Introduction

Before starting this section, we would like to acknowledge the work of the University of Nottingham’s Rights Lab, together with Monash University’s Castan Centre for Human Rights Law. Their amazing collaboration in compiling ‘The Antislavery in domestic legislation’ report and database, which provide: resources, statistical data and ‘an empirical analysis of national prohibition globally’ (Scwartz & Allain, 2020a), provided the data from which we draw upon to inform this section.

It is a popular belief that slavery has been abolished globally and that most nation states, Kenya included, have on their statute books, legislation to this end but this should not lead readers to think that slavery no longer exists. As the stories contained across the pages of this blog illustrate, it is a sad fact that in the year 2021 slavery still exists at many levels of society and often is not even understood as such. The recommendations guide for using the Nottingham/Monash database (see above) states,

“the claim that slavery is illegal in every country in the world is a pervasive myth in the antislavery field. This popular misconception stems from the fact that all states have now abolished laws which permit slavery. However, it is not enough for country simply to abolish laws allowing slavery; to meet their international obligations States must proactively prohibit these practises through criminal law.” (Scwartz & Allain, 2020b)

Modern slavery and the Kenyan legal system

In Kenya, there are well documented examples of human trafficking to the Middle East as well as domestic servitude, drugs and sex trade rings in the major urban areas but modern slavery has many hidden forms. Often hidden in plain sight and normalised through cultural, administrative and economic practices at the micro or community level of society. This then, is the focus of our investigation and the following pages speak to our approach to collaborating with the community. Building their capacity to: 1) elicit community stories of modern slavery as community researchers and community media practitioners; and 2) disseminate and present those stories within the community as a means of raising public awareness and organising for social change.

Before we turn to these activities and analysis, we would like to summarise the legal situation, as it relates to modern slavery in Kenya. We start with article 30(1) of the Kenya Constitution, which pronounces that a person shall not be in slavery or servitude neither shall a person be required  to perform forced labour. There are, within the Constitution, a number of other articles dealing with issues such as rights and freedoms; human dignity; labour relations; family; children; and security of the person that can be related to modern slavery in Kenya.

Penal Code 2003 criminalises kidnapping or abducting in order to subject to slavery in article 260. Slavery, or practices similar to slavery, may also form elements of an offence of trafficking under article 3 of the Counter-trafficking in Persons Act. Article 256 provides a definition of abduction – ‘any person who by force compels, or by any deceitful means induces, any person to go from any place is said to abduct that person.’ Article 261 states that any one who wrongfully concealing or keeping in confinement someone who has been kidnapped is guilty of a felony and could be imprisoned for up to 10 years, in other words would be treated the same as if guilty of the actual abduction or kidnapped (article 260).

Provisions related to servitude are found in the Constitution at article 30(1) which declares that a person shall not be held in servitude. Involuntary servitude may also form an element of an offence of trafficking under article 3 of the Counter-trafficking in Persons Act.

Provisions related to forced labour are found in the Constitution at article 30(2). It is declared that a person shall not be required to perform forced labour and the Penal Code which criminalises unlawful compulsory labour at article 266 is guilty of a misdemeanour. Article 266A of the Penal Code 2003 states that if the forced labour is for purposes of exploitation then the should be charged under the appropriate part of the Counter-trafficking in Persons Act. The 2007 Employment Act also prohibits forced labour at article 4 stating that forced labour may form an element of an offence of trafficking under article 3 of the Counter-trafficking in Persons Act.

Provisions related to trafficking in persons are found in the 2010 Counter-Trafficking in Persons Act which criminalises trafficking at article 3. Article 13 of the Sexual Offences Act also criminalises child trafficking for the purpose of sexual exploitation. In this Act, what appears to be a fairly rigorous interpretation for ‘exploitation’ is given at Article 2, followed by applied definitions of trafficking in persons at article 3;  acts that promote child trafficking at article 4 and the promotion of trafficking in persons at article 5. The International Crimes Act, 2008; the Sexual Offences Act #3 of 2006 revised edition 2007; the Children’s Act 2001 and the Employment Act, 2007 also speak to modern slavery.

For a fuller coverage of the legislative situation in Kenya, readers are directed to the part of ‘The Antislavery in Domestic Legislation’ database dealing with Kenya.

On the surface then, it would appear that there is a great deal of  statutory and legislative protection for the vulnerable against slavery and yet, as we are about to learn, slavery continues seemingly unchecked – hidden in plain sight!