How the law protects domestic workers against abuse

Employers, labour rights lobbyists, legal experts and government suggest a dozen of possible solutions to ending sexual abuse against domestic workers.

Various laws in Kenya protect their rights at the workplace and prescribe decent terms of service.

Under Article 41(2) of the Constitution, every employee is entitled to fair remuneration and reasonable working conditions of which Regulations of Wages (General) (Amendment) Order of 2018 provides minimum remuneration that a domestic worker deserves depending on the location.

Those in Nairobi, Kisumu and Mombasa are supposed to be paid a minimum monthly wage of Sh13,572.90. For those in the former municipalities of Limuru, Mavoko and Ruiru, their pay should not be less than Sh12, 522.70. While other areas should pay Sh7,240.95.

Further Section 16(3) of National Hospital Insurance Fund Act (Cap.255) requires an employer of a domestic worker to deduct and remit his or her monthly contributions to the fund. In the current rates, an employer in Nairobi or Limuru would be remitting Sh500, while the one in Migori County would post Sh300.

Minimum contribution

Additionally, Section 20 of National Social Security Fund (NSSF) Act No. 45 of 2013, requires an employer to remit a prescribed amount from her or his wage and contribute an equivalent amount to the fund. Presently, NSSF has provided Sh200 as a minimum monthly contribution.

Based on media reports, however, most employers don’t honour these statutory requirements, a violation of their labour rights in addition to abuse of their sexual rights.

Further, from interviews with three employers from Vihiga, Kisii and Migori counties, most Ugandans are paid Sh2,000 to Sh4,000 depending on their age. While for Kenyans, it is an average of Sh4,000. Of all the three employers, none currently remits either NSSF or NHIF.

National chairperson of National Domestic Workers Council of Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers (Kudheiha) Ruth Khakame, says domestic workers don’t report sexual abuse.

Poverty has condemned them to give in so that they can continue getting tips to top up their meagre wages or simply keep their jobs, she says.

And because the cases go unreported, it is difficult to tell the magnitude of sexual abuse against the domestic workers, she says.

She describes the employers’ attitude towards domestic workers as that which is dismissive and demeaning. As such, opening up about their abuses in this kind of environment is an impossibility, she observes.

Criminal offence

“Employers hold the attitude that the domestic workers are underdogs and cannot hold anything against them. With this in mind, the domestic workers fear going to the police to report their abuses lest they get arrested with trumped up charges,” she says.

But all hope is not lost. To get help or justice for the criminal offence committed against them, they can file complaints of abuse at the Kudheiha offices available in all the 47 counties, or reach them through its 24/7 hour toll free line 0800 722 832.

“We are glad to assist those whose rights have been abused. We are there to arbitrate on their behalf,” she says.

As the workforce of domestic workers is projected to marginally bulge from the current estimates of two million, the need for creating a safe working space for them becomes even more urgent, Ms Khakame notes.

“Kenya needs to domesticate Convention 189 (International Labour Organisation’s (ILO) Convention on Domestic Workers, which prescribes just working conditions for domestic workers) so that we the domestic workers can enjoy decent work,” she says.

Article 5 of the Convention, of which Kenya is a signatory, requires member States to “take measures to ensure that domestic workers enjoy effective protection against all forms of abuse, harassment and violence.”

Mr Julius Okoth, a social justice activist who also trains domestic workers on labour relations, says majority of the domestic workers have little education and therefore, have no idea where and how to get help.

“What domestic workers need is much sensitisation on their rights so that they can gain confidence and courage to stand up for their rights. They should not be the underdogs. They should fight for their rights,” he says.

Going by the available data of 65 agencies permitted by the Kenyan government to recruit domestic workers, if each was to place 1,000 of them in the Kenyan households, it would mean only 65,000 out of the estimated two million, have a clue about their rights and where they can get help.

That implies 96.75 per cent of the domestic workers in the Kenyan households are straight from the villages or home countries without any information on laws governing their work and mechanisms of seeking justice in case of any violation.

Legit and professional agencies arm their recruits with contacts for seeking help in case of abuse.

Apart from sensitisation offered by agencies and non-governmental organisations, there are institutions training those who intend to work in homes.

Centre for Domestic Training and Development (CDTD) is one of them. Ms Edith Murogo, the founder of the centre says in its two decades of existence, they have trained 30,000 domestic workers. Here they are also taught about their labour rights.

She says CDTD partnered with Kenya Institute of Curriculum Development to develop a Homecare Management Curriculum, which was launched in 2018.

Pre-departure training

Accredited by National Industrial Training Authority, the curriculum guides instructors on equipping the domestic workers with skills on home care, childcare, home care nursing as well as life skills. They also undergo pre-departure training, which opens them up to what they would expect at the workplace.

Irene Kalekye, a resident of Utawala, Nairobi County, has in the past two years, employed a total of 11 domestic workers.

Out of these, seven were referred straight from the villages in either Kakamega or Machakos counties. Three were from Uganda who at the time of recruitment, lived with relatives in Kibra, Nairobi County.

Her current help is an orphan from Kisii County.

She says she dismisses the helps when they beat her two children aged six and four, become rude or dress indecently.

“I had a Ugandan who could wear bikers and some transparent tops. I bought her new clothes but she could only wear them when I was at home.  When I’m away, she would go back to her own dressing, which I did not like since my children are both boys. She didn’t know I could see her from the nanny camera in the living room,” she says.

“Is that not inviting danger?” asks Ms Kalekye, a Nairobi-based businesswoman.

Although she agrees there are “evil employers who take advantage of the domestic workers,” she advises them to carry themselves with respect and let the employers know their boundaries.

It is these evil employers who have caused turmoil to at least 500 workers including Kenyans, Ugandans, Tanzanians, Rwandese and Sudanese, who in the past decade, sought help from Grace Ngugi, executive director of Dhobi Women Network, a non-governmental organisation that started in 2010 to empower domestic workers to demand for fair labour terms.

In Kenya, according to Ms Ngugi, majority of the cases have been reported by women and girls aged 21-58 hailing from Western, Eastern, parts of central Kenya and Nyanza.

In Nairobi County, they are mostly abused in households in Karen, Pangani, Lang'ata, Kilimani, Kileleshwa and Westlands, she says.

Often, she either helps them to report the cases or she refers them to pro bono lawyers to assist them. According to her, 99 per cent of them fear to pursue justice and in the cases that have made it to the police Occurrence Book, justice has never been served.

She recalls a case that involved a 16-year-old Ugandan girl who had been defiled by her employer in Kileleshwa.

“We reported her case and the police took us round in circles. Until now, we don't know what happened to that case since we were told they were looking into it,” she says.

“Justice would be served faster if we had a synchronised reporting system and a GBV court just like we have employment and labour relations court,” she observes.

Legal support

The GBV one-stop centre is a model that has worked in Rwanda. Isange one-stop centre was the first to be established in 2009, enabling survivors to access medical care, psychosocial support, police and legal support as well as facilitate collection of evidence.

By 2019, the number had increased to 44, due to what CARE Nederland observes in its analysis on Rwanda's progress in tackling GBV, as a success from the use of the model.

In 2020, South Sudan also launched the first GBV and Juvenile Court in Juba to hasten access to justice for the GBV survivors.

In October, 2021, the National Police Service (NPS) launched the Policare Policy, which has been coined from “Police” and “Cares”. The policy has a framework to establish, manage and operate one-stop care centres in the country.

The centres will ease the burden of GBV survivors who will access medical, legal and psychosocial services all in one place.

It is not the end of the road for domestic workers whose cases are ignored or mishandled by the police. There are also various mechanisms through which they can get justice.

Labour offices

Ministry of Labour, Principal Secretary, Engineer Peter Tum, says sexual abuse of domestic workers is a GBV issue, which is currently being tackled by a multi-sectoral team.

“The government has systems of protecting them. Let them report to the police and if they face any difficulties, they should report to the labour offices across the country,” he advises.

“It should not be the case of once they go to the police and they are not able to get help, then they don’t have any other recourse. No, we have other offices that can help you.”

On December 9, 2021, during an Annual Human Rights Conference convened by Journalists for Human Rights, Dr Mark Leleruk, who represented the Office of the Inspector General of Police, said any individual aggrieved or improperly handled by the police should lodge an official complaint with the Internal Affairs Unit at the NPS, for action to be taken against the officer.

A domestic worker can successfully sue her employer for sexual abuse and be awarded compensation for the damages.

In 2013, NML* who was represented by an advocate from Kituo Cha Sheria, sued her employer Peter Petrausch, a German national at the Industrial Court in Mombasa for sexual harassment and unfair termination of her services.

Mr Petrausch had among other things touched NML inappropriately and demanded her to sleep with him. He also made her watch him have sexual relations with his wife so that she would play the part when she was away. She protested these advances and he sacked her.

In 2015, the court found him guilty and awarded NML Sh1.2 million.

Kituo Cha Sheria, advocacy, governance and community partnership, program officer, Zedekiah Adika says they represent domestic workers through their volunteer advocate scheme, considering the poor and marginalised status of most domestic workers.

“We also train them on their rights and how to defend themselves in court and where to get legal support where need be,” he says.

He says sexual violence is a criminal offence and a survivor has the right to get justice for the harm caused.

Suffering in silence

“A victim may as well consider filing a civil matter, seek damages, and in case they get the judge's or magistrate's ear, their damages can be awarded,” he says.

Seemingly ending violence against domestic workers would begin with empowering them to stand up for themselves as Mr Okoth, the social justice activist puts it: “You cannot slaughter a pig in silence.”

“You always have to make noise to slaughter it. It's the same case for the domestic workers. They should speak out. Remaining silent means you will suffer forever.”

And with emerging innovations to address GBV, it has increasingly become easier for a survivor to access emergency help without drawing anyone’s attention.

If you are a domestic worker and you are suffering in silence, dial *483*143 or call 1195, and someone will certainly come to your aid.

This is the final of the two-part series of investigative piece on sexual violence against domestic workers in Kenya. It was produced with support of a grant from Voice for Women and Girls’ Rights - Kenya

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