The absence of the rule of law in Kakuma refugee camp gives managers freedom to determine refugees’ employment process and mode of payment.
Contrary to national and international workers’ rights, neither national nor international laws can be cited when anyone wants to examine the scope, impact, commitment, appreciation and motivation of refugee workers in Kenyan camps under the umbrella of UNHCR governance.
Article 6.1 of the International Covenant on Economic, Social and Cultural Rights states “The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.” “No right, no choice and no safeguards of the right in Kakuma refugee camp.” Said Paul, an incentive worker.
“Refugees need to have a work permit to claim a right to work. The government of Kenya has not given refugees permit to work in the camps or urban areas.” He added.
Camp residents say that the government denies the permit to any person with refugee status. However in contrast, in the camp refugees are allowed to work in accordance with guidelines for refugee incentive workers made by senior managers. It is not clear how there are two parallel laws applied in Kakuma Camp. “Refugees, by Kenyan law cannot receive salaries; however, they are permitted to receive what is termed as ‘incentives’,” a statement from the IRC incentive guideline explains. Refugee workers are called “incentive staff”, a term derived from their payment.
The question remains whether the government contradicts its own laws in the refugee camp. Would the government benefit in such acts? In this case refugees understand that UNHCR, which is supposed to advocate for better pay in the camp, lacks the will to do so. Moreover the agency should be held accountable for this unfair treatment and other acts of violations.
Recruitment process for incentive workers in the camp.
There are variety of cadres including community health workers, carpenters, masons, security guards, teachers, nurses, clinical officers, agro foresters, water engineers, and others. Incentive staff positions in many organizations are advertised on camp notice boards and refugees send their applications to fill the vacancies. Incentive staff undergo interviews to verify their ability to do the jobs. However, they do not have a chance to negotiate the payment. Here the refugees are denied the right to gain their living by work which they freely choose or accept.
The right is denied but the needs remain. Refugees would wish to work and improve their skills and acquire more experience. Considering all the scars of the conflicts they faced back in their home countries, again they are compelled by such circumstances of vulnerability, to take up these jobs.
Although many organizations do not sign contracts with refugees, some do use a ‘Letter of Understanding’ indicating a contract period of a few months or one year and a monthly ex-gratia payment, depending on UNHCR’s incentive scale ranging between around $93.75 (7500Ksh) for a senior most highly paid refugee to $31.25 (2500ksh).
The same letter provides that a refugee is responsible for paying and discharging any statutory duties or levies that may be imposed by any local or central authority of the government in relation to the ex-gratia incentive extended to the refugee worker.
Undue procedural laying off refugee workers.
The Universal Declaration of Human Rights (UDHR), Article 23. (1), (2), (3), (4) in addition to free choice of employment, discusses the just and favourable conditions, the right to equal pay for equal work, just and favourable remuneration and the right to form and to join trade unions for the protection of workers’ interests.
Both the International Covenant on Economic, Social and Cultural Rights and the UDHR indicate that both the government and person who chooses the job have responsibility to take appropriate steps to safeguard it. This right is contravened in many ways in Kakuma Camp. In the different meetings and annual reviews operation refugee workers have always express their concern on incentive increment. When they realized that their requests are not responded to the only way to initiate negotiations was to strike by refusing to sign the Letter of Understanding.
Those who attempted to initiate negotiations for possible increment of their pay were threatened with termination or their monthly incentives were deducted for the number of days they were considered to be on strike. Under the Kenyan Employment Act of 2007 Part VI – Termination and Dismissal Section 41 (1) and (2), the employer has to explain to the employee in a language that he or she understands the reasons for termination of engagement but more importantly the employee has to be given the chance to defend themselves against allegations. Many are laid off their jobs unfairly and none will question the decisions taken by officers. No independent lawyers or organization have deliberately come out and advised on ways to redress the problems affecting incentive workers.
About the year 2001, refugee teachers formed an organization, KATECO, with the objective of addressing or trying to find solutions to complaints of teachers in the camp. No sooner established, the organization undertook to bring the vital issues of transportation and teachers’ incentives as a priority to discuss with UNHCR and the Kenyan government. It devoted its time to bring the refugee teachers together and request all the members to contribute for the organization’s funds and administrative operations.
The start would be equality in camp job employment in all positions regardless of nationality and considering only the positions and education level of employees. After holding many meetings with its members and engaging UNHCR on matters of workers’ employment and rights, KATECO was considered as an organization inciting refugees and working against the refugee camp management. The attempt to register a refugee teacher welfare organization was not successful due to resistance by UNHCR and it died off.
Rights and duty in employment.
Refugees as humans and workers in Kenya are supposed to benefit in their employment. The Kenya Employment Act (KEA) 2007 explains what are the rights and duties of an employee during employment period. They range from basic minimum conditions of employment, hours of work, annual leave, maternity leave, sick leave, housing, water, food and medical attention.
In theory the working day is eight hours long. However a good number of refugee workers are not provided with transport to work and have to walk. They have to leave at seven and get back home at six in the evening. No breakfast or lunch is provided. According to KEA Part V Right and Duties in Employment 29 (1), a female employee is entitled to three months maternity leave with full pay. A refugee leave form bullet three says that a refugee female is entitled to 40 working days.
In KEA, a male employee is entitled to two weeks paternity leave whereas a refugee worker according to their leave form is entitled to 7 days with full pay. The exception is sick leave which in both KEA and refugee workers’ guidelines is twelve days annually. There is a big gap between the treatment of refugee workers and other organizational staff in terms of housing, feeding and medical attention.
Those who are highly paid decide the fate of those who are poorly paid. A decade ago perhaps refugees enjoyed the policy. Today refugees’ heads are up for policy change. What would be the next step? Where there is no law, it’s obvious man handles man. The question is who benefits from the change and who loses?