenges given are funding shortfalls, the intractable combination between poverty and AIDS, conflicts at family levels, attitudes among rescued children, lack of precision amongst the laws, lack of co-ordination between various departments of the government and the general laxity and rivalry amongst various government departments. Whereas the general findings for the research are accepted, the book does not attempt to explain why for instance the majority of the child domestic workers are girls as compared to boys.

It further does not explain why the majority originates from western Kenya, especially bearing in mind the fact that poverty cuts across the whole country. In addition, it does explain the fact that much as poverty is a major factor causing children to enter into the practice, there are many families that are poor and yet their children are not involved in child domestic work. The research cannot be faulted per se since it is a situation analysis whose general findings the writer agrees with. G V Bueren edited the book “International Documents On Children,”[20]reviews global and regional instruments that deal with children.

The editor also reviews various public and private law treaties, recommendations and resolutions of global, regional and intergovernmental organizations relating to children. These include the League of Nations Declaration Of The Rights Of The Child, United Nations Declaration On The Right Of The Child 1959, the United Nations Convention On The Rights Of The Child 1989, and regional instruments such as Declaration On The Rights And Welfare Of The Child 1990, African Charter On The Rights And Welfare Of The Child 1990.

The instruments dealing with labour include the ILO convention No. 138 concerning Minimum Age for Admission to Employment 1973, Stockholm Declaration and Agenda for Action Against Sexual Exploitation of Children 1996. It also deals with ILO convention No. 78 on Medical Examination of Young Persons [Non Industrial Occupation] 1946, ILO convention No. 79 on the Night Work of Young Persons [Non Industrial Occupation] 1946, Supplementary Convection on the Abolition of Slavery, Slave Trade and Institutions and Practices Similar to Slavery 1956, which relate to child domestic work.

Since this work is largely descriptive, it is a useful guide to international instruments dealing with children and it helps trace the historical background and chronology of the developments in international circles. A G Mower Jr in his book “The Convention on the Rights of the Child: International Support For Children,[21]”analyses the 1989 Convention on the Rights of the Child. He states that the convention lays down formal and legal commitments of state parties to take measures to bring the lives of the children as close as possible to what is described in the convention.

He reviews the procedures and mechanisms established to monitor performance of state parties in light of their obligations. It also evaluates the significance of this convention. The first significance is that it is the first global instrument to recognize a child as having rights, which state parties are obliged to protect and ensure and the protection is given specifically for the child as such. It makes it possible for the child to assert the right sin judicial or administrative proceedings as an active subject of the rights.

The convention further expressed a new attitude on the part of the international community towards world children and their conditions seeing that the children have inherent rights. The third, convention further acts as a consolidator and inventor in the sense that it brings together in one instrument not only the rights of the child, but also the whole gamut of economic, social and cultural rights, besides civil and political rights.

It is innovative as it goes beyond existing standards and practices ranging from right to life, right to name and nationality, right of protection if refugees and protection from exploitation. It is also significant in that it is practical in nature. It tries to safeguard the present and future economic and social health of the worlds by protecting children who will be the future decision makers. The final significance is that it has an impact in the domestic and lives of its parties, as it can be cited in courts of the nations and can find nforcement through the domestic procedures. It can be used as pressure device child welfare advocates on the government and be a benchmark for measuring a government’s performance. The book gives the background of the convention as the nineteenth century when a child used to be viewed as property of the parents and human rights movement. It also gives a background to the ILO instruments, the United Nations which gave the drafting of the convention impetus, other treaties and documents such as those on slavery, discrimination against women, genocide and torture.

The convention sets the principle of best interests of the child as a basic principle and gives it explicit in many articles. The convention sets forth rights that are not absolute but are subject to qualifications, which at times allow state parties to flout the provisions of the convention using these provisions as an excuse. The writer does not address the impact of resource incapacities of the third world in realizing child rights.

The writer also makes the assumption that all countries adopt a monist approach to international law in implementing treaties, that is, when a country ratifies a convention, it automatically becomes binding. Other countries adopt a dualist approach to international law in their adoption of treaties, and therefore require the convention to be adopted in their legislatures, which may not make the direct enforcement of the convention in local courts a reality.

Deirde Fottrell edited “Revisiting Children’s Rights: 10 years of the UN Convention on The Rights Of The Child[22], two papers are of particular relevance. Deirde Fottrell’s “One Step Forward Two Steps Sideways? Assessing the First Decade of the Children’s Convention on the Rights of the Child,” Fottrell asserts that the convention was the first binding universal treaty dedicated solely to the protection and the promotion of children’s rights. It elevates the child to an independent rights holder and places children’s issue at the centre of the mainstream human rights agenda.

He states the background to this convention as the Declaration of the rights of the child and the 1970’s movement in the US for the empowerment of children in the political, social, and civil context. The book refers to the full range of political, economic, social and cultural rights in the convention and the problems that such a range cause to enforcement. It introduces new rights such as the right to identity. On the other hand, the book criticizes the implementation as weak as it requires self-assessment by the state parties and submission of reports by the state parties.

The convention further fails to extend the rights of the child soldiers and the girl child as it leaves the minimum age of a child at 15, which provision is in contravention of the article 32 that prohibits child labour if it endangers the child for children of fewer than 18 years. Further, it has lukewarm provisions on the rights of the child and it is silent on measures to be regarded specific difficulties of girls in non-western countries.

The second paper that is of particular relevant is Maggie Black’s “Child Domestic Workers: Slaves, Foster Children or Underage Employees, “she states that since time immemorial, children have used to help about the house, as has been captured in folk literature such as Cinderella. She alludes to the difficulties that children in domestic work face such as working around the clock, eating scraps, leftovers, sleeping in the kitchen. She says the culture is so deeply entrenched by the systems of social hierarchy and entrenched attitudes of social inferiority.

Child domestic work is such a normal thing that it could go almost unnoticed hence it’s invisible. Gathering information on the issue is difficult due to the nature of this employment. The children work behind closed doors and are very difficult to reach. Besides, domestic work is unregistered and not part of the employment statistics. Hiring is informal with the aid of relatives, who discuss the terms of employment with the employers alone, in the absence of the child workers. Most of employers are relatives who do not even classify the work done as domestic work. They think the domestic workers are helping.

She ascribes it to rising cases of death of parents, poverty, AIDS, cultural attitudes that children are being prepared for marriage. It is at time indistinguishable from slavery. Some laws of some countries condemn it, yet domestic work continues despite being condemned, ignored, or unenforceable. It is child work that has become more commercialised giving rise to exploitative conditions. She advocates that we should not engage in blanket condemnation of the practice, and it is necessary to enlist the support of the child employers who most are respectable members of society to bring about attitudinal change.

The role of law is limited as this practice is often beyond the reach of the law though law has its role. Whereas I agree with the conditions of the child workers as cited, she cites social hierarchy and entrenched attitudes about social inferiority as what entrenches the culture, that may be true to an extent, but not entirely especially in Africa and Kenya, where the children are made to work not because thy are thought of as inferior, but because the families think they are helping the child to be socialized, or that the child is helping her family in their financial burdens or that it is a way of solving the problem of abandoned children.

It could be true that it is difficult to collect information, but I would think that the problem is partly compounded by lack of mechanism at the local levels. Community inspection officers who would know what is happening at the community level are lacking, and lack of other proper mechanisms and the will to address the plight of child domestic workers by the agencies of the government concerned with it. There is also duplication, rivalry, and lack of coordination by these agencies or simply lack of resources to do it. She further says that these workers are not registered and do not form part of the employment statistic.

This is true in part, workers may not be registered and may not form part of employment statistic, yet in Kenya we have the Kenya Union of Domestic Hotel and Educational Institutes Workers Association under which domestic workers are registered. Emily Kigume in her dissertation on “Child Employment: A critical analysis of the Kenyan system,”[23] states that child employment is a matter of international concern. In Kenya, she traces the origin to pre-colonial times when child work used to be part of the cultural socialization process and to evelop the child physically, socially and psychologically. She states that this work was not exploitative hence; children did not need to be protected or to be removed from such work. She says in the colonial period, colonialists introduced a capitalistic mode of resource distribution, which resulted in child labour especially since the homes abandoned by the parents who went to work had to be led by children who had to replace them even in labour, and the children who were employed by the colonialists themselves.

She states that in the post colonial period child employment declined due to the government initiatives to combat ignorance, disease, and poverty. She ascribes poverty, cultural practices, AIDS, and competition as the sociological causes of child labour. She further looks at the international and national responses to child labour including the international treaties and national responses comprising of the various legislations enacted, and also the enforcement mechanisms under them, like the courts, and trade unions.

She recommends government to inform and educate society on dangers of child exploitation. She further advocates the provision of policy and administrative framework and a comprehensive framework of national action and commitment of funds, a more aggressive approach by trade unions and employers stopping to employ children. It is not a fact that children employment reduced in the past colonial era as it is thought that records in some of the years were not kept regard child labour. She advocates employers to stop employing children.

In the society we live today, this may not be possible and practicable because of the causes and motivational factors that make children to be employed. It would require the complete elimination of the root causes, which for now is not feasible. The Ministry Of Home Affairs And National Heritage: Department of Children Services’ National Directory of NGOs dealing with Child Labour,[24]”is a research on Non Governmental Organizations [NGOs] from all over the country dealing with child labour. It reveals that 28% of the NGOs studied deal with child domestic work.

Most of the NGOs are concentrated in urban areas even though some have rural programmes. The major sources of funding are contributions, followed by grants and a very small proportion by investments. Volunteer staff, materials, and sponsorship from well-wishers supplement these. The main area of focus for these NGOs is rehabilitation of the children involved, followed by advocacy and research. Most of the children they deal with are identified by the NGOs, others are referred, and small proportions go on their own.

The NGOs reported that the most common difficulties faced are low wages, harassment and long working hours respectively. Most of the NGOs recommended that most important measures that should be taken in the provision of vocational training, taking the children back to school feeding programs, educating parents, financial help for the children and for long term measures, sensitising parents, children and leaders on the negative effects of child labour, stepping up enforcement of the law and compulsory primary education in that order.

ILO’s ‘Advancing The Global Campaign Against Child Labour: Progress Made And Future Action,’ [25]various countries submitted reports on the progress made in their countries. This included Tanzania, which was “Awareness Raising And Social Mobilization to Prevent Domestic Servitude,” submitted by Vicky kanyoka. In the report, child domestic work was attributed to poverty, large families and limited access to basic education. That 40-50% of the workers was working in hazardous conditions in major urban centres.

The ILO and the Conservation, Hotels, Domestic and Allied workers Union [CHODAW] aimed at addressing children and families in the village through increasing the capacity to identify, monitor and prevent child recruitment, case of community awareness raising and social mobilization to sensitise village government officials, schoolteachers, women groups and religious leaders on the negative consequences of domestic labour. They utilized radio programmes, community seminars, newspapers, brochures, public meetings, child labour committees, provision of entrepreneurial skills to parents, and helping them start enterprises.

They also run a revolving fund governed by village governments and child labour committees in the village. Damiano K Manda’s “Costs and Benefits of Eliminating Child Labour in Kenya,”[26] He states that the policy adopted by the government recognizes that child labour is harmful to the country’s long-term development and productivity prospects. The analysis recognizes the need for the government in its policies to address the root causes of child labour and put into operation the convention on the rights of the child, empower families of the victims, support NGOs and other development parties.

It recognizes that the policy in place aims at strengthening preventive strategies towards elimination of child labour, enhance capacities of stakeholders, tap potential resource mobilization, review and harmonize laws on child labour, and incorporate child labour issues into national socio economic programmes. This study shows the strategies that have been adopted by the government, which in turn raises the fundamental question of how they are being implemented, and how effective they have proved. It also suggests improvements in the scope the approach adopted by the government.

The Government of Kenya’s “1998/99 Child Labour Reports[27],”reveals statistics about working children. Fifty three per cent of all working children are boys, who number about 639,648, while girls who form forty seven per cent were 556,906. Sixty two per cent of these children are aged between 10-14 years. Ten point six per cent of these girls worked in the domestic service sector while boys were three point two per cent. The most common complainant among the child labourers was the exploitatively low wages and hard work. These among much other literature will inform this study. . 90 METHODOLOGY The information sought in this study on the origin of child domestic work in Kenya, attitudes, causes, and conditions of the work, laws, and other programs in place to address. Due to the nature of the information required and the limited resources at this level, the study will primarily rely on secondary material in the form of treaties, the constitution, case law, reports of studies undertaken, statistics collected by various bodies, journals, books, conference papers, the internet, newspaper articles, magazine articles.

The study will be descriptive, analytical, and prescriptive in handling the various issues addressed within it. 1. 91 CHAPTER BREAKDOWN 1. 910 CHAPTER ONE: CHILD DOMESTIC LABOUR IN KENYA. The chapter lays the general background informing the study of child domestic labour in Kenya. The chapter also gives the justification for undertaking the study. The statement of the problem and the theories informing the study of child domestic workers are also given in the chapter. In addition, it outlines the objectives and the hypothesis on which the study is premised.

The literature review gives an overview of the situation of the children, the existing instruments and the measures for intervention. Finally, outlines the methodology to be used in undertaking the study and the chapter breakdown. 1. 911 CHAPTER TWO: ANALYSIS OF CHILD DOMESTIC LABOUR IN KENYA In the chapter is a consideration the distinction between child work and child labour. Further, the paper reviews the socio-economic factors that push children into and retain them in domestic labour. The chapter examines the reasons why employers prefer children in domestic labour to adults.

In addition, there is an analysis in the types of work that children engage in and the conditions that they commonly face in the domestic labour. Finally, the chapter looks at the consequences of child domestic labour as a basis for the need for the argument for intervention. 1. 912 CHAPTER THREE: INTERVENTIONS AGAINST CHILD DOMESTIC LABOUR IN KENYA This chapter delves into the various intervention measures that exist to address this practice of child domestic labourers. It looks at the various international and regional instruments that have a bearing on child domestic labourers, and the protection that they offer.

They include both those that Kenya has ratified and those that it has not. The chapter briefly points out to the relevant provisions touching on child labour, and the states responsibilities. The chapter then proceeds to examine Kenyan legislative framework touching on child labour. The chapter describes guidelines contained in the policies that have a direct impact on child domestic labour, and identifies the loopholes in the policies. There is further an analysis of the provisions of the laws and regulations setting the standards that apply to these children labourers. 1. 93 CHAPTER FOUR: ENFORCEMENT AND RESPONSE MECHANISMS The chapter also looks at the enforcement mechanisms under the law for protecting the rights of the children. It looks at government institutions and officials charged with the duty of protecting child domestic labourers. It further looks at non-governmental institutions and their responses. It finally closes with bottlenecks that have hindered effective enforcement. Finally, the chapter describes the responses by other stakeholder institutions in the form of their aims, strategies, activities and main challenges, before closing with a conclusion. . 913 CHAPTER FIVE: CONCLUSIONS AND RECOMMENDATIONS 4. 1 Reforms and Recommendations 4. 2 Conclusion 2. 0 CHAPTER TWO: ANALYSIS OF CHILD DOMESTIC WORK IN KENYA. This chapter illuminates the plight of child domestic workers in Kenya. The paper will examine the concepts of child work as distinguished from child labour. It will also endevour to explain why child work is not considered harmful to the welfare of children while child labour is prohibited. Further, the chapter will examine the socio-economic causes of child domestic work.

It will highlight the factors that lead children into child domestic work and reasons for preference of child domestic workers. In addition, it will examine the types of work that child domestic workers undertake and conditions of work that most of these children are subjected to. Finally, it will state the effects of child domestic work in the lives of the children workers. 2. 10 CHILD WORK AND CHILD LABOUR 2. 11 Child Work Child labour is divided into dangerous and exploitative work on the one hand and child work.

Child work, also called light work or beneficial work, is defined as that which promotes or stimulates a child’s integral development in physical, cognitive, and social aspects without interfering in his or her scholastic or recreational ability or rest. It contributes to a child’s socialization. This it does by offering them an opportunity to carry out certain tasks that provide them with feelings of competence and independency that are fundamental to the proper development of their self-esteem and self-concept. [28] Child work is all that work that all of us do to prepare us for future roles.

It is part of socialization[29]. In the African society, it was a tradition for children to perform family errands according to their ability. Girls would ape the female relatives while boys would imitate their male relatives. Children would lend a hand to their relatives who in turn ensured that social expectations and norms regarding work were strictly adhered to. The society ensured that children acquired necessary skills that they needed for adulthood, as these would enable them to discharge their future roles more efficiently. They would for instance learn good agricultural practices and good animal husbandry practices.

Some would be apprenticed with skilled blacksmiths, medicine men and other skilled persons in that community. Females would learn future roles as mothers and wives on how to take care of the husbands and their children and most importantly the role of women in that particular community. Without this kind off work, adult roles would be meaningless to the children[30]. This form of work also enhanced the health of the children and their psychosocial development. In England from the earliest times children always played an important role in the economic life of the family.

They used to work alongside their parents at whatever tasks they were capable of doing. In the late sixteenth century, children who were orphaned through death of their parents, or those affected by poverty became the responsibility of the church parish in which they lived. These children could be apprenticed to the local craftsmen or alternatively in special workshops where they learned a trade. This situation was to change with the advent of industrialization, which resulted in use of children in slave labour[31]. 2. 12 Child Labour

It has been defined as work that children do to earn a living, which is not only exploitative but also abusive as it infringes on some of the rights of the children[32]. It is this kind of work that is commonly referred to as dangerous and exploitative work[33], which represents a clear violation of the rights of the child. It includes all those harmful or abusive forms of work that interfere with a child‘s development due to the activities that the work entails or conditions under which the work is done. Dangerous and exploitative work has the following characteristics: ? It is carried out at too early an age The working day is excessively long ? It is carried out in inadequate/hazardous and dangerous conditions ? It is not sufficiently well paying ? It involves excessive responsibility ? It undermines a child’s dignity and self esteem ILO has defined child labour as that which due to the nature or conditions under which it is carried out, may be dangerous to the health, security or morality of minors. [34] Child labour is seen to encompass both paid and unpaid work and it relates to activities that inhibit the physical, psychological, social, and moral development of the children.

Child domestic workers are deprived of the opportunity for schooling and to be children. This deprivation is harmful to the long-term development and to industrialization prospects in terms of long-term productivity. This doesn’t extend to light work. Light work does not affect attendance of the children at school nor does it reduce their capacity to benefit from the instruction received. The key element determining whether labour is detrimental is the fact that it affects the optimum development of children physically, cognitively, or socially. 35]This distinction between child work and child labour is necessary because it will help in the designation of specific and appropriate intervention measures for each situation, to promote safe child work and regulate or prohibit child labour. Section 10[5] of the Children Act No 8 of 2001 provides that child labour refers to any situation where a child provides labour in exchange of payment. It includes any situation where a child provides labour as an assistant to any person and his labour is taken to be the labour of the other person for purposes of payment.

It also includes any situation where any individual or institution uses a child’s labour for gain, whether or not the child benefits directly or indirectly. It further covers any situation where there is in existence a contract for services where the party providing the services is a child, whether that person using the services does so directly or by an agent. Domestic work on the other hand has been defined in the Regulation of Wages [Domestic servants Wages council Establishment] Order under the Regulations of wages and Conditions of employment Act CAP 229, which are primarily in urban centres.

It is this regulation that defines domestic servants as ‘any person employed wholly or partly in any private household or part of a private household in any of the following capacities, namely cook, house servant (including bedroom and kitchen servant), waiter, butler, children’s nurse, valet, footman, chauffeur, bar attendant, groom, gardener, garden labourer, washerman or watchman[36]. ’In this paper, we will confine ourselves to the activities covered by the above definition that are carried in the private household.

The ILO IPEC has categorized child domestic work as an intolerable form of child labour. This is because it is contrary to human rights. Children often have to work to pay debts their parents incurred, or they work without pay besides being subjected to abuse. They undertake activities that expose them to grave safety and health hazards such as complex tasks of caring for children almost their own size and perform tasks under hazardous working conditions. The working environment often involves violence and sexual harassment.

They work in isolation, for excessively long hours including at night. Worst of all, the children involved are usually very young. [37] 2. 20 LEGAL AND SOCIAL-ECONOMIC CAUSES OF CHILD DOMESTIC WORK IN KENYA Most of the children enter into domestic work out of compulsion by other persons including parents, siblings, or relatives. Very few enter on their own volition. Consequently, the circumstances that cause children to enter into domestic work are wide and varied. They include the following: 2. 21 Social economic causes a) Socio-economic needs of the family

Africa has experienced a decline in the economic production as a result of many things. These include drought, conflicts in certain areas, and large external debts, which have necessitated structural adjustment programmes, which have resulted in retrenchment. [38] When this is combined with poverty and an economy that is unable to create jobs to provide sustainable employment for all the economically active Kenyans, the Kenyans have to seek all the options of meeting their household budgets, including selling child labour.

The economic situation compounds the problems of parents who are already struggling to keep the children in school. It increases school dropouts and consequently illiteracy. Parents remove their children from school and send them to work for wages to improve the family income. More than half the population lives below the poverty line. A majority of Kenyan poor live in the rural areas and have little access to land, and other productive resources, physical goods and income. This situation results in individual and group deprivation, vulnerability and powerlessness. 39] Families unable to find shelter, clothing medical attention and education for their children find it easy to push their children to domestic work. They hope that the children’s needs will be provided for or the children working can help support their siblings. The argument is that at least the child domestic workers would get shelter, food, and medical care and chip in to support the family resources with their earnings. Thus, it is often the case that the wages are paid directly to the workers’ parents or guardians.

Since these parents have little money, they simply want to guarantee that their children would be given the basic essentials such as food. They believe the host family’s scraps may provide the best hopes for the child’s nutritional needs. [40]There is a strong connection between poverty and the entry of children into paid work. [41] This is further evidenced by the children from poor families who move to find jobs, or live away from their immediate families for the sole purpose of gaining access to food or shelter. Population Growth

Where families are too large to maintain, children are seldom satisfied in terms of their needs. The large family’s resources are overwhelmed and thus often the children are given to relatives to ‘stay’ with them. [42] The work that they do is little valued. [43]Most of them do not consider the kind of work they do as domestic work or even work at all, as they will often tell you they are lending a hand to a relative or a neighbour who will assist them get good jobs. Most of them are made to think that they are the beneficiaries of the arrangement since they get food, stay in better houses in urban centres.

Most of them are wooed with promises of being helped to find jobs in the urban centres. Death of Parents Death of one or both parents has been a very common family tragedy in Africa. Where children are orphaned, and where this is combined with poverty, it is common to send the children orphaned to live with relatives and friends in their households. This situation is further convoluted by the HIV AIDS pandemic situation in Kenya. This is often justified on grounds that they will be prepared for future roles as mothers and wives if it is girls.

Where both parents abandon the children, the children are forced to rely wholly on the employees. [44] Death of parents forces many of the children especially the eldest to seek other ways of providing for their siblings. [45] Domestic labour offers an attractive alternative because there is sufficient demand and job requirements are fairly subjective. Such children move into domestic work to avoid destitution. Some of them are not paid since they are ‘staying’. Some of these children are victims of the relatives who want to annex their assets left by their parents upon demise.

Thus, the relatives quickly encourage and even find placement for these children as domestic workers Education The other causes that exist include deteriorating standards in educational institutions, and the inability of the government to carter for all its children in schools with decent education. [46]It is noted that even with the introduction of free primary education, poor and orphaned children who cannot afford school uniform have declined to utilize this opportunity. Besides, the children are required to purchase books and materials that are not provided under the free primary education scheme. 47] Perhaps they need to be supplied with the basic essentials of school and lunch plus the school uniform as part of the government provisions. The government policy in education of cost sharing is a heavy burden on parents. [48] This comes in the form of the many levies imposed on parents, which often time are unplanned for and are very frequent. Several textbooks for every subject, school uniform, school development fund, additional costs of hiring teachers by the school makes the cost of education to be unattainable to many parents.

Children consequently have to drop out of school to work to supplement the household budget. Where we have a deficient primary school system, which is too expensive, and there are inadequate places, a harsh and unattractive environment for learning, it is bound to cause frequent drops from school. Children who drop usually take up domestic work as the available option. Further there are limited and costly post-primary opportunities for these children. b) Rural-Urban Migration The migration of people from rural to urban areas in search of employment is a common occurrence in Kenya. 49] Most of the migrants are male, leaving behind women and children who have to take up what were formerly male roles. The women often become dependant on child labour, which in many cases forces the children to drop out of school. Other families migrate to towns wholesomely; where they face new difficulties . The uncertain situations they face may force them to send their children to work to supplement family income. This situation is exacerbated by the prevailing high unemployment rates. This is because urbanization seems to support the need for domestic workers.

Relatives who are living in urban areas are responsible for introducing many of the children involved in domestic work in urban areas into the practice. c) Parental Negligence Parental negligence is one of the reasons why children enter into child domestic work. [50] When personal needs are not met at home, children are forced to seek employment and thus domestic work presents itself as the most attractive, as it easy to enter. Some of these parents turn to their children as a source of income. Such negligence is seen in terms of parental over indulgence in alcohol, desertion, and general laxity.

The other aspects of these are cruelty and failure to guide these children accordingly, what can be called physical and emotional abuse. d) Changing family structure The traditional family structure in traditional African societies gave the community a responsibility to care for the children communally. [51] Children belonged to the whole community. The extended family also took an active role in caring for the children of the family. The family system has however broken and hence no assistance is accorded to orphaned and destitute children. Now children are employed for work.

Reduced control of the children by parents and elders has been worsened by external influences, which often draw children to domestic child work. e) Peer pressure Many of the children employed in child domestic work are introduced into it by their friends. [52] This peer influence operates at different levels. Child workers may be attracted by what they perceive as the enhanced status of their peers who are engaged in the practice. On the other hand, some of this children seek the assistance of the children working, who then advice them and secure for them similar placement.

At this point, it is very easy for these children to leave school. This is further compounded by the seeming better lifestyle led by their friends, the possibility of earning their own money and the ability to buy their wishes to their heart’s content. Some parents even force their children to join the labour market following knowledge of other children who are employed and making remittances to their families, especially when they are limited possibilities for post primary education. f) Gender Imbalance

This is a result of the cultural prejudices that exist and the general attitudes that child domestic work is part of the normal socialization process necessary for preparing children for future roles. Such labour is considered an integral part of the household labour, and is never considered as child abuse. A girl’s competence in domestic work is perceived an advantage when she plans to get married, as men consider such competence a good quality in a marriage partner. Some of the children in domestic work, especially girls, end up in the practice due failure to attend school resulting from parental preference for the boy child.

In situations where resources are inadequate to support the education of both sons and daughters, sons are preferred over daughters. Girls are actually sent to early employment to assist parents pay fees. Some girls are forced to take up employment to be able to provide for their own children. For such child mothers, employment in the domestic sector is easy to find and convenient to keep. In a study carried out on child labour in the year 1988 and 1989, the flowing reasons emerged as the most common reasons as a summary of why children work. REASONS |% OF hOUSEHOLDS | |To Augment household income | 27. 3 | |Help in Family business | 30. 5 | |Child to be self reliant | 4. 8 | |Education not suitable | 0. | |Other | 35. 9 | |Not stated | 1. 2 | |TOTAL |100. 0 | SOURCE: Government of Kenya [2001b] Child Labour reports 1988/1989. 2. 30 REASONS FOR PREFERENCE OF CHILD DOMESTIC WORKERS Children are preferred to perform child domestic work.

The employers’ attraction for child workers usually rests with factors such as low wages, the need for skilled labour, arguments such as nimble fingers as children have small appendages needed to perform intricate work[53]. One of the main underlying rationales for use of children may be that children are greatly ignorant of their rights and generally require less attention than adult workers. A child is more likely to take orders and perform menial tasks without complaining. Further, they are less likely to steal and are less likely to be absent from work. They are more tolerant to conditions that adults would not tolerate.

Further, a child may feel more obligated to perform as a domestic servant in order to offset her potential drain on her family’s meager resources. Hence, the employer has many in-built motivational factors with which to hold over the child to ensure compliance. Girls are particularly preferred because they are cheaper to hire, more malleable and will cost less than an adult does to support. [54] This happens especially amongst families that work and hitherto used their younger siblings to assist them with their household tasks who are no longer present, thus they have to find the cheapest alternative.

There is a general feeling that child workers besides being malleable are better suited for domestic work because of their availability and dependability. [55]The specific reasons advanced in favour of preferring child workers are that they are disciplined, easy to control, pay greater attention to work unlike older persons who are sluggish and less flexible. Further, children are patient, accommodating and persevering and cannot go away easily even if badly treated. They are also more faithful and loyal to employers’ property than adults.

They are easy to find as many are unable to continue with school due to lack of school fees especially higher education. They can also be beaten and coerced to work. 2. 40 TYPES AND CONDITIONS OF WORK. 2. 41 Types of work Child domestic workers undertake various domestic chores ranging from general household tasks to farm work. Some may be given tasks that are more specialized. The duties of child domestic workers include waking up before everyone to cook breakfast, clean the house, look after children, wash clothes, wash dishes, and look after babies. [56] Food must be ready by lunch hour.

In the afternoon the child domestic workers iron, clean the compound, fetch water and weed the garden. Evening duties include cleaning the children and cooking. They set the table, serve the food, clear the table and clean the dinner utensils before retiring to sleep. In addition, they collect firewood depending on the area where the employer stays, milk cows, engage in petty trade in cooked foodstuffs, and farm work. Some of them combine housework with farm work. They vacuum carpets, make beds, shop at the local stores or market and wash the employers’ vehicles. 2. 2 Conditions of work The children spend between 12 to 19 hours working. [57]Some rise as early as 4. 00 am and go to bed as late as midnight. They are the first to wake and the last to sleep, and are still considered on call for twenty-four hours, especially when visitors are present. They will cook and clean until very late or they spend the time nursing children and the elderly. At times they are woken up to attend to one task or the other. It is not uncommon to be woken to wait upon the employer at some ungodly hour of the night. A majority of these workers are paid in kind.

In a study conducted by IPEC –ILO,[58] it was discovered that as many as 25% of child domestic workers in Kenya are paid in kind. Some are not even aware that they earn. The rest, about 72 %, earn between Kshs 50 to Kshs 1800 a month. These payments are also very erratic and irregular. This remuneration is not pegged on any regulation and the variation is not a reflection of the kind of work they undertake. Urban centres tend to pay more and payment in kind is more common in the rural areas. Despite the meager salaries paid for these children, a sizeable portion of their salaries goes to the parents, relatives and siblings.

The children eat a different kind of food, usually of a poorer quality than the employer’s family. For instance, they take porridge without sugar, while the rest take tea with buttered bread, eggs and sausage. At times, they don’t eat from the same table with the rest, but have to eat the kitchen. Some are made to eat leftovers after everybody has eaten. They often have to work with babies strapped on their backs. They are given poor bedding and often have to sleep on the floor, either in the corridors, kitchen or even in the bathroom. They may even sleep in a different shed away form the main house.

They are forced to replace breakages by their salaries being cut. They are denied access to facilities such as radios and watching television, even use of toilet paper. Most of them have no leisure time off. [59] For some, the only time they have off is on Sundays when they accompany their employer’s family to church. They rarely do go on their own, visit friends or go walking. In fact they would rather spend the time resting or sleeping due to the exhaustion. Often, they are confined,[60] as they are not allowed to leave the employers’ premises without permission and are discouraged from speaking with strangers, even fellow domestic workers.

Often, they are beaten and subjected to cruel, humiliating and degrading treatment; they are slapped, their hair pulled, whipped and they are called names. This treatment is often for mistakes of the children under their ward or for simply refusing sexual overtures by the males in those households, who thus generate false accusations against the children. Unwelcome sexual advances are a norm for these workers and sexual relations are seen as natural and socially acceptable. [61] These children are rarely treated as part of their employer’s family where even at times they happen to be relatives.

They take orders from the family’s children. These children are isolated, spoken to roughly and criticized for the slightest thing. They loose contact with their families, whom they are allowed to visit once in a year for a few days, for those who still have parents. The workers are also profoundly discriminated against in the household. The worst aspects of the situation are that they work in is the loneliness, discrimination, lack love and understanding, loss of the sense of self-esteem and dignity. They are imprisonment in a servant persona, which they carry for the rest of their lives. 62] 2. 50 CONSEQUENCES OF CHILD DOMESTIC WORK Most of the domestic workers work in hazardous or exploitative conditions in major urban centers. [63] Hazards imply intangible threats to physical health and safety. Work hazards affect children more particularly. This is because they are more vulnerable to psychological and physical abuse and they suffer devastating psychological abuse from living and working in such conditions. They suffer physical hazards because their overall health is threatened, their strength, vision, hearing is affected.

Their cognitive development is slowed as due to the harm suffered by their self-esteem, and the lack of family attachment. Their social development manifested in the ability to co-operate with others and the distinction of right and wrong suffers. Respect for the laws, respect for people and the need to live peacefully within a social context are lost sight of. Physical hazards are the most prevalent, and appear in the form of damaged vision, crippled limbs, weakened bodies, stunted growth and increased vulnerability to disease.

Some of these take years to manifest themselves overtly. They are generally due to the violence meted by the employers, overburdening the children and high rates of sexual and physical abuse. Psychological hazards are prone to lead to stunt in intellectual development, as the child workers are denied educational opportunities. They lose a chance of developing essential skills essential for improvement of their prospects as children. Domestic work either absorbs time so that attendance of school becomes impossible, or the children are too exhausted to study ffectively. Further, the social environment of domestic work undermines the values that children put in education. The abuse they face leaves a child traumatized and they cannot concentrate in school. When the work they do is burdensome and abusive, they are d

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