State blamed for ignoring shoddy foreign employment contracts

Government is exposing Kenyans seeking employment in Saudi Arabia and other foreign countries to harsh working environment by failing to fully implement existing Bilateral Labour Agreements, recruiting agencies have said.

According to the Association of Skilled Migrant Agencies of Kenya(ASMAK), the National Employment Authority(NEA) and Labour department have been approving contracts that do not safeguard Kenyans working rights ,which includes working hours and leave.

Among them is the Bilateral Labour Agreement(BLA) with Saudi Arabia signed in 2017, that provides for better working conditions, insurance and accommodation, among other benefits.

Kenya has BLA's with the Kingdom of Saudi Arabia, State of Qatar and the United Arab Emirates, aimed at protecting Kenyan migrant workers.

Though the BLA with Saudi Arabia, seen by the Star, indicates employees should be provided with “continuous and undisturbed rest of at least nine hours” per day and a day off per week, NEA approves contracts which omit these conditions, ASMAK said.

This has continued to expose Kenyans to long working hours and exploitation by their employers.

“What the workers sign is very different from the BLA provisions. Some end up working from morning until mid-night, some even for up to 21 hours yet the BLA provides for favourable working conditions,” ASMAK chairman Harun Ambenje said in an interview with the Star.

Under the agreement, contracts are processed through a Saudi platform dubbed “ Musaned”—an integrated electronic system under Saudi Arabia's Ministry of Labor and Social Development.

The system facilitates procedures for the recruitment of domestic workers. Contracts are approved by Kenyan authorities before the workers are allowed to travel.

“NEA being a legal entity that adjudicates these contracts, they should say the contract does not have working hours and rest days so we are not stamping them,” Ambenje said.

This, he said, will ensure workers get better working terms.

“Agencies are being blamed when Kenyans go through difficult times abroad but fact is we don't have any mandate over the contracts. The provisions are there but the people charged with executing them are not doing their job,” he said.

Saudi Arabia is a key destination for migrant domestic workers, hosting more than 200,000 workers.

Cases of Kenyans being mistreated in the Gulf saw the government stop Saudi Arabia from recruiting domestic workers in the country in 2014.

The Kenyan embassy in Riyadh has previously been unable to help some Kenyans who are in distress, mainly those in another cities.

Recruitment was however oped after the BLA came into place with the then Labour and Social Protection CS Ukur Yatani, now National Treasury CS, expressing confidence the agreement would improve the welfare of Kenyans abroad.

At least 60,000 Kenyans , majority domestic workers, left the country to Saudi Arabia last year according to ASMAK.

“The government should ensure all Kenyans traveling for work abroad are protected,” Ambenje said, noting majority are unaware of the provisions in the BLA.

NEA Director-General Edith Okoki however said the authority has no mandate on approval of contracts.

“After we signed the BLA, before a worker leaves the country, the attestation of any contract is done by the labour office not the National Employment Authority,” Okoki told the Star on phone.

“Once a Kenyan is outside the country, we have the labour attaché who looks at them case by case.”

She said the authority is however mandated to accredit agencies and works closely with the labour department to address arising issues.

“Whenever complains come to us, we try to handle them together with the labour department so that if an agency becomes notorious, we can deregister them,” said Okoki.

The Employment Act Chapter 226 section 83 stipulates that “a foreign contract of service shall be in the prescribed form, signed by the parties thereto, and shall be attested by a labour officer.”

It says a foreign contract of service shall not be attested unless the labour officer is satisfied that the consent of the employee to the contract has been obtained, of the absence of any fraud, coercion or undue influence, and any mistake of fact, or misrepresentation which might have induced the employee to enter into the contract.

It also requires that terms and conditions of employment contained in the contract comply with the provisions of the Act and have been understood by the employee, that the employee is medically fit for the performance of his duties under the contract; and that the employee is not bound to serve under any other contract of service during the period provided in the foreign contract.

There are about 320 recruitment agencies accredited by the authority.

With unemployment in the country at about 7.4 per cent, with about 85 per cent below 35 years, Kenyans have been seeking opportunities abroad in both skilled and unskilled labour.

Unemployment and underemployment remain major development challenge in the country mainly due to rapid population growth, low economic growth as well as the structural rigidities within the labour market.