We have recently zeroed in on illegal immigrants operating in the country with impunity and under the patronage of powerful Government officials. We focused on one notorious Chinese goon called Wenjie Li, who is operating in Nairobi by the alias “Mr. James.” He has yet to be deported despite the PS in the Office of the President ordering the Immigration Department to do so.
Resentment towards expatriates in the Coastal belt as a result of foreigner’s jobs in the SGR is at an all-time high according to young Mijikenda youth, as foreign workers took up jobs that locals felt should have been theirs. Will this sad state of affairs transfer to other areas as the line moves to Naivasha? The Kenya Government must review its policies or come up with a solution to change this pathetic modus-operandi by the end of the year designed to address the issue both in Railways, Pipeline, Road and other infrastructural projects.
Before going any further, we all know that Uhuru’s misguided Standard Gauge Railway (SGR) project is a means to loot money, as it was inflated 5 times over, and as we have come to realise is only one track, plus has no provision for electric trains. Meaning that at some point in this lifetime, we will have to upgrade to a better rail network, which will be probably tendered by another set of crooks who will then inflate it as usual.
All employers should consider Kenyans fairly for job vacancies. For Contractors; Site Agents should be Kenyan Professional Engineers and their foremen, engineers, surveyors and assistant should also be Kenyan unless proven that no Kenyans have requisite skills. Contractors should only hire an expat if no suitable Kenyans apply within 14 working days of advertisement of such jobs openly in the respective County Government notice boards. The rules should apply to jobs paying less than KSHs 120,000 per month and to companies with 20 staff or more.
It is clear that in the Kenyan context the legislation designed to make sure locals are considered fairly for jobs is ineffective, the Labour Unions are ineffective and most cases only serve to extort bribes from foreign contractors after which they disappear. It is very unfortunate that we have never heard Francis Atwoli renowned for barking in the media every now and then to gain relevance, speaking about these case of illegal Chinese migrants taking jobs meant for Kenyans.
Legislation should also punish noncompliant union representatives and send them to jail because they have failed miserably to curtail such occurrences. Most are non-patriotic, greedy fat bellied chaps. Engineering Consultants who supervise such works and turn a deaf ear should also be held liable for such misgivings. It is such misgivings that have stagnated the growth of the Kenyan economy which does not promote inclusive growth and has failed to redistribute wealth to the poor.
Working hours & Overtime
In Kenya most overtime in construction is not paid and this is illegal. According to the Basic Conditions of Employment Act (BCEA), the maximum normal working time allowed is 45 hours weekly. This is nine hours per day (excluding a lunch break) if the employee works a five-day week, and eight hours per day (excluding a lunch break) if the employee works more than 5 days per week. The statutory limitation of 45 hours per week means that the employee may not work more than 45 hours per week normal time.
All work above that should be defined as overtime and should be paid for. All overtime should be voluntary and may only be worked by agreement between employer and employee. Maximum permissible overtime per day and per week should be set. Remuneration must be at 1.5 times the normal wage rate except for Sunday work and work on public holidays, which must be remunerated at twice the normal wage rate.
Discrimination
There should be no employment discrimination based on race, color, religion, sex, or an Equal Pay policy which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination should be in place. Other aspects such as Age Discrimination & Discrimination against qualified individuals with disabilities should also be factored in.
Greed and Corruption
Economic growth in sub-Saharan Africa in 2014 was slightly above 6%, according to the International Monetary Fund. Africa as a whole has a GDP in excess of US$2 trillion, and is home to seven of the world’s fastest growing economies. And yet, major structural changes are still needed if it is ever going to catch up with the rest of the world.
Much of Africa remains shackled by poor infrastructure, greed and corruption. While a great deal of the sub-Saharan region has progressed towards achieving the UN’s Millennium Development Goals (MDGs), a report in July 2014 concluded that persistent obstacles and new challenges meant the area would not meet most of the goals – including the most important one of halving poverty – by the 2015 target date.
Local Contractual rules not followed meaning MORE THAN 40% CONTRACTUAL WORK should be given to Kenyan contractors/sub-contractors.
Some Kenyan Contractors with the help of cunning lawyers get lucrative contracts but sell the work to foreign companies in disguise as local companies under the watchful dozing eye of the most corrupt institution in Kenya today, The National Construction Authority a case in point are: the firms providing security for the SGR, the motor vehicle repair companies and the machinery and spare parts shops. All these should be strictly audited for Kenyan ownership to gauge for example if the 40% local content condition set by the law was achieved. If not then someone should be accountable.
How then do we create employment for Kenyans, How do we grow local companies if the subcontractors fraudulently subcontract their companies to foreigners? This happens to road, railway, irrigation & building contracts no wonder no money is felt on the ground. Since President Uhuru Kenyatta got into office, people are broke. Establishments are closing. And instead of addressing this, he prefers to engage in cheap publicity stunts and rhetoric, claiming that he is doing a good job.
The figures speak for themselves. Chinese companies and an estimated one million Chinese workers have poured into Africa over the past decade. Between 2001 and 2010, China’s Export-Import Bank loaned almost US$63 billion to African countries, which was 25% more than the World Bank provided. Trade between Africa and China has grown tenfold, and China has replaced the United States as the continent’s biggest trading partner.
In an article by Harold Ayodo posted recently in The Standard, foreign construction firms must be registered locally and certify stringent conditions before undertaking multi-million shilling real estate projects. The National Construction Authority Act stipulates that foreign construction firms incorporated outside the country should be accredited before engaging in projects. And in a bid to cushion local contractors from the expertise and financial muscle of foreign firms, specific lucrative contracts will be strictly reserved for them. Some contracts are exclusively reserved for local contractors as opposed to open bidding, which attracts all interested bidders. Construction goes on on Outering Road, Nairobi.
The NCA ACT spells out terms for foreign contractors. Moreover, foreign contractors will only be eligible to register for a building contract above Sh500 million as oppossed to local contractors eligible for all categories of contracts. Under the regulations a foreign contractor is defined as a firm incorporated outside Kenya or incorporated in Kenya but 51 per cent of the shares are held by a non-Kenyan. According to the regulations, under a joint venture contract, it will be compulsory to recruit employees from the local labour market. In cases where technical or skilled foreign employees are required, the foreign firms must seek prior written permission and approval of the national Construction Authority.
Foreign contractors must give a written undertaking that they will either, enter into a joint venture agreement with local contractors, or undertake to locally subcontract at least 30 per cent of the value of the contract. According to the regulations, a breach of an undertaking has legal repercussions as the authority will be entitled to file a claim in damages against the foreign contractor.
According to provisions of the National Construction Authority Act, foreign construction firms must prove that they will only undertake specific contracted and certified works. They must also have a certificate of compliance from the Registrar of Companies confirming that they traded as qualified contractors before coming to the country. The firms must swear affidavits that once their contracted works are completed and period of maintenance has elapsed, they will wind up and not engage in construction locally. In a move to crack down on cowboy contractors, the National Construction Authority Board may require applicants to appear before it to produce documentary evidence of competence. The legal restrictions also require the accredited foreign firms to only undertake construction work only for the agreed period.
