The International Lawyers Assisting Workers (ILAW) recently launched a report, entitled "Mapping Discrimination and Domestic Workers in Africa,” which analyses International Labor Organization, United Nations and African regional approaches to domestic workers, and conducts nine case studies of regulation of domestic work in Ethiopia, Lesotho, Nigeria, Kenya, Uganda, Malawi, Mauritius, Ghana and South Africa. The report was born of two historic milestones in the recognition of domestic work: the ten-year anniversary of the adoption of ILO Convention 189 and the second anniversary of the landmark South African Constitutional court decision in Mahlangu v Minister of Compensation (2020).
C189 represents the most comprehensive source of norms on domestic worker rights, but it is not widely ratified. Indeed, it has only been ratified by five countries in Africa and only two in the study: South Africa and Mauritius. However, there is an increasing recognition of human rights violations in the domestic work sector by UN treaty bodies, which are widely ratified by the nine countries. Treaty bodies have recommended labor inspectors be empowered to inspect home without prior notice or consent of the homeowner, be included in workers compensation, social security schemes and national minimum wage. In the Special Rapporteur 2018 report on contemporary forms of slavery, former SR Urmila Bhoola describes domestic work as on a continuum, framed on the end by decent work, and on the other by slavery-like practices and forced labor. She concludes that not all women in domestic work are equally vulnerable to slavery like practices. On this analyses, decent work and inclusion in labor law protection decrease vulnerability and is the antidote to slavery like practices.
In Mahlangu, the South African Constitutional Court found that exclusion of domestic workers from claiming from the workers compensation fund amounted to an irrational differentiation and constituted direct discrimination. The court went further to find that since domestic workers are predominantly black women, the exclusion amounted to indirect discrimination on the grounds of race, class and gender, and was retrospectively unconstitutional. The court recognized that the legislative exclusion was a product of the invisibility of domestic workers, itself a legacy of colonial and apartheid legal systems.
“Mapping Discrimination and Domestic Workers in Africa” identifies three predominant forms of continued exclusion of domestic workers under labor law, in the post-colonial African context. The first approach is characterized by the exclusion of the category of “domestic worker” either entirely from labor law (Ethiopia) or their exclusion from critical labor law provisions, such as the exclusion from workers compensation (Lesotho) or the exclusion of recruiters of domestic workers from regulation (Uganda). The widespread exclusion of the subcategory of family members employed as domestic workers entirely from labor laws (Ethiopia, Uganda, Kenya, Nigeria, Mauritius) makes clear that they are of the most vulnerable domestic workers.