AFRICA NAZARENE UNIVERSITY

SCHOOL OF LAW

A PROPOSAL SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR

THE AWARD OF THE BACHELOR OF LAWS (LLB) DEGREE

BY:

WYCLIFF NYAMWAYA OKIAMBA

REG. NO: 16G01ALLB022

YOUTH UNEMPLOYMENT IN KENYA: AN EXAMINATION OF INADEQUACY OF THE

LEGAL AND POLICY FRAMEWORKS VIS-A-VIS THE SOCIOECONOMIC REALITIES.
DECLARATION
I hereby truthfully declare that this project is my original work and it has never been presented anywhere
to any examination board.

AUTHOR : WYCLIFF NYAMWAYA OKIAMBA

SIGNATURE : …………..………………………

DATE : …..………………………………

SUPERVISOR:

SIGNATURE ………………………………..

DATE: ………………………………..

ii
DEDICATION.
I dedicate this project to my beloved family members, my lecturers and my friends with lots of love. Also,
all my friends who helped me in one way or the other.

iii
ACKNOWLEDGEMENT
My special thanks and gratitude for assistance and preparation and presentation of the project goes to my
project supervisor. I wish to extend my appreciation to all my Lecturers for their professional guidance
and advice on preparation of the this document.

iv
TABLE OF CONTENT
DECLARATION.......................................................................................................................................................ii
DEDICATION..........................................................................................................................................................iii
ACKNOWLEDGEMENT........................................................................................................................................iv
CHAPTER ONE: PROPOSAL................................................................................................................................1
1.0 INTRODUCTION...............................................................................................................................................1
1.1 BACKGROUND TO THE PROBLEM.............................................................................................................1
1.2 STATEMENT OF THE PROBLEM.................................................................................................................3
1.3 JUSTIFICATION OF THE STUDY..................................................................................................................4
1.4 OBJECTIVES OF THE STUDY........................................................................................................................4
1.5 RESEARCH QUESTIONS.................................................................................................................................5
1.6 RESEARCH METHODOLOGY.......................................................................................................................5
1.7 SCOPE OF THE STUDY....................................................................................................................................5
1.8 THEORETICAL FRAMEWORK.....................................................................................................................5
1.9 LITERATURE REVIEW...................................................................................................................................5
CHAPTER TWO: EVOLUTION OF LAW AND POLICY FRAMEWORKS IN RELATION TO
EMPLOYMENT IN KENYA...................................................................................................................................8
2.0 INTRODUCTION...............................................................................................................................................8
2.1 THE EVOLUTION OF LABOUR LAWS IN KENYA....................................................................................8
2.1.1 LABOUR STRATEGIES IN THE COLONIAL ERA...............................................................................8
2.1.2 POST-INDEPENDENT KENYA..............................................................................................................10
2.2 POLICY DYNAMICS.......................................................................................................................................11
2.2.1 OVERVIEW................................................................................................................................................11
2.2.2 STRUCTURAL ADJUSTMENT PROGRAMMES (SAPS) AND LIBERALISATION.......................12
2.3 EMPLOYMENT CREATION POLICIES FROM 1990 TO 2013................................................................14
2.3.1 RECOVERY POLICIES (1997-2008).......................................................................................................14
2.3.2 THE KENYA NATIONAL YOUTH POLICY (KNYP), 2006................................................................15
2.3.3 YOUTH ENTERPRISE DEVELOPMENT FUND (YEDF)...................................................................15
2.3.4 THE KAZI KWA VIJANA (JOBS FOR YOUTH) AND KAZI MTAANI (JOBS IN THE STREETS)
PROGRAMME....................................................................................................................................................16
2.3.5 The Uwezo Fund (2013)..............................................................................................................................17
2.4 CONCLUSION..................................................................................................................................................17
CHAPTER 3: INADEQUACIES OF THE REGULATORY FRAMEWORKS: A CAUSE OF YOUTH
UNEMPLOYMENT................................................................................................................................................19

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3.0 INTRODUCTION.............................................................................................................................................19
3.1 INADEQUACIES OF THE LAW AND YOUTH UNEMPLOYMENT.......................................................19
3.2 GENERAL LABOUR LAW DEFICIENCIES................................................................................................19
3.2.1 CONSTITUTIONALITY OF SECTION 45 (3) OF THE EMPLOYMENT ACT, 2007......................21
3.3 MINIMUM WAGE REGULATIONS AND YOUTH UNEMPLOYMENT.................................................23
3.3.1 THE SITUATION OF KENYA.................................................................................................................23
3.3.2 THE LINK TO YOUTH UNEMPLOYMENT.........................................................................................24
3.3.3VALUE ADDED TAX ACT, 2013: AN ILL-INFORMED ACTION......................................................25
3.4 EMPLOYMENT POLICY WEAKNESSES...................................................................................................26
3.5 CONCLUSION..................................................................................................................................................29
CHAPTER FOUR: YOUTH UNEMPLOYMENT IN ADVANCED EUROPE, COMPARATIVE ANALYSIS
................................................................................................................................................................................... 30
4.0 INRODUCTION: YOUTH UNEMPLOYMENT IN UNITED STATES......................................................30
4.1 THE U.S. DEPARTMENTS FOR YOUTH EMPLOYMENT POLICIES...................................................31
4.2 YOUTH UNEMPLOYMENT IN ADVANCED EUROPE............................................................................32
4.3 FACTORS AND TRENDS IN YOUTH UNEMPLOYMENT IN ADVANCED EUROPE.........................33
CHAPTER FIVE: SOCIO-ECONOMIC REALITIES ASSOCIATED WITH YOUTH UNEMPLOYMENT
................................................................................................................................................................................... 36
5.0 INTRODUCTION.............................................................................................................................................36
5.1 YOUTH UNEMPLOYMENT AND THE SOCIAL REALITIES.................................................................37
5.1.1 CRIME: A THREAT TO NATIONAL SECURITY...............................................................................37
5.1.2 YOUTH UNEMPLOYMENT AND “SEXPRENEURSHIP”..................................................................38
5.1.3 THE KENYA-MIDDLE EAST YOUTH EXODUS.................................................................................40
5.1.4 INCREASED LEVELS OF POVERTY AND SOCIO-PSYCHOLOGICAL STRESS.........................41
5.1.5 SOCIAL EXCLUSION AND MARGINALIZATION.............................................................................42
5.2 ECONOMIC REALITIES ASSOCIATED WITH YOUTH UNEMPLOYMENT......................................42
5.2.1 ECONOMIC SUPPRESSION...................................................................................................................42
5.2.2 THE CAPITALIST SITUATION VISA-A-VIS THE WORKING CONDITIONS..............................42
5.3 CONCLUSION..................................................................................................................................................43
CHAPTER SIX: SUMMARY RECOMMENDATIONS & CONCLUSION......................................................44
6.0 RECOMMENDATIONS...................................................................................................................................44
6.1 CONCLUSION..................................................................................................................................................47
BIBLIOGRAPHY....................................................................................................................................................49
Books........................................................................................................................................................................ 49

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THESES................................................................................................................................................................... 50
JOURNALS AND ARTICLES...............................................................................................................................50
WORKING PAPERS AND REPORTS.................................................................................................................51
INTERNATIONAL INSTRUMENTS...................................................................................................................53
SESSIONAL PAPERS AND PLANS/POLICIES.................................................................................................53
INTERNET SOURCES...........................................................................................................................................53

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 CHAPTER ONE: PROPOSAL

1.0 INTRODUCTION

Employment accords young people a certain degree of economic security that is often a prerequisite for
self-reliance, partnership formation and parenthood. However, where the labour market is volatile, a great
number of them turn to illegal means of self-reliance that plagues their socioeconomic life. To address this
challenge, the government of Kenya has over time developed broad policy and legal approaches to relative
success.

In spite of the existence legal and policy systems, the labour market is ever suppressed by numerous
upheavals which are predicated heavily on inadequacy of those legal mechanisms. Thus, the focal point of
this study is to spark debate on what needs to be done to eradicate the setbacks that have bedeviled the
youth labour market by establishing the extent to which the machinations of the labour law and policy can
be deployed and supplemented to curb the unemployment curve in Kenya.
Various legal and policy frameworks shall be critically examined in this study against a backdrop of
socioeconomic conditions facing the Kenyan youth.

1.1 BACKGROUND TO THE PROBLEM

The present youth employment situation in Kenya is informed by various legal and policy interventions
since independence. At independence, the Kenya government had identified poverty and unemployment
as the twin challenges facing its economy.

Several distinct “implementations For instance, from 1963 to 1979, the Government adopted the
Kenyanization policy with the aim of increasing employment opportunities for the Kenyans by excluding
foreigners in rural trade, and using work permits to limit employment of expatriates.1

There was also established a minimum wage regulation and guideline which resulted to a wage restraint to
ensure sustainable economic growth.2 These measures produced mixed results: there was an increase of

1
Ibid pg14

2
Omolo O J, “Youth Employment in Kenya: Analysis of Labour Market and Policy Interventions” (2012) Institute of Economic
Affairs, FES Kenya Occasional Paper No 1, 2 (Omolo 2012); see also Republic of Kenya, “Sessional Paper No 10 of 1973 on
Employment” (1973) Government Printer, Nairobi

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wage employment by 2.8% per annum and overall employment within the public service increased from
14.6% to 97 per cent.3

There was also a 2.9 per cent annual increase in labour productivity of wage employees and a 6.8 per cent
increase in capital-labour ratio.4 The implication is that the economy grew more capital intensive contrary
to a desired labour intensive one given the labour surplus nature of the Kenyan economy.5 However, there
was no creation of new jobs since it involved a replacement of non-citizens with citizens.

The subsequent policies such as the informal or Jua Kali (under the hot sun) initiative, the Kazi Kwa
Vijana (jobs for youths) and Kazi Mtaani (jobs in the streets) mechanism and the medium-term Youth
Enterprise Development Fund fared no better 6 due to inadequacy of the legal enforcement setbacks.

This invariably gave rise to employment vices inter alia child labour, disregard to health standards, and
poor wages. The latter is the main factor contributing to the establishment of the ‘working poor’ class
which stands currently at 46% of the workforce.7 Besides, during the 2012-2013 political campaigns, The
Jubilee Political Party Coalition developed a Manifesto which encouraged agricultural practice among the
citizens and the non-dependence on strict formal employment.8

In accordance with its pre-election promises, the now-Jubilee Government recently tabled a Sessional
Paper in Parliament which is meant to spell out the roadmap to the creation of one million jobs. Its
viability is however yet to be proven.

Despite the existence of all these legal and policy interventions, creation of adequate and sustainable
employment continues to be the greatest dilemma in Kenya.9 This is especially worrying for the youth
who may get trapped into a lifetime of weak attachment to the labour market alternating between low paid
insecure work and open unemployment. Even though new labour laws have been enacted to remedy the
lacunae, they have so far achieved little. Thus, the need to promote youth employment in Kenya cannot be
gainsaid.

3
ibid.
4
ibid.
5
Omolo O J, “An Overview of Incomes and Wage Policy in Kenya: Effectiveness and Constraints to Productivity Enhancement”
(2002) A paper presented during a Productivity Policy and Legal Framework Workshop, Mombasa.
6
Omolo 2012 (n 3).
7
ibid; see Extra Mural Stucddies-Main Report -ems.uonbi.ac.ke/sites/default/files/cees/.../ems/Main%20Report.pdf
8
See also President Uhuru Kenyatta’s speech during Madaraka Day celebrations, June 1, 2013; Read more at
<http://www.standardmedia.co.ke/?articleID=2000084976>
9
Omolo 2010 (n 1) 2.

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1.2 STATEMENT OF THE PROBLEM
The study addresses the problem of youth unemployment which has greatly blurred the economic growth
rate of contemporary Kenya. The right to youth employment is constitutionally recognized and any
unemployment situation translates into legal inadequacy setbacks. Article 28 of the Constitution accords
all Kenyans the right to human dignity; and for a person to enjoy this right, the state has the sole
responsibility of setting up an enabling environment, which includes inter alia ensuring a system of self-
reliance for that person.

Despite this constitutional recognition, the difficulty in finding employment as a means of securing a
livelihood is an ongoing obstacle for the youth, along with the sense of frustration arising from failing to
meet their work expectations. The root cause of this problem centers on the inadequacies of the Kenyan
legal frameworks.

On Inadequacies of the existing Kenyan legal frameworks for instance, the law has failed to envisage the
evolving forms of employment, such as informal employment, part employment, agency employment and
self-employment.

Similarly, the current law is preoccupied with an employment rather than work system. This point is not
an empty interest on semantics but, just as in the foregoing, has drastic consequences for the labour market
if ignored. A difference between these terms is in the scope: while employment denotes formality in the
job, work is inclusive of the formal and informal sector. The law ought to be reformed to be more
involved with work rather than employment in order to afford all-round protection.

Lastly, collective bargaining in Kenya is mainly centered on wage and other monetary issues with little
focus, if any, on other conditions of employment and unemployment on youths that would add towards
improved welfare of workers and their general productivity. Consequently, collective bargaining
agreements impose greater labour costs on employers and this limits youth employment creation thus
unemployment.

Whereas the government is setting effective standards to promote employment for all, the present law is a
drawback on the whole process. For instance, section 56 (2) of the 2007 Employment Act allows children
of between the age of 13 and 16 to be engaged in ‘light work.’ This proviso not only affects the education
of the child contrary to the Free Primary Education policy guidelines, but also the job opportunities that
are available for the semi-skilled youth bulk. Besides, while section 2 of the Act defines the age of a child

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as below 18, the Children’s Act holds that only child above the age of 16 should be employed. Hence the
government should harmonize the two instruments.

Regrettably, businesses are suffering a heavy burden of taxation among other costs following the
enactment of the new VAT law.10 This spare not the investor business which is the greatest hub for youth
employment in most developing counties. Further, although the law seeks to protect employees’ rights and
was apparently enacted to root out

Oppressive practices at the workplace, it is negatively affecting the job market through increment of
employment cost.11 For example, the introduction and entrenchment of requirements such as the medical
surveillance, health and safety audits among others into the labour laws is practically increasing the cost of
doing business in the country.

The study therefore will establish the link and the gap between the status of youth unemployment and,
article 55 (c) of the 2010 Kenyan constitution on youth access to employments and legal inadequacies that
is existing within various legal instruments that are enacted to deal with employment in Kenya.

1.3 JUSTIFICATION OF THE STUDY

The youth form the main hub of Kenya’s economic growth. The high rate of youth unemployment
therefore translates into sluggish economic development. This study is important as it lays down a clear
guideline on how the Ministry of Labour should tackle the teething problem of youth unemployment in
Kenya. Even though the present Jubilee Government’s manifesto is sound on employment, the
implementation process is not easy unless the question of adequacy of law is effectively addressed.

1.4 OBJECTIVES OF THE STUDY

The main objective of this study is to find out how the inadequacy in law and policy frameworks has led
to youth unemployment in Kenya and the socio-economic implications. Specifically, the study seeks to:

1. Analyses the inadequacy of the legal frameworks on youth employment;

2. Identify and analyses past and present youth employment policy gaps;

3. Describe the current socio-economic situation in relation to youth employment in Kenya; and

10
The Value Added Tax Act 2013 (Kenya).
11
Betty Maina (CEO), New Labour Laws to Strain Employee/Employer Relationship, (2013) Kenya Association of Manufacturers
(KAM) <http://www.kam.co.ke/index.php/press-releases/140-new-labour-laws-to-strain-employeeemployer-relationships>
accessed 7th November, 2013.

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4. Make proposals for reform to curb youth unemployment in Kenya in line with the ‘grand’ Vision 2030.

1.5 RESEARCH QUESTIONS

The dissertation is intended to address the following questions:

1. To what extent are the current legal and policy frameworks inadequate for youth employment in
Kenya?

2. To what extent does the legal and policy framework contribute to youth unemployment?

3. What are the socio-economic effects of youth unemployment in Kenya?

4. Which reforms should be adopted to remedy the unemployment gaps in Kenya?

1.6 RESEARCH METHODOLOGY

The study uses qualitative methodology that is based on secondary sources such as books, publications in
newspapers, journals, articles and reports relevant to the study; the labour legislations; the 2010
Constitution, with specific reference to Article 55; and the National Youth Council Act, 2009.

1.7 SCOPE OF THE STUDY

The study is specifically limited to the teething Kenyan unemployment situation. It focuses on the
examination of the legal and policy framework, the present labour regulations and further lays down the
possible way forward.

1.8 THEORETICAL FRAMEWORK

This study is informed by three main theories: the classical economic model theory, the general theory,
and anomie theory

1.9 LITERATURE REVIEW

A number of literature exist on this broad subject, most of which emanate from developed countries such
as US and UK. Studies have also been conducted on the question of youth unemployment especially
within the Kenyan sphere. However, there is scarcity of any comprehensive literature that addresses the
precise issues raised by this study.

xii
Jacob Omolo (2012)12 recognizes Kenya’s acute youth employment challenge and links it to the high
demographic momentum coupled with such antecedent factors as skills mismatch, lack of appropriate
skills among the youth, the shrinking formal sector, and weak entrepreneurship culture. According to him,
employment frustrations of the youth results from weak absorptive capacity of the labour market. This
does not lead to work career improvements, which also complicates absorption of the youth into formal
jobs.

He further notes that even though Kenya’s long term employment policy interventions have been
anchored on economic growth, the country’s employment elasticity is low. That only phenomenal and
sustained growth rates can lead to required levels of job creation.

His study does not however reflect on any lacuna in law and how legal inadequacy contributes to the
youth unemployment quagmire in Kenya. He only focuses on policy issues since independence and
general unemployment trends, albeit with important recommendations that touch not on the law.

Martin, Godfrey (2003)13 explains that unemployment emanates from such pitfalls as labour market
failure, which impedes absorption of new entrants; poor quality of the skills possessed by the
disadvantaged youth in relation to those demanded by the expanding sectors; and labour market
regulations.

In his analysis of youth unemployment in developing and transition countries, he greatly alludes to the
concept of government intervention espoused by the Keynesian theory. He identifies two kinds of policy
interventions – preventive and curative.

According to him, a preventive intervention tries to counteract the process that generates the problem,
while a curative intervention only deals with the consequences of a problem.14 That in the case of poverty,
a curative intervention will find out where the poor are and try to alleviate their situation; while a
preventive one will analyses the causes of poverty and devise strategies to prevent it – it deviates from the
symptoms of a problem to the causes.15 He however admits the application of the two approaches in
solving the problem of youth unemployment.

12
Omolo 2012 (n 3) 20.
13
ibid (n 21)
14
ibid
15
Ibid

xiii
He writes that certain labour laws, particularly those dealing with employment security, increase the cost
of employment and thus reduce the employers’ incentive to recruit new workers. His work forms the basis
of this study, save that he has not delved on the practicality of the laws.

Chapter breakdown

Chapter one-------------proposal: Introduction

Chapter two------------- evolution of law and policy frameworks in relation to employment in Kenya.

Chapter three---------- Inadequacies of the legal frameworks: a cause of youth unemployment.

Chapter four------------ comparative analysis

Chapter five……………...socio-economic realities associated with youth unemployment.

Chapter six-------------- summary recommendations and conclusion

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CHAPTER TWO: EVOLUTION OF LAW AND POLICY FRAMEWORKS IN RELATION TO
EMPLOYMENT IN KENYA.

2.0 INTRODUCTION
Kenya is constantly in transition. Every facet of its economy has over time been evolving. It started right
from the colonial period and heightened after independence. The basic drive for this has been an
illuminated socio-economic nation; a nation that stands out strongly and finds position within the locus of
developed jurisdictions.

Virtually all the key segments of development have been a target. These comprise employment, health,
education, and transport and communication. While the corpus of these revolutions is, and remains, self-
reliance, the legal and policy frameworks should be sound enough to anchor the whole process. Any
hiccups hindering this chain can only be established firstly by tracing the regulatory dynamics.

This chapter therefore explores the evolution of employment laws and policies in Kenya in order to lay a
basis for the establishment of youth unemployment problem.

2.1 THE EVOLUTION OF LABOUR LAWS IN KENYA

2.1.1 LABOUR STRATEGIES IN THE COLONIAL ERA
The genesis of modern employment law can be traced back to the 19th century when the colonial
government, faced with a fast growing enterprise in the agricultural, industrial and service sector in its
Protectorate, passed legislation which ensured adequate supply of cheap labour from Africans.16 Terms
and conditions of employment were regulated by statutes and English common law. Initially, the law of
contract in Kenya was based on the 1872 Contract Act of India which applied on contracts made or
entered into before 1st January 1961.17 This Act applied to the three East African countries – Kenya,
Uganda and Tanzania.

16
<http://kenyalawsonline.blogspot.com/2013/06/labour-laws-in-kenya.html> last accessed 1 st February 2020
17
ibid; see also section 4 of the Law of Contract Act (Cap 23 Laws of Kenya.

xv
 The Contract Act, 1872, of India was then repealed by the 1961 Kenyan Law of Contract Act, Cap 23.
Section 2 (1) of this Act allowed the application of the English common law of contract in Kenya, with
certain modifications. The common law principles of tort such as vicarious liability also applied. These
principles made the employer to be responsible for the acts of an employee, and also to compensate the
employee for injury or unfair termination of contract.

The effects of industrialization in Britain, especially the development and subsequent regulation of trade
unions, were also reflected in the Kenyan colony through the introduction of Ordinance No. 35 of 1939.
This required all wage earners’ organizations18 to apply for registration which they could be granted or
denied depending on whether they had legitimate dealings consistent with the government policy.19 The
Ordinance also allowed any group of seven individuals to form a trade union and operate as one upon
registration. Cancellation of registration under the Ordinance was not subject to appeal or open to question
in a court of law.20

In 1948, in order to gain complete hold on the wage earners’ organizations the government brought in a
Trade Union Labour Officer, to be attached to the Labour Department with the duty to foster "responsible"
unionism.21 In 1952, a more detailed piece of legislation was enacted to govern trade unions, albeit with
significant omissions.22 It lacked necessary provisions for effective operation of trade unions; and did not
legalize peaceful picketing or provide immunity against damages as a result of strikes.23

In addition, the government encouraged creation of staff associations and works committees since they
fitted in its interests of confining workers’ organizations to economic imperative alone and also lacked
strike powers.24

On the threshold of independence however, both employers and trade unions felt that it was vital for the
infant nation to make economic process; the incidence of strikes and lockouts had to be drastically

18
ibid
19
Hon Mr Justice Rika James, “The Re-Constituted Industrial Court of Kenya and the Role of the Social Partners,” A Discussion
Paper on the occasion of the COTU [Kenya] Capacity Building Workshop for Executive Board Members and General-
Secretaries Delivered at The Tom Mboya Labour College, Kisumu. 28th September 2012 (Rika 2012).
20
ibid; Aluchio L P A, Trade unions in Kenya: Development and the system of industrial relations (Jomo Kenyatta Foundations,
Nairobi 1998)
21
ibid (n 55); Ananaba Wogu, The Trade Union Movement in Africa: Promise and Performance (St Martin’s Press, New York
1979) 3.
22
ibid
23
ibid
24
<http://www.ilo.org/ifpdial/information-resources/national-labour-law-profiles/WCMS_158910/lang--en/index.htm> last
accessed 12th February, 2020 - International Labour Organisation. National Labour Law Profile: Kenya. 2011.

xvi
reduced. As a result, in October 1962, a landmark was these were associations formed to represent the
wage earners and also to protect and improve the latter’s pay and conditions of employment. They also
assisted in campaigning for better laws and policies in favour of the workers Established with the signing
of the Industrial Relations Charter by the government of Kenya, the Federation of Kenya Employers and
the Kenya Federation of Labour, a forerunner of the Central Organization of Trade Unions (COTU).

The Charter spelt out the management responsibilities of unions and their respective obligations in the
field of industrial relations; and further provided for settlement of trade disputes through conciliation and
arbitration.25 By 10th February 1964, the Government, together with employers and employees, concluded
a Tripartite Agreement which established an Industrial Court to which all disputes unresolved by
negotiation would be referred for arbitration.26 The establishment of the Court is magnified under section
14 of the 1964 Trade Disputes Act, Cap 234 of the Laws of Kenya (now repealed by the Labour Relations
Act, No. 4 of 2007). In 1965, this Act was amended to make the Industrial Court a standing body. More
reforms were carried out later in 1971.27

In a nutshell, the colonial era was marked with a plethora of laws that governed the African labour force,
including tax law which mandated every man to pay tax in form of money that could only be acquired
through provision of cheap labour to the white settlers. Laws governing labour in this era were all
connected to a common thread: racism towards the African majority and increased protection to the white
minority rulers.

2.1.2 POST-INDEPENDENT KENYA

Between1963 and 2001, the labour regulatory framework consisted of inter alia the Employment Act
(Cap.226), the Regulation of Wages and Conditions of Employment Act (Cap. 229), the Trade Unions Act
(Cap. 233), the Trade Disputes Act (Cap. 234), the Workmen’s Compensation Act (Cap. 236), and the
Factories Act (Cap. 514). These laws were formal-sector based and were not fully consistent with the
Conventions and Recommendations of the International Labour Organization to which Kenya is a party.

The informal sector therefore remained largely unregulated with poor working conditions and incidences
of child labour. There was therefore a need to eliminate the remaining colonial heritage in employment
relations and contracts, and also to merge and redraft the different laws in order to produce a user-friendly
and comprehensive labour legislation in Kenya.
25
Rika (2012),ibid note 65.
26
ibid
27
ibid

xvii
Thus, in 2001, the then Attorney General appointed the Cockar Task Force28 to review all the existing
labour legislations in Kenya, within a project of the International Labour Organization (ILO).29 The Task
Force was mandated to make recommendations on proposals for reform of the legislations in line with
international labour conventions and recommendations and other matters incidental thereto.

The recommendations made by the Taskforce included five legislation drafts to replace the existing
legislations. These transformed into law in 2007 and include the Labour Relations Act that regulates the
relationship between trade unions and employers or employees and employers or employers'
organizations; the Employment Act, the Labour Institutions Act, the Occupational Safety and Health Act
(OSHA) and the Work Injury and Benefits Act (WIBA). Each of these Acts was designed to respond to
the socio-economic conditions facing the labour market. However, not much has been achieved.

Other Acts of Parliament which have provisions that may have an impact on individual and collective
labour relations include the Kenya Law of Contract Act, the National Youth Council Act No. 10 of 2009,
the National Youth Service Act of 1965, the Income Tax Act (Cap. 470), the Value Added Tax (VAT) Act
No 35 of 2013, and the Children Act (Cap. 141). Some of these Acts form part of the ensuing Chapter of
this study.

The Constitution of Kenya 2010 has also made headway in promotion of employment rights 30through
constitutionalization of labour law, raising these rights to constitutional status. Article 41 in particular
provides for labour relations rights which include inter alia the right to collective bargaining. The
formation of trade unions and employers’ organizations is ratified by Article 36 provides on the freedom
of association.

Under Article 55, the State is required to take measures, including affirmative action programmes, to
ensure that the youth access employment. Paragraphs (5) and (6) of Article 2 of the Constitution make the
general rules of international law, and any treaty or convention ratified by Kenya, part of the laws of
Kenya. This means that all conventions of the International Labour Organization such as the Minimum
Age Convention, the Equal Remuneration Convention, and other agreements apply in Kenya.

28
Republic of Kenya, “Gazette Notice No. 3204 of 2001” Government Printer, Nairobi.
29
Rika (2012), ibid note 65
30
Constitution of Kenya 2010, Articles 41, 43 and 162 (2).

xviii
2.2 POLICY DYNAMICS
2.2.1 OVERVIEW
The labour policy dynamics in Kenya are predicated upon various attempts undertaken by the government
to establish the nature of employment problem. One of the earliest attempts was made in the 1970-1974
Development Plan 31which identified urban and rural unemployment, educated unemployed and
underemployment as the key types of unemployment afflicting the country.32The causes of such
unemployment were diagnosed as high wages and salaries, high labour force growth, use of modern
capital-intensive technology and attendant increase in labour productivity.33 Unemployment was further
linked to inadequate training and consequent lack of appropriate skills, shortage of land and other
resources, rapid expansion in school enrolments, skills mismatch, and rural-urban migration.34

Another attempt was magnified in the 1983 Report of the Presidential Committee on Unemployment 35and
the Sessional Paper No. 2 of 1985 on Unemployment36 which considered the problem of unemployment as
one of lack of access to income earning opportunities, whether in wage or self-employment.37 They
identified the major causes of unemployment in Kenya as inter alia rapid growth of the labour force, low
economic growth rate, job selectiveness, seasonality of some of the industries, and skills imbalance.

The latest government policy document, The Sector Plan for Labour, Youth and Human Resource
Development Sector38 (2008-2012) contended that unemployment in Kenya is both structural and
frictional in nature.39 According to the Plan, Kenya’s unemployment is mainly attributed to the slow
growth and weak labour absorptive capacity of the economy, mismatch in skills development and demand,
imperfect information flow and inherent rigidities within the country’s labour market.40

Within the above frameworks, Kenya has moved through three distinct employment policy periods: 1963-
1979; 1980-1989; and 1990-2011. In each of these periods, policies were augmented with various short-

31
Republic of Kenya, “National Development Plan 1970-1974” (1969) Government Printer, Nairobi.
32
Omolo 2012 (ibid n 3)
33
ibid
34
ibid
35
Republic of Kenya, “Report of the Presidential Committee on Unemployment 1982/83” (1983) Government Printer, Nairobi.
36
Republic of Kenya, “Sessional Paper No 2 of 1985 on Unemployment” (1983) Government Printer, Nairobi.
37
Omolo 2012, ibid (n 3).
38
Republic of Kenya, “Sector Plan for Labour, Youth and Human Resource Development 2008-2012” (2008) Ministry of
Labour, Nairobi.
39
ibid (n 85).
40
ibid

xix
term interventions that aimed to address particular issues of employment generation.41 On the other hand,
interventions such as wage restraint, economic growth, industrial and agricultural promotion, public works
programmes and active labour market policies are present in all the three periods.42

2.2.2 STRUCTURAL ADJUSTMENT PROGRAMMES (SAPS) AND LIBERALISATION

SAPs consist of a set of economic policies designed to generate rapid and sustainable economic growth
with macroeconomic stability. The key ingredients are based on the liberalization of prices and marketing
systems; financial sector policy reforms; international trade regulation reforms; government budget
rationalization; divestiture and privatization of parastatals and civil service reforms43.

The introduction of SAPs in Kenya began during the 1980/81 fiscal years with an aim of restoring
efficiency in all sectors of the economy and consequently raising the rate of economic growth44. However,
they did not become an important part of economic management until after the publication of the
Sessional Paper No. 1 of 1986.45 Since then, SAPS have been integrated as policy tools for economic
management. These programmes were initiated at the behest of and supported by the International
Monetary Fund and the World Bank.

These programmes however had numerous effects on the economy, such as inflationary pressures, the
marginalization of the poor in the distribution of educational and health benefits and a reduction in
employment.46 They became unpopular because they were accompanied by a series of conditions that
were harsh and rapid, that is, based on economic models that did not fit the Kenyan social structure and
conditions.47 For instance, the Kenya government had accused the World Bank of changing the goalposts
in the middle of the game, arguing that the programmes began with economic reforms and ended with the
aim of addressing political problems, using Western political models that ignored the nation's stability and
progress.48
41
Zepeda E, Fatou L, Ndirangu L and Omolo O J, “The Youth Employment Challenge: The insertion of Kenya’s youth into formal
and informal jobs” Kenya, 274
42
ibid
43
; Central Bureau of Statistics, “National Development Plan 1997-2001” (1997) Nairobi, Government Printer(Central Bureau
of Statistics 1997)
44
ibid
45
ibid
46
Ikiara K G and Coughlin P, “Industrialization in Kenya: In Search of a Strategy” (1988) Heinemann (K) (Ikiara 1988); Mwega F
W and Ndulu K, “Economic Adjustment Policies” (1994) Quoted in Barkan J D, Beyond Capitalism verses Socialism in Kenya
and Tanzania Nairobi, East African Educational Publishers (Mwega and Ndulu 1994); World Bank and UNDP, “Kenya: Challenge
of Promoting Exports” (1993) Washington DC, World Bank; Swammy G, “Adjustment in Africa: Lessons from Country Case
Studies” (1994) Washington DC, the World Bank (Swammy 1994).
47
Rono (2002) above 84.
48
ibid

xx
The economy was strained, making it difficult for both public and private sectors to create jobs.
Unemployment rate rose rapidly. By 1996, it was heading to 25 per cent, up from 6.7 per cent in
1978.49Employment patterns also changed as the GDP slumped to 0.4 per cent in 1993, having
experienced a rapid downward spiral after 1990. People lost jobs as companies and state corporations
embarked on massive retrenchment of employees to stay afloat.50 Thus from 1993, the informal sector
employment rapidly expanded and surpassed that of the formal sector as those who had suffered
retrenchment moved to Jua Kali industry.51

2.3 EMPLOYMENT CREATION POLICIES FROM 1990 TO 2013

This period was characterized by a number of macroeconomic interventions targeting renewed economic
growth and employment creation. These include inter alia fiscal framework, which sought to ensure that
the bulk of government expenditures were met from tax revenue. The major policies pursued during this
period are explored herein.

2.3.1 RECOVERY POLICIES (1997-2008)

The massive losses led the government to embark on direct interventions to reform the country on the path
of wealth and job creation by igniting economic growth to attract private sector investment and expansion.
Of note in this period was the government’s Economic Recovery Strategy for Wealth and Employment
Creation (ERSWEC) between 2003 and 2007.52The five-year strategy was anchored on the pursuit of
productive macroeconomic policies to boost economic growth and encourage private and foreign
investments and to increase investment in human capital development.

The strategy included opening up avenues for the micro and small enterprises (MSEs) to become sound
and generate more jobs.53 A popular intervention involved giving MSEs access to credit facilities by
enabling the expansion of microfinance institutions.54 The banks also became more accommodating in
their credit services.

49
ibid (n 92)
50
ibid
51
ibid
52
ibid
53
ibid at 526.
54
ibid

xxi
The ERSWEC did well to stir up economic growth. Kenya’s real GDP grew from 2.9 per cent in 2003 to
7.1 in 2007.55 However, this growth did not result in a corresponding expansion in employment. It was
because of drastic reduction in employment elasticity, caused by a combination of a high level of surplus
labour and a high labour force growth rate. The economic growth was short-lived, crudely swayed by the
post-election violence from December 2007 to February 2008.56

2.3.2 THE KENYA NATIONAL YOUTH POLICY (KNYP), 2006

The KNYP was established in 2006 in the face of a myriad of challenges that faced the youth coupled with
the lack of a comprehensive policy framework in favour of the youth. Its main objective was to promote
youth participation in community and civic affairs and to ensure that youth programmes were youth
centered.57

The policy spelt out the strategic areas that were to be addressed in order for Kenya's young people to
effectively play their role in nation development. These comprise inter alia employment creation,
participation and empowerment.58 The Policy further suggested for the formation of a National Youth
Council to facilitate, co-ordinate, monitor, advocate, and promote youth issues and youth-led initiatives,
under the then Ministry of Youth Affairs.

Part 10 of the Policy set out the implementation machinery as being an action plan detailing the strategies,
target groups, timeframe and the budget lines of the whole process.The result of these proposals was that
in 2007, a Strategic Plan 2007-2012 was established by the Ministry of State for Youth Affairs in order to
address the multifaceted issues that faced the youth in Kenya

This Plan identified key strategic themes of concern as: employment; youth empowerment and
participation; youth education and training; youth and information and communication technology; youth
and health; youth, crime and drugs; youth and environment; and youth, leisure, recreation and community
service.59The Ministry could undertake various programmes, activities and projects to implement these
strategies.

In addition to the Plan, a National Youth Council (NYC) was established under the National Youth
Council Act of 200960 to serve as the negotiating institution and amplifier of youth issues. This would
55
The Ministry of State for Youth Affairs (Kenya) – Strategic Plan 2007-2012, page 8
56
ibid
57
ibid
58
Kenya National Youth Policy 2006
59
ibid
60
Republic of Kenya, “National Youth Council Act No 10 of 2009” (2009) Government Printer, Nairobi

xxii
improve their socio-economic conditions as the frontier pillar of the Council’s objectives. The enabling
NYC Act was meant to ensure effective implementation of the KNYP.

2.3.3 YOUTH ENTERPRISE DEVELOPMENT FUND (YEDF)

YEDF was established in December 2006 by the government as an initiative of addressing the
unemployment rate among the youth.61 The twin strategic pillars of this initiative were enterprise
development and externally focused employment creation through Youth Employment Scheme Abroad
(YESA).62 The main aim was to create employment opportunities for the youth through enterprise funding
and development in line with the Medium Term Plan of Vision 2030. Other mandates were
entrepreneurial training as well as provision of commercial infrastructure fo youth to trade from.63 In 2008
the Fund developed a 3 year strategic plan to address varied needs and aspirations of the youth, and to
address the challenges it had faced in the past.64

Despite its great achievements,65 the Fund has been marred with a lot of upheavals as reflected in the
ensuing Chapter of this study.

2.3.4 THE KAZI KWA VIJANA (JOBS FOR YOUTH) AND KAZI MTAANI (JOBS IN THE
STREETS) PROGRAMME
In 2009 the Kenyan government launched the nationwide Kazi Kwa Vijana (KKV) programme in order to
employ between 200,000 and 300,000 young people annually on labour intensive public works projects
(Republic of Kenya, 2010).66 The programme was implemented under the overall supervision and
guidance of a national steering committee 67 For example, the Fund has so far financed over 157,000 youth
enterprises to the amount of KES 5.9 billion; and trained over 200,000 young entrepreneurs Chaired by
the then Prime Minister and comprising the Ministers and Permanent Secretaries with KKV projects.68

To increase the scale and consolidate the gains made under the KKV, in 2010 the Kenyan government
launched the Kenya Youth Empowerment Project (KYEP), a US$60 million, four year project funded by
the World Bank coordinated by the Office of the Prime Minister and designed to enhance the KKV by
61
<http://www.youthfund.go.ke/index.php/about-us/about-yedf >accessed 10th February 2021
62
ibid
63
<http://www.youth-employment inventory.org/inventory/view/977/ >last accessed 3rd February, 2020
64
ibid
65
ibid
66
ibid (n 82) 276-279; see also Stories of Employment, Kazi Kwa Vijana: Youth Empowerment in Kenya (Zepeda)
<http://www.oecd.org/dac/povertyreduction/48869464.pdf > last accessed 4th February, 2014
67
Amenya Simon, et al, “An Analysis of the Challenges Facing Youth Enterprise Development Fund: A Case Study of Nyaribari
Chache Constituency, Kenya” page 3, <http://www.aibuma.org/archive/proceedings2011/aibuma2011_submission_37.pdf>
last accessed on 12th march 2020
68
ibid (n 134).

xxiii
providing internships and youth training and enhancing the capacities of the implementing agency, the
Ministry of Youth Affairs and Sports (MOYAS).69 It focused on promoting community participation in
identifying projects, establishing clearer project selection criteria and optimizing the labour content of the
KKV as well as improving target-setting and developing a monitoring and evaluation system.70 The
renewed KKV prioritised projects in road maintenance, small-scale water supply and sanitation, water
harvesting, forestation and waste collection.

The programme also worked in collaboration with existing interventions such as the YEDF and
institutions such as the Kenya National Federation of Jua Kali Associations (KNFJKA).

2.3.5 The Uwezo Fund (2013)

In September 2013, the Kenya government launched a six billion Kenya Shilling (Kshs. 6 Billion) reserve
Fund to channel financial resources into the hands of youth and women.71 The main aim of the Fund is to
address the massive unemployment problem that affects the country, by encouraging entrepreneurship and
expanding access to credit. The idea is to generate opportunities for self-employment and enhance
economic growth by investing in community-driven alternative frameworks to development.72 “Uwezo
Fund aims to nudge Kenyan youth towards entrepreneurship and self-employment.” For Just and Inclusive
Cities

To step up the vibrancy of the Fund, the government has set up the Uwezo Capacity Building Program, a
training course that applicants are required to attend before they apply for the loan.73 This is to ensure that
the groups have the ability to invest well and eventually pay back the loans. A National Uwezo Fund
Oversight Board has been established to provide overall management, design and oversight of the Fund at
the national level.74 Besides, the government recently announced that it is setting up a committee that will
be in charge of overseeing how the money is spent to minimize any eventualities. This shall be done in
line with the Ministry of Devolution and Planning. So far, it is too early to tell to what extent the Fund will
effectively create employment opportunities for Kenya's youth.
69
ibid
70
<http://www.urb.im/ca131111nre>last accessed 4th march, 2021- Katy.
71
ibid
72
ibid see also Wamathai James, “All you need to know about the Uwezo Fund”.
73
ibid
74
ibid (n 138).

xxiv
2.4 CONCLUSION
The preceding evolutionary study is symptomatic of a dynamic Kenya. The results realised there from
cannot be underestimated. For example, the YEDF succeeded in supporting over 157,000 youth
enterprises to the amount of KES 5.9 billion.151 Over 200,000 young people were also trained on
innovative entrepreneurship.75 Conversely, whereas I take cognisance of the positive impact of the above
policies and laws and policies, I tend to deviate on the ground that the labour force in Kenya has often
remained desperate with open youth unemployment rate.

The foregoing policies and laws were formal based with the informal sector being severely strained and
poorly unregulated. This, in my view, reveals a slit between the theoretical and practical approach to the
regulatory mechanisms. This gap, together with the attached effects on youth unemployment, forms the
basis of the next Chapter of this study.

It is worth noting that the recently launched Uwezo Fund may seem sound, but without clear legal
frameworks and coordination mechanisms, it cannot be effective. The lacunae may persist even further
and hence sabotage the economic wellbeing of this Nation.

75
ibid

xxv
CHAPTER 3: INADEQUACIES OF THE REGULATORY FRAMEWORKS: A CAUSE OF
YOUTH UNEMPLOYMENT.

3.0 INTRODUCTION
From the foregoing Chapter, it can be noted that Kenya’s past has witnessed formulation of a plethora of
law and policy blueprints containing a raft of employment regulation and creation measures. These
milestones fit the Keynesian Theory which states that government interventions through fiscal and
monetary policies are important in economic development. However, most of the efforts have not resulted
in any spectacular achievements over the fifty years of the country’s independence.

Any gains made therefrom are in a lopsided position with their failures. These shortcomings can be
grouped into two thematic areas: inadequacies of the law, and policy weaknesses. These areas shall be
critically analyzed in this Chapter in line with youth unemployment in Kenya.

3.1 INADEQUACIES OF THE LAW AND YOUTH UNEMPLOYMENT

The creation of employment in a society like Kenya depends on the strictness of the available legal
framework. Studies have shown that a unit increase in the employment protection legislation index
reduces wage employment by 0.17 percent.76

The negative coefficient implies that the stricter the employment protection legislation, the lower the
wage employment.77 The finding is consistent with theory since the higher the level of protection within
the labour market, the lower the level of flexibility or managerial discretion exercised by employers. This
76
Omolo 2010 (ibid note 1) 45.
77
ibid.

xxvi
leads to low levels of investment and employment expansion.78 This part therefore explores the strict and
deficiency nature of labour legislations in Kenya and how this causes youth unemployment.

3.2 GENERAL LABOUR LAW DEFICIENCIES

Firstly, the law has failed to envisage the evolving forms of employment, such as informal employment,
part employment, agency employment and self-employment. The wording of the Employment Act, 2007,
reveals an open bias towards the traditional ‘9am-5pm’ form of employment while ignoring the realities in
contemporary Kenya where most people have joined the informal sector. This want of legislation on these
dynamics of informalisation of labour has led to a productivity trap especially in the informal sector due to
the absence of institutionalized social protection mechanisms.

The foregoing historical analysis of the policy developments since independence leans more on the formal
sector of employment with no iota of consideration of the flooding informal labour market. The latter has
therefore remained unregulated thus demoralizing the desperate youth employee who has been ushered
into the labour market.

Secondly, the current law is preoccupied with an employment rather than work system. This point is not
an empty interest on semantics but, just as in the foregoing, has drastic consequences for the labour market
if ignored.

A difference between these terms is in the scope: while employment denotes formality in the job, work is
inclusive of the formal and informal sector. The law ought to be reformed to be more involved with work
rather than employment in order to afford all-round protection.

Thirdly, the current legal framework does not take into account the protection of employers against
wayward employees. It is trite to note that in this economy, it is often the employer that has the greater
bargaining power.

This notwithstanding, the current legal framework does little to protect the employer against a market
with high labour demand but little supply. Some of the protections offered to employees to the employer’s
detriment include the expansion of WIBA’s definition of dependent79, hence increases costs of
maintenance for the employer. Further, the provision of eight (8) years compensation in case of a

78
ibid
79
section 6 of WIBA

xxvii
permanent disability is also a major problem to the employer especially where the employee gets a large
salary.

Under section 6 of WIBA, a dependent includes the widow or widower of the employee; a child of the
employee who has not attained the age of eighteen years including a posthumous child , a stepchild and an
adopted child, adopted prior to the accident, but excluding a child who is married or who is self-
supporting; a parent, step-parent or an adoptive parent who adopted such employee if he adopted prior to
the accident or death; any other child of the employee; a brother, sister, half-brother, half-sister or parent,
grandparent, or grandchild of the employee; and any other person who at the time of the accident was
wholly dependent upon the employee for the necessaries of life.

It should also be noted that section 7 (1) of WIBA provides for compulsory insurance of employees. This
is rather unfortunate given that the premiums have increased to levels that threaten the survival and
competitiveness of industries in Kenya. The provision on the right to compensation80 also deprives
employers an equal protection of the law whenever an employee acts against set instructions.

Section 10 (4) thereof seems to condone an illegality by authorizing compensation for injury while the
employee is involved in illegal activities or contravenes the employer’s instructions. Besides, while
initially a beneficiary had to be a worker earning at least 33, 333 Kenyan Shillings a month, the current
Act accommodates all employees81, thus further increasing the costs for employers. The greatest burden is
therefore laid on the employer who have no option but to reduce the number of employees in order to bear
the outstanding cost of labour.

Fourthly, collective bargaining in Kenya is mainly centered on wage and other monetary issues with little
focus, if any, on other conditions of employment that would add towards improved welfare of workers and
their general productivity.82 Consequently, collective bargaining agreements impose greater labour costs
on employers and this limits youth employment creation.83

3.2.1 CONSTITUTIONALITY OF SECTION 45 (3) OF THE EMPLOYMENT ACT, 2007

Under this section, an employee who has been continuously employed by his employer for a period not
less than thirteen months immediately before the date of termination shall have the right to complain that

80
WIBA 2007, Part III.
81
ibid s 5.
82
Omolo (2010) note 1
83
ibid.

xxviii
he has been unfairly terminated. From the wording of this provision, any person who has not met the
thirteen months threshold has no locus to raise a claim of unfair termination of his/her employment.

This provision is, in my view, discriminatory and therefore unconstitutional in so far as it contravenes
Articles 22 (1)84, 2785 and 4886 of the Kenyan Constitution, 2010. Article 27 (1) accords every person equal
protection and equal benefit of the law, which includes full and equal enjoyment of all rights and
fundamental freedoms87 under the Constitution. While taking cognizance of the discrimination bounds
articulated under Article 27 (4), I wholly agree with Wilson J.’s definition of “discrimination” as it
explains the constitutionality of the above stated section. According to him, discrimination is distinction
which whether intentional or not but based on grounds relating to personal characteristics of individual or
group [which] has an effect which imposes disadvantages not imposed upon others or which withholds or
limits access to advantages available to other members of Society.88

Besides, when the Employment Act, 2007 was enacted, the 2010 Constitution was not in place and I can
confirm that the Repealed Constitution89 did not have as much a robust Bill of Rights as the 2010
Constitution and there would certainly be need for all labour laws to conform to it as expressly provided
under Article 2(4) thereof. In its preamble, the Employment Act, 2007, provides that it is an Act of
Parliament designed inter alia to “declare and define the fundamental rights of employees, to provide basic
conditions of employment of children, and to provide for matters connected with the foregoing.” It is
obvious to me that these objects cannot be satisfied when Section 45(3) as presently existing is left to
stand.

The constitutionality of section 45(3) of the Employment Act was a matter in issue in Samuel G. Momanyi
vs. The Hon. Attorney General and another90. Here, the Petitioner sought the High Court’s intervention
when his case on unfair termination was dismissed by the Industrial Court as he had not reached the
thirteen months work threshold provided for under Section 45(3) of the Employment Act. He had at the
time of termination of his employment worked for 11 months and 27 days.

84
This article provides that every person has the right to institute court proceedings claiming that a right or fundamental
freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.
85
This Article provides for equality and freedom from discrimination.
86
Under this Article, the State has the responsibility of ensuring access to justice for all persons and, if any fee is required, it
should be reasonable and should not impede access to justice.
87
Constitution of Kenya 2010, Article 27(2).
88
Andrews v Law Society of British Columbia (1989) I SCR 321 (Wilson J).
89
Constitution of Kenya 1969.
90
High Court Constitutional & Human Rights Division Petition No 341 of 2011, May 18th 2012 (Leonola J).

xxix
 He sought a declaratory order from the High Court that his constitutional right to a fair labour practice91
and other rights as under Articles 28, 47, 48 and 51have been violated. Leonola J. held that section 45 (3)
was unreasonable and had the opposite of what the objects of the Employment Act had been intended. The
law was oppressive to that extent and the Section was declared a nullity to the extent of its inconsistency.

Even after being declared void, no steps have been undertaken to amend the provision in accordance with
the 2010 Constitution. It still remains the law and the resultant burden is laid on the employee who has a
low bargaining power in the eyes of the employer. Those who may suffer most are the youth whose
performance in the job market does not fit the standards set by most employers. Once their contract of
service has been terminated before the completion of the thirteen months under section 45 (3), they cannot
invoke any other provision of the law to sustain their claim. It is therefore my recommendation that this
provision should be amended to cover any situations of unfair termination and further accord to Article 22
of the Constitution on the locus standi.

3.3 MINIMUM WAGE REGULATIONS AND YOUTH UNEMPLOYMENT

3.3.1 THE SITUATION OF KENYA
The system of wage determination in Kenya is not in tandem with the employment creation priorities
enunciated under the Grand Vision 2030. It is mainly magnified by minimum wage regulations,
administrative and collective bargaining approaches; which introduce elements of rigidity within the
labour market, thereby dampening the responsiveness of the country’s level of employment to the wage
rates. The basic law from which all wage orders ooze is the Labour Institutions Act (Cap 294)92 Part IV of
which establishes wage councils.93 These councils are mandated to investigate the remuneration and
conditions of employment; and make recommendations to the Cabinet Secretary on minimum wages
remuneration and conditions of employment.94

In the performance of their functions, the councils are required to consider inter alia: (a) the needs of
employees and their families, taking into account the general level of wages in the country, the cost of
living, social security benefits and the relative living standards of other social groups; (b) the economic
factors, including the requirements of economic development, levels of productivity and the desirability of
attaining and maintaining a high level of employment and the need to encourage investment; (c) the ability
of employers to carry on their business successfully; (d) the operation of small, medium and micro
91
Constitution of Kenya 2010, Article 41(1).
92
Labour Institutions Act (Cap 294) No 12 of 2007.
93
ibid s 43(1).
94
ibid s 44

xxx
enterprises; and (e) the likely impact of any proposed conditions of employment on current employment or
the creation of employment.95

There are two main wage councils: general and agricultural. The Cabinet Secretary may however establish
an additional council called “sectorial wages council” if he or she is of the opinion that: the remuneration
and other conditions of employment of any category of employees in any sector is not adequately
regulated by collective agreements; and it is expedient to set minimum wages and other conditions of
employment in respect of employees in those sectors.96 Agricultural wage grids apply to agricultural
employees while general wage orders apply to workers in other activities.97 For instance, per the Legal
Notice Number 196 of 2013,98 the minimum wage for an unskilled employee (agricultural industry) is
Kshs. 4,854.3599while that of a general employee – inter alia the cleaner, sweeper, gardener, children’s
ayah and house servant – stands at Kshs. 9,780.95100 This wage limit fits the classical economists’
argument as it translates into a higher cost of labour on the part of the employers thus making some of
them to prefer children employees who do not have responsibilities that may call for a higher pay.

3.3.2 THE LINK TO YOUTH UNEMPLOYMENT

In view of the above wage orders, there are three issues which explain how minimum wage regulations
hamper employment: first, whether the factors provided for under Section 44(5) are usually considered;
second, whether the enforcement mechanisms are sound; and third, whether the above minimum wage
orders fill the wanting Kenyan youth unemployment lacuna. The response to the first issue is in the
negative. The basis for this is that if indeed the government had intentions of encouraging investments and
economic development, then it could not have come up with such rigid policies that double the cost of
doing business. Investor business is the hub of employment for the Kenyan youth and a platform should
always be provided for its survival.

As regards the second issue, it is a common parlance that minimum wage laws in Kenya suffer from
inadequate enforcement and hence may not effectively meet the set objectives. Omolo and Omitti (2004)
indicate that even the government itself does not adhere to the minimum wage regulations.101 A number of

95
ibid s 44(5).
96
ibid s 43(2).
97
ibid; see also Andalon 2008 (n 171) 4.
98
ibid (n 16).
99
ibid (n 17).
100
ibid (n 18).
101
Andalon 2008 (n 171) 16; see also Omolo J O and John M Omitti, “Is Minimum Wage Policy Effective in Kenya?” (2004)
Institute of Policy Analysis and Research Discussion Paper No 054/2004.

xxxi
reasons may be behind my position. On the one hand, the existence of many different categories of
minimum wages makes it very difficult for workers and firms to know them.102 On the other, minimum
wages are set at levels that are high in relation to the median wage –especially for semiskilled and more
skilled occupations.103 Finally, the classification of occupations used for the minimum wage is outdated
implying that many occupations may no longer be adequate for the requirements of today’s labour
market.104 there are many reasons why labour supply may be inelastic with a wage fixed above the market-
clearing rate. For example, trade union power, efficiency wages, and rent-sharing may all lead to
situations in which it is in the employer’s interest to maintain its wages above the equilibrium rate. The
same is not true in the informal sector where wages are assumed to be very elastic.

Concerning the third issue, it is the position of the author herein that minimum wage limits may be a great
barrier to the enforcement of Article 55 of the Constitution, 2007. While the government’s aim is to help
young workers, decades of economic research show that such minimum wages may end up harming them
and the broader economy.105 There is no “free lunch” in this case.106 The employers are likely to make
adjustments to pay for the added costs, such as reducing hiring, cutting employee work hours, reducing the
benefits accorded to employees, and charging higher prices. Some policymakers may believe that firms
simply absorb the costs of minimum wage increases through reduced profits, but that’s seldom the case.
Instead, most businesses rationally respond to such mandates by cutting employment and making other
decisions to maintain their net earnings. These behavioral responses usually offset the positive labour
market results that the policymakers are hoping for.

Further, the wage regulations do not provide complete cover on all sectors. This is despite the well-known
influx of many youths in the informal sector which is often considered a good alternative towards solving
the unemployment menace. Jones (1997)107 explains that the introduction of a minimum wage raises the
wage in the formal sector and creates an excess supply of labour to the formal sector. Because labour
supply is completely inelastic108, no workers shift into informal sector employment and unemployment

102
ibid.
103
ibid.
104
ibid.
105
Mark Wilson, “The Negative Effects of Minimum Wage Laws” (2012) CATO Institute Policy Analysis No 701/2012, 1.
106
ibid.
107
Jones Patricia, “The Impact of Minimum Wage Legislation in Developing Countries where Coverage is Incomplete” (1997)
Centre for the Study of African Economies, Institute of Economics and Statistics University of Oxford Working Paper No
WPS/98-2, 4(Jones 1997).
108
ibid

xxxii
emerges among formal sector workers.109 Consequently, minimum wage legislation has little impact 42 on
workers in the informal sector. Unlike the case of perfect labour mobility, the entire brunt of the
legislation falls on the shoulders of workers in the formal sector who experience a rise in unemployment
and hence scamper to the informal sector.

3.3.3VALUE ADDED TAX ACT, 2013: AN ILL-INFORMED ACTION.

Any policymaker or legislator worth of reputation would not do anything that increases the cost of life for
the poor masses and widens the number of people living under abject poverty. Basic policy formulation
demands that some thinking must be invested in examining the long-term and short term effects of a
proposed policy or law on the general population and its intended beneficiaries. A law that negatively
affects the ordinary citizens in the short and long-term does not qualify as a law and must be entirely
dispensed with.

In a nutshell, the recent enactment of the VAT Act, 2013, may be seen by a few as an ideal step towards
realizing more revenue, but its negative impacts, in my view, outweigh the much intended purpose110. The
great impact will be felt by the youth who largely depend on technological innovations and other modern
avenues of economic reliance which are now subject to the 16% standard rate. For example, under the
repealed VAT Act, ICT equipment’s were zero-rated111, and in return, thousands of young Kenyans
ventured into technology-related entrepreneurship, including e-business. These milestones were already
sorting the perennial headache of youth unemployment in this country. With an introduction of VAT
charges on ICT equipment, including cell phones, these digital milestones will be reverted as more young
people will not be able to afford the increased prices. And the net effect! They will resort to criminal
activities to earn a living thus worsening the already fragile security situation in Kenya. Again, Kenya’s
journey toward a digital migration will be greatly hampered.

For instance, by imposing a 16% charge on the already exorbitant cost of electricity112, most investors will
find Kenya too expensive to do business in, and opt to try other locations with cheaper or affordable

109
Jones (1997) ibid note 190
110
Understandably, the Act seeks to limit exemptions and zero ratings so as to expand the tax base and address the refund
claims challenges that resulted from the repealed VAT Act. Other targeted challenges are: high procedural and administrative
costs in regard to managing high frequency tax filing and processing refund claims; and lack of clarity due to several
amendments the VAT law, for example on the treatment of cross-border services
111
See VAT Act 1993 (Kenya), Part B of the Fifth Schedule – zero rated goods.
112
Under Part A of the Fifth Schedule of the VAT Act 1993 (Cap 476 Laws of Kenya), the supply of electrical energy to a
domestic household where the consumption did not exceed two hundred kilowatt-hours was zero-rated.

xxxiii
energy costs.113 Foreign direct investment will be affected and the projected income from such investors,
to the country will be immensely diminished.114 With the loss of these investments, the technological and
skill transfer and employment opportunities will be lost too. This means that, while trying to move ten
steps forward, Kenya will have taken a thousand steps backwards.

Because VAT is a regressive tax system, the high tax charges may also translate into reduced consumption
rate on the basic goods. There will be reduced sales by the retailers and producers, with a net effect of
reduced income on their part and translating to reduced tax to the government.115 This will directly affect
the country’s projected economic growth and create massive unemployment as producers will have to lay
off workers due to reduced income/profits. A higher unemployment rate to a population that already has
over 70% of the employable population as unemployed is totally undesirable

3.4 EMPLOYMENT POLICY WEAKNESSES

Firstly, many policies on labour have not been implemented by the Executive. Where implementation has
been attempted, it has not been all inclusive to enlist the participation of relevant stakeholders. There has
also been a lack of a solid institutional and legal framework to force the required impetus in the
implementation. This ineffectiveness in implementation can also be attributed to a poor link between the
Government and educational institutions and the private sectors to ensure that those who exit training
institutions have employable skills. Besides, the implementation of some policies such as SAPs has not
been effective as they do not fit the economic needs of Kenya. While one of the main aims of the SAPs
was to rationalize and reduce government's expenditure, the government found it difficult to do so without
worsening human misery.116 The SAPs were linked to stagnation in real per capita income growth, which
was mainly associated with increasing poverty and unemployment and was related to the upsurge of the
"culture of violence" and the deviance and crime rates in Kenya, particularly of violent crimes.

Additionally, proper policy implementation process requires a strong legal and institutional setting which
is lacking in most policy blueprints established by the Government. For instance, hitherto the enactment of
the Employment Act (2007) and Labour Institutions Act (2007), the NEB only relied on the Legal Notice

113
<http://punditmusings.wordpress.com/2013/09/06/kenyas-vat-act-2013-is-akin-to-vasco-da-gama-era-thinking-and-has-
no-place-in-modern-kenya/>last accessed 5th April 2020
114
ibid.
115
ibid.
116
The Cabinet Minister for Education and other stakeholders have always advised that students who are left out by the
Secondary school cut-off points should join polytechnics in order to do basic tertiary courses like tailoring, carpentry and
masonry.

xxxiv
No. 156 of 1977, which made it compulsory for all employers to report vacancies.117 The legislation did
not, however, bestow any power on the employment officers to facilitate execution of their registration
and placement mandate.118 Thus, the NEB would only get employers to affirm vacancies and terminations
through moral persuasion.119 The legislation was hardly enforced by government nor adhered to by
employers. Similarly, the NEB continues to suffer from human, financial and physical resources capacity
limitations, with considerable impact on the effectiveness of their services and outreach. Coupled with this
is the unavailability of national skills and industry demands database.120

Secondly, as part of the Executive, most labour institutions121 have been used by the political
establishment in place to develop policies that further political agenda irrespective of the lack of
practicability in implementation. An example is the hurried salary settlement drawn by the Wages Council
at the behest of then-President Moi who wanted to appease the disgruntled teachers who had conducted a
month-long industrial action. This settlement was impossible to implement and facilitated another lengthy
strike thirteen years later. To prevent such situations, the law governing these institutions must be
reformed to provide them with unequivocal independence to the extent of effective implementation of
their tasks.

Thirdly, some policies established by the government were very uncertain and fared no better in
combating the unemployment problem. For instance, emergency employment policies such as the
tripartite employment frameworks pursued by Kenya in 1964, 1970 and 1979 are highly unpredictable and
unsustainable means of employment creation.122 This is because such policies only tended to “force” rather
than facilitate employment creation. The Kenyanisation policy itself did not result in creation of new
employment opportunities but was a mere realignment of the job holders.123 Overall, growth occurred
without sufficient employment being created.124 Further, the Jua Kali programme which has persisted for
long is characterised by labour market insecurity such as low job tenure, absence or weak enforcement of

117
Rono 2002 (n 118)
118
Omolo 2010 ibid (n 1) 17.
119
ibid.
120
ibid.
121
ibid.
122
Inter alia the National Labour Board, the Labour Administration and Inspection, the Industrial Court and the Wage Council;
see the Labour Institutions Act of Kenya 2007.
123
Omolo (2010) above 15.
124
ibid.

xxxv
core labour and employment regulations, weak framework for social protection and high levels of
employment flexibility.125

Fourthly, the KKV policy typically deals with casual rather than permanent employment. The nature of
casual employment does not enable youths to enjoy the fundamental rights of workers such as freedom of
association and collective bargaining, right to paid leave (sick, maternity and annual leave), and the right
to social protection as provided under the National Social Security Fund (NSSF) and the National Hospital
Insurance Fund (NHIF).126 This revelation contrasts sharply with the country’s desire to reduce poverty
and enhance social protection. On the whole, the casual relationships between employers and workers
have impaired labour relations, gnarled worker protection and transferred additional responsibilities, such
as social and trade union protection, job security, and wage negotiations to the worker.127 This leads to
lack of motivation and increases skirting, which decreases effort.128 This partly explains the determinedly
low levels of labour productivity and enterprise competitiveness.129

Fifthly, the some policy interventions in Kenya are curative in nature. They have always attempted to
identify who and where the unemployed are and tried to deal with their problem. This essentially means
treating the symptoms of unemployment and not its causes. A preventive mechanism should be invented.

Sixthly, the corruption cancer has also seriously hampered implementation process. For example, a 2012
World Bank report revealed that the amount of money lost through corruption-related deals could pay
salaries for about 253,000 workers, almost equal to the number of fresh graduates unable to find jobs
every year.130 For example, an unnamed job seeker was recorded saying:

When I met he employer, he told me point blank that the salary for the position was 30,000 shilling, but
for me to get the job, I had to first give him Ssh10, 000. I did not have even Sh1000- I had borrowed
money for fare.131

Efforts to persuade the employer to give him the job and deduct the Ksh10, 000 from the salary at the end
of the month were fruitless and the job seeker went home disappointed.132 In addition, in the KKV
125
ibid.
126
ibid 30.
127
ibid.
128
ibid.
129
ibid.
130
<http://www.standardmedia.co.ke/?articleID=2000073294&story_title=Kenya-Corruption-sucks-out-250,000-jobs> last
accessed 12th May 2014.
131
ibid.
132
ibid.

xxxvi
Program, it was claimed by the supposed beneficiaries that the wages that they were to receive were
unlawfully diverted to other persons, hence the colloquial phrase: kazi kwa vijana, pesa kwa wazee (it is
the youth who work but it is the politically connected elite who receive the payment). The corruption
squabbles that marred the implementation of the YEDF cannot be left out.

3.5 CONCLUSION
The foregoing analysis of the labour regulatory frameworks in Kenya reveals a range of challenges. Such
challenges exist at every conceivable level including the formulation of the content of the law in
regulating the labour market to its ultimate implementation. The prime picture of youth unemployment
still prevails with a wide socioeconomic gap. Most employment sectors are a pit of corruption which has
often manifested itself in the nature bribes. Young people already know that they must prepare their
pockets before they face the wanting job market. The employer’s “mouth” is wide open, waiting for a coin
to swallow. Evidence indicates that the public service sector is the lead singer of this song of bribery. How
can the labour machineries be implemented? Even the recent Uwezo Fund drive that has been praised by
many might not effectively work if such challenges will not be countered. In spite of this, it is evident that
improvements are still warranted at various areas of implementation.

CHAPTER FOUR: YOUTH UNEMPLOYMENT IN ADVANCED EUROPE, COMPARATIVE

ANALYSIS

4.0 INRODUCTION: YOUTH UNEMPLOYMENT IN UNITED STATES.

Even though the number of young people with a postsecondary credential or college degree is on the rise
in United States, the same cannot be said for youth employment, as many struggles to secure a job. Youth
unemployment in the United States currently stands at 16.3%, an unacceptable figure, made even more
dismal when including those who are currently working in jobs that do not make full use of their skills and
abilities—commonly referred to as the “underemployed.” According to a recent report by the youth

xxxvii
advocacy organization Young Invincible, youth unemployment is costing American taxpayers $25 billion
annually.133 The united states youth advocacy organization suggested four ways to reduce these numbers:

Increase student exposure to jobs that are in demand—as well as providing a better understanding of
industry needs. This increases the likelihood that young people will find careers that suit their interests
while making best use of their skills. Imagine if students were encouraged to explore several careers
before and during college through internships, apprenticeships, job shadowing, or classroom-based
community projects. In a 2013 report released by the American Association of Colleges and Universities,
78% of employers said that completing “an internship or community-based field project to connect
classroom learning with real-world experiences” has the potential to help students succeed.

Postsecondary partnerships. Some colleges and universities have started to provide students with real-
world applications. For instance, the University of Oregon’s Sustainable Cities Initiative partners students
with business leaders and local government officials to create business plans and solutions to real
problems in sustainability, transportation, infrastructure, and city planning. The Sustainable Cities
Initiative is now taking place in 11 states, doing their students a great service by proactively connecting
them with work experience.

Industry-focused skills programs for students. There are many industry-focused programs that use
innovative practices to connect students to employers at an earlier stage of the job search. In addition,
companies such as Modern Technology Council and General Assembly work with young people after they
have completed their formal education to sharpen the skills needed to be viable job candidates in the
industry of their choice.

Better align workforce demand with college instruction. Business leaders play a critical role in
communicating which skills are in demand and necessary for success in today’s workforce. By using data
more effectively to inform recruiting practices, industry leaders can implement feedback mechanisms for
institutions to ensure curricula and instruction is applicable for today’s job market.134

133
Sarah Ayres, "America’s 10 Million Unemployed Youth Spell Danger for Future Economic Growth," The Center for American
Progress, June 5, 2013. <http://www.americanprogress.org/issues/economy/report/2013/06/05/65373/americas-10-million-
unemployed-youth-spell-danger-for-future-economic-growth>
“Generation Jobless,” The Economist, April 27, 2013.
134
ibid

xxxviii
4.1 THE U.S. DEPARTMENTS FOR YOUTH EMPLOYMENT POLICIES.
The U.S. Department of Labor is the sole federal agency that monitors child labor and enforces child labor
laws. The most sweeping federal law that restricts the employment and abuse of child workers is the Fair
Labor Standards Act (FLSA). Child labor provisions under FLSA are designed to protect the educational
opportunities of youth and prohibit their employment in jobs that are detrimental to their health and safety.
FLSA restricts the hours that youth under 16 years of age can work and lists hazardous occupations too
dangerous for young workers to perform. Enforcement of the FLSA's child labor provisions is handled by
the Department's Wage and Hour Division.

The Department for “Youth Rules”. Is an Initiative which seeks to promote positive and safe work
experiences for young workers.

The Office of Disability Employment Policy (ODEP) offers numerous resources for youth. ODEP's focus
on youth policy is aimed at improving transition outcomes of youth and young adults with disabilities
toward successful employment and adulthood.

Youth joblessness surged in the United States and around the world following the global financial crisis—
a trend that shows little sign of easing. The result is an economic, social, and security time bomb that
threatens not only the quality of life for the millennial generation but for us all.

Today, more than 16% of America’s youth are jobless, a rate double that of adults.135 For many of them,
unemployment is chronic, and the ill-effects are long lasting. Jobless young people lose out on critical
skills and social network development, earn significantly less over their careers than their employed peers,
and strain public welfare programs.136

Without employment income, young people cannot pay off the staggering U.S. student debt, help sustain
our deeply strapped Social Security and Medicare systems, or contribute to their own retirement savings
that rely on early-year contributions to accrue returns. Moreover, the mix of high debt and joblessness fans
disillusionment and frustration with our political and economic system, making the American dream seem
more like an illusion and imposing huge societal costs. They include depriving our country of youth’s
energy, fresh perspective, and inherent inventiveness.

135
Sarah Ayres, "America’s 10 Million Unemployed Youth Spell Danger for Future Economic Growth," The Center for
American Progress, June 5, 2013. <http://www.americanprogress.org/issues/economy/report/2013/06/05/65373/americas-
10-million-unemployed-youth-spell-danger-for-future-economic-growth>
136
“Generation Jobless,” The Economist, April 27, 2013. <http://www.economist.com/news/international/21576657-around-
world-almost-300m-15-24-year-olds-are-not-working-what-has-caused>

xxxix
Youth idleness is hardly just an American phenomenon. The Economist reports that nearly one-quarter of
the world’s youth is either not employed, in training or in school.137 Indeed, youth unemployment is on the
rise in 138 countries. In parts of Europe still struggling to escape the continent’s economic malaise, youth
unemployment tops 50%, with similarly appalling rates in some of the world’s most vulnerable security
hotspots.

These conditions are more than sad—they’re dangerous. Studies show that teenagers who are neither
working nor in school are more susceptible to criminal behavior, violence, and delinquency.138 On the
international stage, economic hopelessness is a major driver in the instability gripping the Middle East and
North Africa, where youth bulges are creating a toxic economic and security dynamic in which radical
ideologues and insurgents seek to exploit large numbers of needy and disgruntled youth.

4.2 YOUTH UNEMPLOYMENT IN ADVANCED EUROPE

Youth unemployment has surged in Europe during the global crisis, and is at historic highs in many
countries. Several papers have highlighted the deleterious consequences of high youth unemployment.
These include the impact of “scarring” that leads to a lower probability of future employment and/or lower
wages, which has been found to be persistent High levels of youth unemployment have been shown to
erode social cohesion and institutions139 and foster crime). In addition, young unemployed workers may
have a higher propensity to relocate abroad because of lower “sunk costs” and greater potential for
education and, subsequently, work abroad. The outward migration of the youth combined with the general
ageing of the population may lower the potential output of the euro area since a significant share of the
outward migration is to countries outside the euro area (OECD, 2013a). High youth unemployment and an
outward migration of younger members of the workforce could also undermine the sustainability of
spending on social safety nets in euro area countries, which is of particular concern given their
demographic challenges.

In response, specific policies have been formulated at both the European Union (European Commission,
2012 and 2013a) and national levels to deal with youth unemployment. The most notable examples are the
EU’s Youth Guarantee Scheme, aimed at ensuring that all young people get a job offer within four months
of leaving formal education or becoming unemployed, and the Youth Employment Imitative, aimed at

137
Ibid.
138
Hanan Morsy, "Scarred Generation," Finance & Development, 49.1, March 2012.
<http://www.imf.org/external/pubs/ft/fandd/2012/03/morsy.htm>
139
Giuliano and Spilimbergo, 2009; Altindag and Mocan, 2010; ILO, 2013),

xl
supporting active labor market policies for young people not in education, employment or training in
regions with high youth unemployment. Policies at the national level include, for instance, Italy’s July
2013 measures to support youth unemployment, including tax breaks for employers hiring under-30s on
permanent contracts, and the increase in training, apprenticeship and internship schemes. Such policies
aim to smooth the job-searching process and promote youth employment.

4.3 FACTORS AND TRENDS IN YOUTH UNEMPLOYMENT IN ADVANCED EUROPE

The first step in elevating youth employment in United States to a bona fide national mission is to arouse
America’s unrivaled passion and iron will. In applying this resolve, U.S must be guided by the
understanding that this critical mission is not the responsibility of government, business, or academia
alone. It requires mobilizing a grand “whole of society” partnership to execute a smartly orchestrated
campaign—one centered on igniting economic growth. Some of the central factors in this nationwide
initiative include:140

Fostering Growth: By some estimates, the economy will need to expand by 3% to 4% every year in order
to re-employ the millions of people tossed out of work by the Great Recession and accommodate the
150,000 young people who enter the U.S. job market every month. This level of growth is twice the
average attained during the past four years.141

Achieving such thresholds must be private sector-driven and empowered by policies and practices that
catalyze job-creating investment, entrepreneurship, and business expansion. These include reasonable tax
rates, sensible regulations, ample access to affordable finance, plentiful energy, strong infrastructure, and
a culture of innovation—all of which require major national initiatives to achieve. New job creation
dominated by the public sector is an unsustainable palliative. It drives up the already overwhelming cost
of government that taxpayers—and a large cadre of idle workers—are increasingly unable to finance,
further eroding our economic fundamentals. But little growth—much less the 4% minimum necessary—
can be achieved or benefit young workers unless they possess the basic tools demanded in the modern
workplace.

140
The Springboard Project, Getting Ahead-Staying Ahead: Helping America’s Workforce Succeed in the 21st Century, The
Business Roundtable (December 2009): 11. <http://businessroundtable.org/uploads/studies-
reports/downloads/BRT_Getting_Ahead_online_version_1.pdf>
141
Bernard Baumohl, The Secrets of Economic Indicators: Hidden Clues to Future Economic Trends and Investment
Opportunities. New Jersey: Pearson Education, 2008, 32.

xli
Closing the Skills Gap: Bridging the skills gap begins with transforming our elementary and secondary
school systems and centering on one clear goal—academic excellence. This will require: adopting higher
expectations of our educators, students, and parents; increasing school competition, collaboration, and
accountability to drive performance; modernizing curricula to develop uniquely human capabilities and
critical thinking needed in the age of automation; seeing education as a continuum that leads to the
workplace; advancing best teaching and learning practices; and constantly improving the quality in
teachers.142

Improvement will require an approach that better aligns job training programs with local and regional
work opportunities. This can be accomplished by utilizing community colleges to provide vocational and
specialty training that is coordinated closely with local/regional employers, civic organizations, and
economic development agencies.

Encouraging flexibility and mobility: The International Monetary Fund has reported the strong ill-
effects that labor market inflexibility (notably, hiring and firing regulations that increase the cost, hassle,
and risk of employing) has on reducing employment opportunities.143 Policymakers need to work with
employers and workers to remove impediments to job creation. Rapidly evolving markets require flexible
employers and workers and greater mobility among the workforce to fill opportunities where they arise.
This places a premium not only on minimizing obstacles to hiring but on fostering the portability of
benefits, including pensions and healthcare.

Providing mentoring: America’s young people are independent, entrepreneurial, creative, and ambitious.
Their talent and innovative prowess are needed. They want to make a difference and govern their own
destiny. The information and communication technology (ICT) revolution—which young people
understand well—is transforming the culture and economy.

Driving accountability and organization: Not all of the essentials for putting youth back to work fall on
laws, policymakers, businesses, and institutions. Much of the responsibility rests in the hands of young
people themselves and their families, such as through developing a commitment to hard work, a devotion
to excellence, an appreciation for the dignity of labor, and greater humility. Popular culture tends to

142
ibid
143
Lorenzo E. Bernal-Verdugo, et al., “Labor Market flexibility and Employment: New Empirical Evidence of Static and Dynamic
Effects,” International Monetary Fund, 2012.

xlii
denigrate honest, entry-level work and create unrealistic expectations of instant success and its
trappings.144

Getting real must be accompanied by getting organized. Unlike older Americans, young people do not
have the same powerful voice and organized advocacy in the halls of power. Even though Millennials
seem averse to organized associations, perhaps it’s time for the American Association of Retired People
(AARP) to be joined by the creation of an American Association of Aspiring Taxpayers, which could
watch over the millennial generation’s interests

144
Secretary Arne Duncan, “Secretary Arne Duncan's Remarks at OECD's Release of the Program for International Student
Assessment (PISA) 2009 Results,” U.S. Department of Education, 2010. <http://www.ed.gov/news/speeches/secretary-arne-
duncans-remarks-oecds-release-program-international-student-assessment->

xliii
CHAPTER FIVE: SOCIO-ECONOMIC REALITIES ASSOCIATED WITH YOUTH
UNEMPLOYMENT

5.0 INTRODUCTION
Rising unemployment takes a heavy toll among young people who are particularly vulnerable to shocks in
the labour market. Lay-offs, restructuring and insufficient opportunities to enter the world of work
condemn many to a life of economic hardship and despair. We have seen, all too often, the tragedy of
young lives misspent in crime, drug abuse, civil conflict and even terrorism.145 The above commentary by
the former UN Secretary General, Kofi Annan, replicates the reality that surrounds the unemployed youth
and the contemporary society at large. This is preferably manifest in most developing countries across the
globe. The chronic impacts exerted on such economies remain unanswered. Whereas there are other
imperative alternatives to socio-economic developments, most developing states often consider the “new
muscle” as the steering force of development. According to ILO, young people bring energy, talent and
creativity to economies that no-one can afford to squander. Around the world, young women and men are
making important contributions as productive workers, entrepreneurs, consumers – as members of civil
society and agents of change. What our young people do today will create the foundations for what our
economies will do tomorrow.146

It seems unlikely that the Kenyan youths will be able to fulfill this role in the face of their importunate
unemployment status if no proper measures are taken. Furthermore, the acute socio-economic frustrations
that follow their way are quite wanting and stressful. Young as they may be, suicide 147 is often inseparable
from them. To some of them, the word “hope” remains a myth. Any leeway that appears before them, its
legality notwithstanding, is the only alternative for their survival. In other words, social defiance has
completely inscribed their lives to a point of no overhaul. Day by day they wait for a response from the
government in vain.

145
In-depth: Youth in Crisis: Coming of age in the 21st Century. “AFRICA-ASIA: The disinherited: the scourge of youth
unemployment and failed education, IRIN, A commentary by the former UN Secretary-General, Kofi Annan, on the challenges
and risks of youth unemployment for livelihoods and security in developing countries in 2003.
Available at <www.irinnews.org/indepthmain.aspx?InDepthID=28&ReportID=69977>
146
ILO (2011) “Youth Employment: A Global, National Challenge” – Quoted in “Youth Unemployment Challenge and Solutions:
What Business Can Do Now” Manpower Group.
147
See Emile Durkheim, Suicide (George Simpson ed, John A & George Simpso trs, The Free Press reprint 1897) ISBN
0684836327; According to Durkheim, suicide is categorised into three types: egoistic, altruistic, and anomic. Anomic suicide is
generated through economic despair and social disintegration.

xliv
This Chapter therefore brings forth the main social and economic squabbles attendant to the youth
unemployment situation in Kenya. In particular, the chapter proffers that addressing youth unemployment
will reduce the tide of deviance that has absorbed young people and hence foster rapid development in
Kenya. The core concern herein is the impact of youth unemployment in Kenya. The chapter is largely
informed by Durkheim’s anomie theory that explains the societal effects of division of labour.

5.1 YOUTH UNEMPLOYMENT AND THE SOCIAL REALITIES

rkheim (1897)148 in his sociological viewpoint perceives society as a kind of ‘social integration’ which
disorients as a result of social collapse, and economic despair and disaster.149 It is thus worth noting that
youth unemployment is the direct cause of economic depression that further spurs other social problems
such as discussed herein.

5.1.1 CRIME: A THREAT TO NATIONAL SECURITY

In my view, youth unemployment is by and large a social peril in Kenya and constitutes a threat to
national security. This situation rhymes with Durkheim’s anomie theory150 and other literatures on the
global security effects of youth unemployment. For instance, Durkheim believes that specialized division
of labour and the rapid expansion of industrialized society contain threats to social solidarity.151 He posits
that without strict regulation of the activities of that society, individuals cannot find their place and have
difficulties in adjusting to the changing conditions of life.152 This in turn leads to dissatisfaction,
frustration, conflict and deviant behaviors.153 In other words, without proper regulation of the “wanting”
labour, the unfortunate people who do not find space become rebellious.

Besides, Choucri 154 argues that high unemployment among educated youth is one of the most
destabilizing and potentially violent socio-political phenomena in any regime.155 He stresses that the high
number of jobless youths experience low self-esteem, deprivation, frustration and acute want to the extent
of being manipulated to undermine national security and cause disorder. This unceasing condition has led

148
ibid.
149
Nazir F, Cheema A M, Zafar I M, and Batool Z, (2009), “Socio-economic Impacts of Unemployment in Urban Faisalabad,
Pakstan” (2009) 18(3) J Soc Sci 183-188
150
Durkheim E, The Division of Labour in Society (New York, Free Press of Glencoe 1964)
151
Adebayo (2013) ibid note 44.
152
ibid.
153
ibid.
154
Choucri Nazli, Population Dynamics and International Violence: Propositions, insights and evidence (Lexington, Mass DC
Health 1974)
155
ibid 73.

xlv
them to deviant behaviors in the society. The core of these behaviors is crime which, according to
Onoge156, is a threat to the fabric of society. This has resulted to palpable fear among the Kenyan populace
as security of lives and properties is tentative.

Criminal activities such as terrorism, robbery, kidnapping, political hooliganism, militancy and other
social vices found among the jobless youths have contributed greatly to the slow pace of economic
expansion in Kenya. The high rate of crime is evidenced per the high number of young people in the
Kenya Prisons. In particular, about nine out of ten prisoners157 in Kamiti Prisons are young people who
have been absorbed into the criminal system and cannot be easily reverted; crime has become part of their
lives and is therefore odd to rehabilitation. 158On my visitation of the said Government Prisons during my
internship at Milimani Law Courts Probation Department, I realized virtually all prisoners are young
people aged between 18 and 35 years. Most of them are associated with crimes such as robbery with
violence, kidnapping and theft. This was a replica of the number of youths in Kisii Government Prisons.

Foremost, youth unemployment is the most efficient recruiter of urban gangs and criminal organisations
such as Munginki, Al Qaeda and Al-shabaab. According to Lia159, the socioeconomic problems associated
with youth bulges provide viable grounds for recruitment of youths to terrorist groups. Similarly, Urdal160
argues that where young people are left with no option but unemployment and the incidental poverty, they
are more likely to join rebel groups as an alternative way of generating income.161 Some groups such as
Mombasa Republican Council (MRC) emerge in the disguise of fighting for “their rights” in order to
facilitate crime. The dominant number of members is the idle youth who have no option but to loot for
survival.

5.1.2 YOUTH UNEMPLOYMENT AND “SEXPRENEURSHIP”

The phrase “Koinange Street” is well known all over Kenya and, to some extent, abroad. The main
characteristic associated with it is the influx of commercial sex workers, particularly during the latest
hours of the night. The situation in Mombasa is different. Many “expert” sex workers have established
brothels in most “murky” points of this tourist hub, particularly adjacent to the hotels and lodges.
156
Onoge O O, “Crime and Control in Nigeria: The Problem of Robbery in Ukwu” (1988) Dimensions of Social Problems in
Nigeria, Kuru: NIPSS
157
ibid
158
Lia B, Globalisation and the Future of Terrorism: Patterns and Predictions (London and New York, Routledge 2005)
159
Urdal Henrik, “A Clash of Generations? Youth Bulges and Political Violence,” (2012) United Nations Department of
Economic and Social Affairs, Population Division Expert Paper No 2012/1
160
ibid 2.
161
Howell Jayne, “Economic and Social Obligations of Women Street Prostitutes in Southern Mexico” (2003) California State
University – Long Beach Working Paper #278

xlvi
 A number of young and strong women have found their lives into such brothels, not because of their own
wish, but because of circumstances. The intrinsic logic may sound mythical but it remains the reality.

Most of them insist that their primary impetus for such “business” is economic rather than deviant.162 They
are often faced with a stark choice between abject poverty and 56 prostitution.163 Some of them boldly
reject suggestions that they enjoy prostituting, and ardently state that they would work at different jobs if
these generated the same income as prostitution. Lacking the opportunity for employment in industry, they
point to the skimpy salaries earned by women working as maids and cooks, whose skill levels are akin to
their own and whose wages are at or below poverty levels.164 They tersely attribute their unusual
circumstances to a lack of formal education and a stable labour market. Most of them constantly say that
lack of formal education limits chances of finding jobs generating similar earnings. According to Jane [not
her real name], [h]ouse help is very badly paid. I used to go around and wash people's clothes. But at the
end of the day they give you 150 KES ($ 2), which is nothing. So you have to look for other ways to pay
rent and buy clothes.165

As stressful as the life of a streetwalker can be at times, many women remain at this job for years, and
even decades.166 However, despite the independence and “satisfaction” they demonstrate in these areas, the
women consistently indicate their displeasure with prostitution in a number of ways. They frequently
describe their lives as fraught with the potential for violence and disease, and speak of the daily struggle
for economic solvency. In this sense, prostituting is for these women a type of obliging need and,
ultimately, of survival.167 For instance, during an interview, Julia [not her real name], 17, from Mtwapa
said:

Two nights ago, I was with a ‘mzungu’ [white] man in a local bar. He was buying me drinks and we
eventually agreed that I would go back to his place. We had already agreed a price, but after I had sex with
him, he refused to pay me. He said that he had been buying men drinks, and that was my payment. When I
challenged him, he beat me.168
162
ibid.
163
ibid 10; see also Murphy Arthur and Alex Stepick, Social Inequality in Oaxaca: A History of Resistance and Change
(Philadelphia, Temple University Press 1991)
164
In-depth: Youth in Crisis: Coming of age in the 21st Century. Kenya: Bangaisha na Mzungus – youth, sex and tourism on the
Kenyan Coast. IRIN, Available at <www.irinnews.org/in-depth-69989/28/kenya-bangaisha-na-mzungus-youth-sex-tourism-on-
the-kenyan-coast>
165
ibid (n 251).
166
ibid 20.
167
ibid (n 254).
168
Constitution of Kenya 2010.

xlvii
The question that often knocks my mind is whether the Constitutional protection guaranteed per Article 55
169
extends to the youth sex workers who are in “dire need”170

5.1.3 THE KENYA-MIDDLE EAST YOUTH EXODUS

Feeling “alien” in one’s own country is so insecure. This worsens upon realization that the country is able
but not willing to employ any concerted efforts to accommodate a situation. Whereas one may tend to
disagree with this notion on the cogent ground of open alternatives, it remains a reality until the contrary is
established. Apparently, this is what the unfortunate Kenyan youth are facing. Any “rumor” of
employment opportunities outside Kenya sounds good news for them. The recent Kenya-Arab exodus is
indicative of uninhabitable Kenya for many unemployed young people who are enticed by a clique of
unscrupulous individuals running Foreign Recruitment and Employment Bureaus and Agents to take up
jobs abroad. Even after walking away to tap the so-called “fortune”, the destination becomes a “lion’s den
of slavery” where many of the youths are subjected to tortuous conditions. They are left at the mercy of
the employers who subject them to worst forms of slavery including rape and killings for alleged failure to
comply. Some of them become accomplices in criminal engagement as well as evils by their employers.

Sarah Naigaga (not her real name), 31, is a Ugandan lady who got her way into Kuwait in the aid of one
“Brian”, an agent operating from Nairobi. Her long testimony invites humanitarian assistance for the
young people suffering in the Middle East. She says of her predicament:

When I reached his home, my Arab sponsor told me to clean his three-storied, 20-room house daily, clean
the swimming pool, sweep the compound, cook and I was not allowed to rest or even go to church on
Sunday. One day I fell sick and they refused me to go to the hospital unless I refunded the money paid to
my recruiting agent. The women would throw their used sanitary pads on the floor and force me to clean
them without gloves. They would also force me to wash their panties used during menstruation periods
using my hands and when I refused they abused and beat me. My sponsor told me I was not allowed to
leave the house until the contract was over and also not communicate on phone. I would work from 6am
up to 2am and take breakfast at 6:30 am and lunch at 4pm and at times we were not allowed to eat supper.
I was also not allowed to sleep before everybody in the house slept, and I was the first one to wake up.
169
The kind of exploitation young sexpreneurs face in the hands of tourists can never be gainsaid. Theirs is a sacrifice to gain
self reliance. It matters not the sufferance. How then can they survive if the job market is “closed”? The society has “trained”
them so and hence they have no option. For them, they would better loose “a leg” to see tomorrow.
170
Nakabugo Zurah, “Truth about jobs in the Middle East” the Observer (12th November 2013) Available at
<http://observer.ug/index.php?option=com_content&view=article&id=28532%3Atruth-about-jobs-in-the-middle-
east&catid=73%3Ahighlights&Itemid=70>

xlviii
The house was full of cameras to monitor my movements.... When you rest, they see you on camera and
shout at you, abuse you or beat you.... My bedroom had no lock; they removed it intentionally and all the
men in the house including the boss who had a wife would come to my bedroom at night and start
harassing me. I could not sleep because every time, I was expecting men to rape me. When I shouted to
scare them away or seek assistance, the madam would instead abuse me saying I was lying. Although I
tried to fight most of them off, I was defeated by the big men in the house and they managed to rape me.
My bathroom also had no lock and the men would open it and enter while I was bathing to sexually abuse
me.171

5.1.4 INCREASED LEVELS OF POVERTY AND SOCIO-PSYCHOLOGICAL STRESS

Kenya’s poverty head count stands at 43.37% using the poverty cut-off point of 1.25 dollars per person.172
This coupled with the high rates of unemployment has resulted into exploitation of the worker by way of
poor working conditions, job insecurity and child labour. Although the Employment Act, 2007, and the
Occupational Safety and Health Act, 2007, provide for protection mechanisms in favor of the employee,
their implementation has plagued the practicality of such measures. Besides, psychological stress caused
by unemployment and poverty determines the attitudes of an individual towards his own personality and
society as well. Unemployed often suffer hopefulness, acquiescence, desperation, and indifferences.173
Such a situation also influences the dynamism of the victims with which the further employment is
sought.174 This further generates other related problems such as health concerns which misfit sufferers to
adjust in the societal life.

Due to their predicaments, young women who eventually succeed in getting employment are at times
threatened to be sacked unless they do some favors to their employers. For them, getting employed is
often “sex-employment” exchange programme that requires their sacrifice. For instance, Catherine Mumbi
laments of the difficulties she faced while working in Kenya’s flower sector, thus;

When I felt better [in terms of health] I went back but my superior demanded that I have sex with him to
keep my job. I declined…. The following morning a watchman knocked on my door with a letter saying
171
World Bank and IMF Report, 23 April 2013. Available at <www.standardmedia.co.ke>
Alas, the policymaker does not even seem to sympathise with the victims of the above circumstances. They are often blamed
for letting their lives into the hands of the shady foreign recruitment agents. The causative aspect of the exodus is an obvious
myth for the policymaker. For how long should this continue? The young people dream of a time they will find a viable
ecological niche in their own soil; a place where manna exude from their inventions and not from inhuman springs.
172
Ibid.
173
ibid 185; Jahoda M, Lazarsfeld P, Zeizel H, Marienthal: The Sociology of an Unemployed Community (London, Tavistock
1933); Pal G C, Unemployment: Socio-psychological Perspectives (New Delhi: Manak Publications Pvt Ltd 2006)
174
Available at <http://www.ipsnews.net/2013/06/kenyas-flower-farms-no-bed-of-roses/> accessed 10th April 2021.

xlix
my job was over and that I should immediately vacate the company’s compound…. I have been jobless
since then…. I am surviving on the generosity of well-wishers since December 2011.175

This is the experience of most ladies who are ripe in the job market. Maintaining their position is often an
uphill task. I wonder whether the law indeed protects them. Besides, there is a possibility that Catherine’s
job could have also caused her illness in the first place.

5.1.5 SOCIAL EXCLUSION AND MARGINALIZATION

Worse than poverty, long-term unemployment causes social exclusion and marginalization among the
youth, especially in urban areas, where a person’s social status is linked to their job or career. For
instance, a number of young people in Nairobi have no access to any gainful employment: the result is a
“bulge” of idle youth who are a threat to themselves and the social environment they live in. The only
option left for them is illegal hawking in disguise during the latest hours of the day to avoid arrests by City
Council Officers.

5.2 ECONOMIC REALITIES ASSOCIATED WITH YOUTH UNEMPLOYMENT

5.2.1 ECONOMIC SUPPRESSION
Economists have often used employment elasticity as a numerical measure of how employment varies
with growth in economic output (GDP). This measure (employment elasticity) serves as a useful way to
examine how growth in a country’s GDP and growth in employment evolves together over time. For
instance, according to Omolo (2012), Kenya’s employment elasticity declined from 1.77 in 1996-2000 to
1.03 and 0.5 in 2000-2004 and 2004-2008, respectively.176 This means that the employment yield of the
country’s growth in GDP has declined over time.

In general, youth unemployment has a major negative effect not just on the individuals themselves but
also on the collective economy. It represents a wasted resource for Kenya. The poor youth labour market
participation limits the inputs available for urgently needed growth and makes it harder for the country to
realize the benefits of labour-intensive growth strategies.177The dependency ratio increases to the extent of
suppressing the per capita income.

175
Omolo 2010 ibid (n 1) 24.
176
Dhillon and Yousef, “Inclusion: Meeting the 100 Million Youth Challenge” (2007).
177
The inexplicable death of my nephew in the premises of his employer within Nakuru County, Kenya, provides a typical
example of the impracticality of the law.

l
5.2.2 THE CAPITALIST SITUATION VISA-A-VIS THE WORKING CONDITIONS
The effect of the labor policies taken by the Government was to make the Kenyan market more capital-
intensive than labor-intensive where employers were more concerned with the profits made than the
working conditions of their employees. The Occupational Safety and Health Act (OSHA) was enacted to
streamline this situation but the tragedy is still the same with some employees leaving their places of work
because of untold conditions. Whereas the Work Injuries & Benefits Act provides for compensation for
employees for work related injuries and diseases, the implementation question is still a myth among most
employers who are not even informed of the law. Those who suffer most are the casual workers.178

5.3 CONCLUSION
From the foregoing analysis, it can be reasonably argued that youth unemployment is a “sharp sword”
with grave socio-economic effects that calls for the Government’s response. It affects the individual’s
family relationship negatively and may also lead to poor mental health and other societal disorders such as
corruption, dishonesty, crime, and increased suicide rates. The youth feels socially excluded and turns to
rebellious activities against the society. Furthermore, illegal and unfair means of survival become the only
alternative left for the wanting youth, something that compromises societal morality and ethics. The
ongoing silent rally for the legalization of their “business” is another issue that cannot be accommodated
herein. The question that invites debate is whether indeed the law is sound enough to accommodate such
predicaments. Besides, the greatest impact of the “sharp sword” is laid on the country’s economy which
stagnates or decelerates with a decrease in employment elasticity.

178
ibid

li
CHAPTER SIX: SUMMARY RECOMMENDATIONS & CONCLUSION

6.0 RECOMMENDATIONS
Firstly, the VAT Act of 2013 may not be the only option of solving the sluggish economic growth rate of
Kenya. Foremost, it will have the effect of reducing the spending levels by the larger population and
reduce the much intended revenue. The cost of production for the firms will be unsustainable. There are a
series of options open for the Government. First, the government should drastically cut down recurrent
and unnecessary spending, while at the same time, increasing the development and local investment
spending. For instance, the lots of cash spent in government meetings in terms of allowances and
refreshments have to come from those who would otherwise have spent or invested their money in the
private sector. This is despite the highly celebrated devolution process being a great burden for the
taxpayer. Since this kind of spending is not based on mutually beneficial exchanges, it is just but wasteful.
While some jobs may be created out of the spending, the State should not ignore the jobs that are lost as
resources are taken from the rest of the economy either through taxation or borrowing.

Second, the government should provide tax incentives for Foreign Direct Investments, expand spaces for
Import Substitution Industrialization, and incubate technological and innovation hubs that can engage
millions of educated yet unemployed Kenyan youth in productive ventures.179 The best example of tax
incentives can be drawn from Malaysia’s direct and indirect incentives. Direct tax incentives grant partial
or total relief from tax payment for a specified period, while indirect tax incentives are in the form of
exemptions from import duty, sales tax and excise duty.180 The major tax incentives for companies
investing in the Malaysian services sector are the Pioneer Status (PS) and the Investment Tax Allowance
(ITA). Any company granted PS enjoys a five-year partial exemption from the payment of income tax.181
It pays tax on 30% of its statutory income, with the exemption period commencing from its Production
Day (which is the day the company’s production level reaches 30% of its capacity).182

In the alternative, a company may be granted ITA in which it is entitled to an allowance of 60% on its
expenditure (factory, plant, machinery or other equipment used for the approved project) incurred within

179
<Http://punditmusings.wordpress.com/2013/09/03/raising-taxes-i-kenya-was-ill-advised-and-will-reduce—government-
revenue/> last accessed 5th April, 2021
180
<http://www.mida.gov.my/env3/index.php?page=incentives-for-investments> last accessed 20th April, 2021.
181
ibid.
182
ibid (n 266).

lii
five years from the date the first qualifying capital expenditure is incurred.183 The company can offset this
allowance against 70% of its statutory income for each year of assessment.184 Any unutilized allowance
can be carried forward to subsequent years until fully utilized. The remaining 30% of its statutory income
will be taxed at the prevailing company tax rate.

Secondly, for effective creation of employment opportunities for the youth, there is need for Kenya to
shift its emphasis from curative to preventive policy interventions.185 This implies moving away from
treating the symptoms of unemployment to dealing with the causes of the problem. In this case, focus
should be on analyzing and understanding the causes of unemployment in the country and devising
strategies to deal with it.186 The starting point for the government is to focus on the employment problems
of the youth who are the greatest disadvantage, rather than merely on number of those who are
unemployed.

Preventive mechanisms include establishing a national training system that internalizes externalities and
thus gives employers an incentive to take up more employees for training; reducing wage rates to
rationalize the employers’ cost of production; increasing labor demand by creating an enabling
environment for investments; and ensuring information flow as a sound solution of market failure.
Curative imperatives include inter alia public works programmes, provision of subsidized credits, mass
literacy campaigns, and skills training.

In a nutshell, emphasis on prevention rather than cure directs towards two sets of policies: those to boost
the overall demand for labor, and those to ensure that disadvantaged youth acquire functional literacy and
numeracy.187 In practice, a combination of preventive and curative policies is needed to try to prevent the
emergence of youth employment problems and to deal with those that, nevertheless, do emerge.188

Thirdly, notwithstanding the difficulties that have bedevilled the policies and laws, the government
should put a little more emphasis on implementation of the identified employment promotion
mechanisms, and develop a framework for monitoring and evaluation that incorporates both state and non-
state actors. It is also crucial to develop and implement a framework that ensures coordination between

183
ibid.
184
ibid.
185
ibid.
186
ibid (n 21)
187
Omolo (2010) note 1, 58.
188
ibid.

liii
various interventions and exploitation of the synergies towards employment creation. Significant steps
should be taken to reinforce the link between policymakers and academic and research institutions in order
to trigger organisational development.

Fourthly, the government should curb the likely effects of the rigid wage determination mechanisms in
place. Strategies should be established to formulate viable and sustainable wage policies that accord with
the provisions of section 44 (5) of the Labour Institutions Act, 2007. The government, in collaboration
with the various economic giants in Kenya, should adopt the propositions of the classical and neoclassical
economic theories to assist in reducing the cost of employment and hence increase the labor demand. Any
policies to be established should be supported by a comprehensive social protection mechanism to make
employees feel less vulnerable while at the same time factoring in the cost burdens laid in the employer.
The key rationale here is to create an enabling environment for investor business and hence youth
employment.

Fifthly, the labour institutions whose main purpose is to steer implementation of employment policies
should be accorded institutional independence for efficiency. It is important to note that child labor has
persistently taken root in most agricultural areas (such as sugar cane plantations) because of inadequate
information on the strictness of the law. Thus, labour institutions, under the auspices of the Ministry of
Labour, ought to conduct public awareness activities such as workshops and seminars on a periodic basis
to enlighten the public. Further, the emergency of the recently-instituted Salaries and Remuneration
Commission may cause rifts with the Wage Council in terms of performance. The salient point here is that
there may be questions of supremacy in setting of wages for public officers. A drastic recommendation
offered by the author is the amalgamation of these labour institutions which shall not only prevent
conflicts but also reduce on costs.

Sixthly, there is need of reforming the employment law in accordance with the Constitution in order to
harmonize the salient provisions in contention. For instance, the thirteen months limit provided under
section 45 (3) of the Employment Act should be adjusted per the decision in Samuel G. Momanyi v The
Hon Attorney General and another189. The minimum age under section 56 of the Employment Act (2007)
should also be raised from 13 to 15 years to ensure that children obtain the basic compulsory education
before being introduced into the harsh labour market. This means that the job spaces that could otherwise

189
ibid.

liv
be taken by the children will be left vacant for the unskilled and semiskilled youth whose unemployment
status has darkened the Kenyan socioeconomic environment.

Seventhly, it seems that the culture of corruption is the main problem that has swayed any policy
implementation strategies in the past. Many state-actors have been accused of embezzling the funds which
are meant for the implementation processes and no effective prosecution steps have been taken. Even then,
how can a thief prosecute himself? The onlookers in the Anti-corruption Commission need to be alert.
They should wake up and attend to these serious issues that have caused economic “mayhem” in this
country. There should be effective information flow mechanisms between all public employment sectors
and the Commission in order to ensure employment transparency and accountability. This can be done, for
example, by having independent observers in the said sectors to liaise with the Commission on corruption
incidences. Otherwise the recent Uwezo Fund will end up in some people’s pockets instead of helping the
needy youth.

Finally, as regards the cross-border exodus of young people, there is a paucity of labour law in dealing
directly with the unscrupulous agents who give false job promises. Many young people have found their
way to the Middle East to do exploitative jobs. When they are molested, they start howling “serikali
saidia” (government help) at the Kenyan embassies. It is therefore proffered that labour legislation on this
matter ought to be enacted in order to regulate cross-border movement of labour. This should be in line
with the regional and international instruments to which Kenya is a party. Additionally, the migrant
quagmire in Kenya has greatly hampered youth employment due to the influx of numerous refugees from
Somali and Sudan. While respecting the international obligations owed to this class of people, it is
important to enact rules that document the extent to which the government can assist bearing in mind the
interests of the Kenyan youth.

6.1 CONCLUSION
The creation of adequate and sustainable employment opportunities for the Kenyan youth has been a great
challenge for the Kenya government for many years since independence. The entire Kenyan citizenry has
often suffered in the face of the wanting economic environment that is characterized by high inflation rate
and poverty. To address these challenges, the government has, over time, developed three broad
employment creation policy approaches. These approaches are: the Kenyanization of Labour Policy,
which was pursued during the first decade of independence; the Active Labour Market Policies
undertaken in the second and third decades; and the Macro-measures, which have been followed from the

lv
third decade to date. Recent policy strategies include the public works progammes (Kazi Kwa Vijana), the
YEDF, the ERSWEC, and the Uwezo Fund that is under focus by the government. Spanning all the three
policy generations is the focus on economic growth as the panacea to employment creation.

These policy interventions have had varied employment outcomes. However, it remains clear that creating
sufficient employment still remains a major problem in Kenya. The acute nature of corruption has
persistently swallowed any efforts by the government to implement employment laws and policies. For
many years, it has been very difficult to answer the question of youth unemployment. Yet, it remains
known that the laws themselves are not sound enough to cover the problem. It has already been noted that
various provisions of the labour laws inter alia Sections 45 and 56 of the Employment Act, 2007, need to
be reformed as they leave a big gap which is a precondition to youth unemployment. The cumulative
impact of this lacuna is the large unemployed youth bulge. A state of defiance has cropped up to the extent
of compromising societal morality. The other setbacks associated with this situation call for concerted
efforts by the government, the civil society and other actors. The situation is likely to worsen if the
government is not going to take amicable steps as recommended above.

lvi
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