"It is the Government policy that the economy of Kenya should be manned by trained and competent citizens. Permits are issued to foreign nationals with skills not available at present on the Kenya Labour Market, only on the understanding that effective training programmes are undertaken to provide trained citizens within a specified period."
The above quote is not lifted from a government policy paper, press brief or press statement. It is Kenya's legal policy for dealing with immigrant workers. It is part of the Laws of Kenya. It is found in Form 25 of the First Schedule of the Kenya Citizenship and Immigration Regulations issued in 2012. These regulations were made under the Kenya Citizenship and Immigration Act.
China and Kenya have through their corporations signed an agreement for the construction of the Standard Gauge Railway. It has been reported in the media that 5,000 Chinese workers will be part of the workforce in the construction of the rail.
The deployment of 5,000 Chinese Workers to construct a railway line in Kenya in the 21st Century raises difficult economic, social, and legal questions.
China is a superpower. It is poised to become the biggest economy in the world. Within a few years the size of its economy will overtake America's. It will soon have the highest purchasing power in the world. Though it has the highest population in the world, the rate of unemployment in China is approximately four per cent.
Kenya is not part of the developed world. Nor is it an emerging economy. It is certainly not in the league of China's economic prowess. Kenya's unemployment rate according to the 2006 statistics of the Kenya National Bureau is over 40 per cent. Kenya therefore needs the 5,000 jobs available in the construction of the rail much more than China and the Chinese. Kenyans need every single available job opportunity. The 5,000 Chinese workers will be taking up jobs and earning income at the expense of 5,000 Kenyan households. Assuming an average of three children in each household, and members of the extended family, at least 500,000 Kenyans will lose the benefit of these 5,000 jobs to the Chinese.
The government is yet to disclose why construction of the rail needs so many immigrant workers. Do the 5,000 Chinese workers have professional qualifications, expertise or experience that Kenyans do not have? What are these professional qualifications or specialisation? Does the construction of a railway need 5,000 immigrant professionals or specialists?
The Government should give full details of the qualifications and expertise of these 5,000 workers. It has a duty to disclose what their individual salary and benefits will be, and how long they will work in Kenya. Any person who wishes to employ a foreigner in Kenya in their firm is required by the law to provide this information. The government should be no exception.
If any of the 5,000 Chinese workers are semi-skilled or unskilled the government will be in breach of the law. Even if they are skilled, the government has a legal obligation to satisfy itself that there are no Kenyans with similar skills.
Under the law, after the construction of the rail, there should be at least 5,000 Kenyans with special skills learnt from the 5,000 specialist Chinese. If not, the Government would have acted unlawfully, and broken its campaign promise to create and make available jobs for Kenyans.
The Constitution and the Kenya Citizenship and Immigration Act gives any Kenyan the power to move the High Court for full disclosure of the proposal to import labour from China and to challenge the issuance of the 5,000 work permits if it is not in the interest of Kenya.
By Kethi Diana Kilonzo (Published in The Standard)
The Author is a Kenyan lawyer, lecturer and accountant. She is the daughter of the late Makueni senator Mutula Kilonzo.
www.doitadigital.com