The Maritime Labour Convention, 2006 (MLC) came into force internationally on the 20th of August, 2013 and was acceded to by Kenya on the 31st of July, 2014 meaning that, in terms of article VIII (4) of the MLC, the MLC came into force for Kenya, on the 31st of July, 2015. In accordance with article 2 (6) of the Constitution of the Republic of Kenya, the MLC is now part of the law of Kenya, although, as with all conventions, Kenya must take measures, both legislative and administrative, to implement certain provisions of the MLC.
It is important to note that in 2014, amendments to the Code implementing Regulations 2.5 and 4.2 of the MLC and appendices (hereinafter referred to as the 2014 amendments) were made to the MLC. The 2014 amendments entered into force on 18 January 2017 and, in brief require, inter-alia, that an expeditious and effective financial security system be put in place to ensure that shipowners provide compensation to seafarers and their families in the event of abandonment, death or long-term disability due to an occupational injury, illness or hazard.
Even though, Kenya has not made a declaration of acceptance to the 2014 amendments, it is not difficult to see how the same would be an enhancement of a seafarer’s rights under article 41 of the Constitution.
The implementation of the financial security requirements brought about by the 2014 amendments is ongoing, internationally. However, it has been noted that the following challenges to the implementation of the financial security requirements brought by the 2014 amendments, exist, i.e.
1. Insufficient mechanisms in place to ensure that vessels cannot trade without valid abandonment insurance;
2. Whilst the definition of abandonment is quite clear, the circumstances surrounding abandonment and the relationships between flag States, shipowners, their insurers and other entities with a commercial interest in the vessel, are extremely varied;
3. While in a number of cases, Protection and Indemnity (P&I) Clubs have responded promptly to applications and discharged their obligations as intended, in others they have not responded.
As such, while it is of great importance that the Government of Kenya should consider accepting the 2014 amendments because of the benefits to seafarers and also in the enhancement of the rights provided under article 41 of the Constitution of Kenya, such ratification should be subject to there being sufficient international mechanisms in place to ensure that vessels cannot trade without valid abandonment insurance.
Further, the Government of Kenya should consider developing a law (if the same has not been developed) to implement the MLC, especially in view of the 2014 amendments to the MLC.
Sufficient public participation will probably bring out other factors the Government of Kenya must consider.