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    June 06, 2023

    Africa: Between Decent Work and Discrimination: Mapping Legislative Exclusion of Domestic Workers from Labor Law in Africa

    Ziona Tanzer

    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.

    In the second category, domestic workers as a sector are not explicitly excluded from labor law; rather, they are structurally excluded from critical labor law protections which only apply to employers employing above a certain threshold number of employees. For example, preventative provisions on sexual harassment bind employers of 20 or more employees in Kenya (in Uganda, employers of more than 25 employees), while in Malawi, only employers of more than 5 employees are obliged to provide written contracts. In Nigeria, maternity protection provisions apply to industrial, commercial and agricultural undertakings, thereby excluding domestic workers. Similarly, the requirement to pay national minimum, wage, applies to employers of over 50 workers. These neutral frameworks “structurally” exclude domestic workers -frequently the sole employees in private homes- from labor law protection.

    While decent work presupposes inclusion within labor law protections, this in and of itself is frequently not sufficient to ensure decent work for domestic workers. For example, in eight of the nine countries surveyed, domestic workers are not legislatively excluded from collective labor rights. Despite the absence of exclusion, in none of the countries are they effectively able to enjoy dedicated bargaining structures in the sector. Further, labor inspectors are largely excluded from inspection of homes without either the consent of the owner or a court order, rendering law largely unenforceable.

    Hence, the third approach is to pass sector-specific regulations, which reflect the specific needs of workers in the sector and as such are positive models for regulation. However, even within these specific domestic worker regulations, in some cases, the standards entrenched for domestic workers are lower than those afforded other workers (e.g., disparities in Mauritius with respect to leave, hours of work. etc.). Further, there are tensions as to which standards prevail in the event of conflict between domestic worker regulation and labor law (e.g., in Ghana, labor law trumps regulations, while in Mauritius, regulation trumps labor law). In addition, critical issues that are specific to live in-domestic workers – another particularly vulnerable category of domestic workers, such as standards of accommodation, rights of access to family and visitors and freedom of movement – remain unaddressed in labor law frameworks.

    The report is, however, optimistic that the nine country constitutional frameworks could develop the doctrinal tools to effectively respond to discrimination. Indeed, many of their textual starting points include the recognition of intersectional disadvantage. For example, constitutions prohibit discrimination on a wide range of grounds, including “social origin” (Ethiopia, Lesotho) and “economic status” (Uganda, Ghana). Further, many of these constitutions explicitly obligate states to adopt special measures to address those who have historically discriminated against and eliminate laws customs and practices that oppress or cause harm to women. Accordingly, Mahlangu provides a critical precedent for analyses of the discriminatory impacts of facially neutral laws; and its use of intersectionality provides an important guide to “letting history in” to the conversation on discrimination and domestic work.

    Ziona Tanzer

    Senior Law Specialist, Solidarity Center, Washington, DC

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