Safe and Healthy Working Environment, a Fundamental Workers Right: What it Means for Kenya

For the World Safety Day 2023

From the Biblical Garden of Eden, man has been always been a worker, tasked with the perennial duties of pruning trees and general gardening operations. Even after one of the greatest fall-out of all time, he was condemned to eternal work and profuse sweating because that was the only way he could earn a living. The modalities of work during those day though remain unclear; it was not until the industrial revolution in Europe in the 1600-1700s that workers began forming labour unions to demand better working conditions. The conversation broke into little factory floors, endless agricultural fields, and the dungeons of mineral mines and then boom, occupational safety and health (OSH) was born. All these brought forth the first OSH literature, De Morbis Artificum Diatriba (Dissertation on Worker's Diseases), authored by Bernadino Ramazzini and published in 1700 (ARPANSA, n.d.). The decision of the 110th Session International Labour Conference in June 2022 to declare "a safety and healthy working environment" as a fundamental principle and right at work is monstrous. It would likely impact how ILO member countries operate and trade (ILO, 2022). This article seeks to understand what this ILO declaration means for Kenya, and whether she has the audacity to celebrate.

One would question why such a significant and commendable declaration would take so long to see the light of day despite its existence for centuries. Let's look at some statistics here. ILO estimates that 2.3 million people die of occupational accidents and illness yearly and 6000 deaths daily (ILO, n.d.). These annual figures translate to 26% of the world's leading killer disease, ischemic heart disease, which kills 8.9 million people annually as of 2019 (WHO, n.d.). \it is therefore not arguable that a killer situation of such magnitude would have received proper and timely attention. Still, some critics have argued that the declaration may not have a significant impact since it may destabilize the existing trade agreement between ILO member states (Politakis, 2023), which not the point here.

What it Means for Kenya

As the world commemorates World Safety Day on April 28, 2023, and celebrates the ILO's declaration, Kenya and Africa need to reflect on what it means for them and start scratching their heads about the path this declaration takes. The best way to do this is to reflect on the past steps taken to improve OSH, the existing gaps, and opportunities for future celebrations. And whether the gaps are genuine enough to warrant a celebration.

Legislative Gaps

Kenya's OSH legislation journey is very brief; not a lot to tell. The enactment of the Factories Act Cap 514 in 1951 saw the emergence of OSH in Kenya after it was prompted by the adoption of Worker's Compensation Act Cap 236 in 1949. The year 1990 saw the enactment of The Factories and Other Places of Work Act which widened the scope of workplaces not previously covered in the original Factories Act (Muriithi, 2021). The Factories and Other Places of Work Act was repealed and replaced by the Occupational Safety and Health Act, famously known as OSHA 2007. While that was happening, the same year saw the birth of the Work Injury and Benefits Act (WIBA), which delineates compensation for employees with work-related injuries and diseases. Several subsidiary legislations on fire safety, hazardous substances, first aid and others support OSHA 2007. Moreover, some legislation such as the Public Health Act Cap 242, Food, Drugs and Chemicals Substances Act Cap 254, Mining Act, Cap 306, and Environmental Management and Coordination Act of 1999 are among the legislations that touch on OSH-related issues.

Kenya has undergone rapid economic growth since the enactment of OSHA 2007, with a 4.8% average growth rate between 2015-2019 (World Bank, 2023). This steady growth has seen Kenya listed as one of Africa's most rapidly developing countries. Significant milestones have also been realized in reducing poverty, where efforts have been made to improve the business environment, which prompted a World Bank ranking at position 56 out of 190 countries in the World Bank's 2020 Doing Business Report (World Bank, 2021). Service industries, which have taken a boost from infrastructural developments, take credit for realizing this growth as it accounts for half of the Nation's GDP. Industries have opened up in manufacturing; technological advancements have eased transport and communications. Despite a growing economy, a vast industrial expansion, and a more technologically advanced economy, one thing that has remained the same is the OSH legislation that was passed decades earlier. The growth has outrun workplace safety, health, and welfare enforcement. The country's OSH legal framework has not adequately addressed transport safety, psychological health, construction safety, and chemical safety, leaving several grey areas in enforcing OSH legislation.

The Directorate of Occupational Safety and Health Services

If you cannot measure it, you cannot manage it. Data is vital for any authority to exercise its mandate effectively. The Directorate of Occupational Safety and Health Services (DOSHS) is the designated national authority to manage OSH in Kenya. One of its core mandates include collecting, analysing, and maintaining a database of occupational accidents, diseases, and dangerous occurrences. DOSHS' policy and legal mandate are provided for by the National Occupational Safety and Health Policy of 2012, OSHA, 2007, and WIBA 2007. Section 25 of OSHA 2007 mandates the DOSHS to develop and maintain an adequate collection, compilation, and analysis program of occupational safety and health statistics. However, there is a lack of reliable OSH data generated by DOSH (ILO, 2018), which slows down OSH's improvement. This significant gap also hinders proper planning and effective policy development. To one's surprise, the collection of occupational accident data and illnesses is still analogue, where an employer must fill out DOSH 1 and submit it to DOSHS. A dubious employer may decide not to report an incident for various reasons ranging from ignorance to a wilful attempt to escape the wrath of DOSHS. The Africa Labour Research and Educations Institute reports that DOSHS cannot collect and analyse OSH data due to inadequate resources (ALREI, 2017). The availability of data is a major hindrance to improving OSH in Kenya. Whilst DOSHS is currently in the process of improving its systems to migrate to analogue ways of operation, having an effective database requires immediate attention to provide an OSH outlook of the nation.

Research that drives policy

Research is the hallmark of innovation and discover. In OSH, research enables inquiry towards identifying hazards, evaluating the risks, and recommending innovative measures to prevent these risks. Through research, little-known and less-explored subjects can change our ways of thinking and approach towards OSH. A great example is cases of mental health and stress at work, which has been a growing concern. The Ministry of Health reports that 25% of Kenyans suffer mental health problems, which might be higher in the workplace due to work-related stressors. Yet, despite coming up with the Mental Health Policy of 2015 and the Kenya Mental Health Action Plan 2019-2023, there are still noticeable margins in addressing mental health. Lack of awareness and stigmatization surrounding the subject means many employees would not seek the needful help. This explains why experts in the OSH fields should venture into research to identify gaps in OSH, explore the unchartered territories, and bring recommendations that drive policy and speak for the voiceless.

?It its June 2022 declaration, ILO stressed the need for all member states obligation to respect, promote, and realize, in good faith, the principles concerning the fundamental right to a safe and healthy working environment. There is a need for collaboration between the government, businesses, and specialists from a diverse pool of expertise to share knowledge, research, and bring new ideas to the table to improve OSH performance. DOSHS must be empowered to deliver its mandate, including funding and human resources to enforce existing legislation. Finally, there is a need for more proactiveness from DOSHS to have readily reliable data that depict a snapshot of OSH in Kenya. But until then, we might have less to celebrate in the #worldsafetyday.

References

Africa Labour Research and Education Institute (ALREI). (2017). An Overview of Occupational Health and Safety in Kenya. Retrieved from https://www.alrei.org/wp-content/uploads/2017/12/Occupational-Health-and-Safety-in-Kenya.pdf

ARPANSA. (n.d.). History of Safety. Australian Radiation and Protection Agency. Retrieved April 27, 2023, from https://www.arpansa.gov.au/regulation-and-licensing/safety-security-transport/holistic-safety/history

ILO. (2018). Occupational safety and health profile in Kenya. International Labour Organization. Retrieved April 27, 2023, from https://www.ilo.org/global/topics/safety-and-health-at-work/country-profiles/africa/kenya/WCMS_187632/lang--en/index.htm

ILO. (2022). A safe and healthy working environment is a fundamental principle and right at work. International Labour Organization. Retrieved April 26, 2023, from https://www.ilo.org/global/topics/safety-and-health-at-work/areasofwork/fundamental-principle/lang--en/index.htm

ILO. (n.d.). World Statistic. International Labour Organization. Retrieved April 26, 2023, from https://www.ilo.org/moscow/areas-of-work/occupational-safety-and-health/WCMS_249278/lang--en/index.htm#:~:text=The%20ILO%20estimates%20that%20some,of%20work%2Drelated%20illnesses%20annually.

Muriithi. (2021, April 27). An Overview of Workplace Safety and Health in Kenya. The Kenya Institute of Public Policy Research and Analysis. Retrieved April 26, 2023, from https://kippra.or.ke/an-overview-of-workplace-safety-and-health-in-kenya/

Politakis, G. (2023). THE RECOGNITION OF OCCUPATIONAL SAFETY AND HEALTH AS A FUNDAMENTAL PRINCIPLE AND RIGHT AT WORK.?International & Comparative Law Quarterly,?72(1), 213-232. doi:10.1017/S0020589322000446

Republic of Kenya, 2007. Occupational Safety and Health Act. Government Printer

World Bank. (2021). Ease of Doing Business Report in Kenya. The World Bank. Retrieved April 27, 2023, from https://archive.doingbusiness.org/en/data/exploreeconomies/kenya