Are Refugees Entitled to Equal Pay for Equal Work?
Volume 1, Issue 2 / January 2009
In Kakuma Refugee Camp parlance, a distinction is made between “incentive” and “salary” payments. Refugees with proper qualifications and competence in their fields employed by international organizations are paid “incentives” and not salary. The incentives are far below what their non-refugee counterparts earn in the form of salaries. Are refugees entitled to equal pay for equal work?
Refugees Have the Right to Work and Equal Pay
All refugees have the right to work and equal pay under international law. The 1951 Convention Relating to the Status of Refugees obliges Contracting States Parties to guarantee refugees the right to work and sets three standards to guide States in implementing the provision.
First, Article 17 (1) of the Convention stipulates that Contracting States Parties should accord refugees the “most favourable treatment accorded to nationals of a foreign country in the same circumstances.”
Second, Article 17 (2) states that restrictions imposed to protect nationals from competing for jobs with foreigners shall not be applied to refugees…who fulfils one of three conditions: a) when s/he has completed three years’ residence in the host country; b) s/he has a spouse possessing the nationality of the country of residence, but may not benefit from this provision if s/he has abandoned that spouse; c) one or more of his/her children are nationals of the country of residence.
Third, Article 17 (3) states that Contracting States shall give “sympathetic consideration to assimilating the rights of all refugees” to be the same as those of nationals.
Refugees are also entitled to just employment conditions under international human rights law. The Universal Declaration of Human Rights (UDHR) guarantees to everyone “just and favourable conditions of work.” It states that “everyone, without any discrimination, has the right to equal pay for equal work” (Article 23: 1-2, italics added). The right to work is also supported by Article 6 of the International Covenant on Social, Economic, and Cultural Rights (ICESCR).
While the Kenya Refugees Act 2006 attempts to provide refugees with some of the provisions outlined in the 1951 Convention with regard to wage-earning employment (Section 16(4), it falls short of those standards. The only provision to wage-earning is Section 16 (4), which fails to explicitly state that refugees have a right to wage-earning employment:
16 (4): Subject to this Act, every refugee and member of his family in Kenya shall, in respect of wage-earning employment, be subject to the same restrictions as are imposed on persons who are not citizens of Kenya.
The real effect of Section 16 (4) is that restrictions applied to foreigners working in Kenya shall also apply to refugees.
Despite these legal protections, refugees are not entitled to equal pay for equal work under international organizations in Kakuma. Refugees employed by NGOs and UNHCR in all sectors—ranging from health to education to translation services—are provided with an “incentive” in lieu of salary.
The Incentives System in Kakuma Camp
Refugee incentive staffs work a number of highly qualified positions in Kakuma Camp, such as supervisors, counterpart managers, head teachers, and Director of Schools. A figure of the total number of incentive staffs employed by NGOs could not be obtained.
Refugee incentive payments range from 1,800-5,500 Ksh per month across all employment sectors, regardless of an individual’s experience or professional qualifications. Kenyan national staffs earn salaries ranging from an estimated 35,000-120,000 Ksh per month.
Says one incentive staff who holds a senior position in an NGO, “The work we’re doing is mostly the same, but accountability is not the same.” Non-refugee staffs are often assigned greater decision-making authority than refugee staffs.
Another incentive worker reports, “We are involved in decision making, yes. But in most cases, they already have a decision which they just share with us as by formality.” But an incentive staff working with another organization says, “We make decisions together with Kenyan counterparts, so we are fully involved in activities such as report writing.”
National staffs are entitled to periodic pay raises according to performance, while refugee incentives have remained unchanged for almost eight years. Refugees have petitioned NGOs for increases to incentive payments, with little effect. “To my knowledge, there has been no incentive increment since 2000 in LWF, for instance,” says one senior incentive staff.
Although UNHCR oversees the incentive policy among NGOs, pay rates are not harmonized. For example, in 2008 a JRS watchman was earning 3,000 Ksh per month while an IRC watchman was earning 1,800 Ksh per month. After complaints were raised, IRC increased the monthly pay rate for their watchmen to 2,300 Ksh.
One LWF incentive staff says she is disappointed by the inequality that exists at a high level in the NGO working place, especially in terms of wages. “The average 3,000 Ksh incentive hardly equates with the hard and devoted full-time work of refugee staffs,” she says, while a national having the same qualifications receives a salary of ten times the refugee incentive.
Low Teacher Incentives a Source of Frustration
Refugee teachers and educational officers form the majority of incentive staff in the camp. Refugee staffs in education have long been petitioning for incentive increases, pointing out that this would increase equality of wages for refugees as compared to Kenyan teachers working under the same conditions.
Kenyan contracted and casual teachers are paid a monthly 15,000-20,000 Ksh and 7,200 Ksh, respectively. The wage disparity is perceived by refugee teachers as a violation of their rights.
According to these teachers, incentives are unfairly paid and it is difficult to make a living. “Teachers have ever and always been crying with tears down their cheeks to UNHCR/LWF for the increment, but deaf ears have turned to their complaints and grievances with no punitive measures taken against it,” said a primary school head teacher.
According to sources, teachers requested an increment because commodity prices in the market have increased so much that incentive workers could no longer satisfy their needs.
Two senior educational officers say they first started working with LWF as teachers more than six years ago, when they received monthly incentives of 2,640 Ksh. This rate was later increased to the current 3,000 Ksh monthly. But they conclude that the incentive was never enough to cater for their daily needs. Despite a rising cost of living, the incentive remains fixed.
Refugee teachers also voice their grievances regarding incentive payment delays. They report that refugee incentives are delayed most months while Kenyan national staffs are paid on time. In June 2007, for example, Kenyan casual teachers were paid on 3 June 2007, while refugee incentive teachers were paid more than a month later on 5 July 2007 (LWF Time Table for Incentives/Casual Wages Payments, June 2007).
Incentive teachers claim that payment delays are a violation of their rights, as refugee teachers are also qualified for the positions they hold and deserve timely payment.
Some speculate that low incentive payments may have contributed to poor performance on 2008 KCPE Exams (Kenya Certificate of Primary Education) in camp schools. Many teachers say they are demoralized and have little motivation to redress poor performance trends.
“The high turnover of staff from teaching to other departments is also due to the low and unfair payments,” claims one teacher at Unity Primary School.
Why the Wage Disparity?
Why does UNHCR maintain an incentive policy that does not provide refugees with equal pay for equal work?
One reason offered for this policy is that refugees receive “humanitarian assistance” and thus do not merit full wages. A UNHCR staff member spoke to KANERE on condition of anonymity. He states that refugees receive incentives “because they are getting their resources from donors.” Refugees get access to free accommodation, food, medical treatment, water, and education, he explains.
But refugee staffs do not agree with this logic. “It’s not generally fair, and it’s not even considering the workload,” says one senior incentive staff. “The suggestion of incentives from NGOs is that we get free supplies from UNHCR. But the fact is that a human being cannot stay with that. You need to buy sugar for tea, milk for children, charcoal and fuel for cooking. Even the people who are really dependent on rations are running out after 10 days [in a 15-day cycle]. So this justification is totally not accurate.”
Another refugee staff confirms, “This incentive for refugees surely does not provide for a minimum standard of living for a family in the camp.”
Another justification offered by the UNHCR staff member is that “on top of” all the humanitarian aid they receive, “refugees are working for their own fellow refugees and citizens from their countries. So refugee staffs are benefiting much while the work or services they are giving are for the interest and benefit of their fellow refugees.”
When asked about the refugee nurses and teachers who also provide services to the local Kenyan community, the UNHCR staff replied, “The main target and most interested persons are refugees.”
In countries around the globe, nurses, teachers, and social workers serve their compatriots and are paid for their services. It is unclear why refugees should not be entitled to salaries because they also serve “their fellow citizens.” In fact, the refugee community is diverse and refugee staffs serve persons from many different countries.
In justification of the incentive policy, UNHCR has previously referred to budgetary constraints (e.g., Verdirame & Harrell-Bond, 2005). However, budget constraints do not prevent UNHCR from providing national and international staffs with salaries and contracts.
As previous research has pointed out, “In reality, the type of financial commitment that would be required to offer proper contracts to refugee teachers would not be significant” (Verdirame & Harrell-Bond, 2005, p. 221).Thus, the question of wage inequity persists.
One refugee staff member with eight years of experience in NGO work does not believe advocacy on behalf of refugee workers is taking place. “Organizations aren’t taking serious advocacy for refugee wages—it’s only because refugees pushed and pushed that finally [one NGO] requested a raise. But requesting isn’t the same as advocacy. If they were advocating, we would have seen the impact.”
A KANERE journalist attempted to speak to the UNHCR Community Services Officer on two occasions, but was denied entry to the UNHCR compound both times. When finally contacted for comment, the response from the UNHCR Head of Sub-Office was that “UNHCR will not be involved” with KANERE at this time.
When contacted for comment, the LWF Community Services officer referred KANERE to the LWF Project Coordinator. A KANERE journalist attempted to speak to the Project Coordinator on three occasions, but the Coordinator was unavailable every time.
Is this Justice?
As a result of these and similar policies, some refugees complain that their rights are being denied in Kakuma Refugee Camp. The persistent inequalities they face in the workplace suggest that their competence and qualifications are not taken seriously by the organizations employing them. Refugees perceive the incentive policy as a violation of their right to equal pay for equal work.
“Refugees are human beings,” declares a Congolese refugee who lost his job due to recent budget cuts. “Human rights are the things that belong to us and no one can take them away.”
“Is this justice?” another refugee incentive staff asks. “There will be justice and harmony in society if there will be rule of law. Under the rule of law, all people are equal before the law.”
KANERE would like to thank Zachary Lomo for his invaluable contributions to the legal section, “Refugees have the right to work and equal pay.” All errors remain the authors’.
Convention Relating to the Status of Refugees (signed on 28 July 1951, entered into force on 22 April 1954).
International Covenant on Economic, Social, and Cultural Rights (adopted on 16 December 1966, entered into force on 3 January 1976).
Kenya Refugees Act 2006.
Lutheran World Federation Time Table for Incentives/Casual Wages Payments, June 2007.
Universal Declaration of Human Rights (UNGA res. 217 A (III) of 10 December 1948).
Verdirame & Harrell-Bond (2005) Rights in Exile: Janus-Faced Humanitarianism. Oxford: Berghahn Books.