Ugandan migrant workers not protected

It is not a secret that the Ugandan economy cannot absorb the increasing number of Ugandans joining the working group. This was the case even before the Covid19 pandemic. With this in mind, Uganda has tried to leverage labour externalization.

This business informally started in 2003 with the export of Ugandan mercenaries to Iraq. The Employment (Recruitment of Migrant Workers abroad) Statutory Instrument No.62 of 2005 made the business formal. This had its problems that have been subject to a lawsuit of a case yet to be determined by the High court challenging its legality and therefore its validity.

The business of labour externalization has continued to grow however, there are many cases of physical, sexual and mental abuse of the migrant workers, suicides of migrant workers, unexplained deaths, human trafficking, organ harvesting and other associated evils. The public mainly learns about these through social media.

The response from the government in the purported effort to clean the industry has been denial in some cases, holding stakeholder meetings and entering into memorandum of understanding with some host countries. This has however not helped in combating the aforementioned evils particularly human trafficking.

There is also a dangerous thought that whatsoever government sanctions cannot amount to human trafficking. This school of thought is usually fronted by the recruitment agencies ignoring actions like forceful confiscation of passports, changing terms of employment on arrival in the host countries etc that satisfy the ingredients of the crime of human trafficking.

The most recent regulation,  The Employment (Recruitment of Migrant Workers) Statutory Instrument. No. 47 of 2021 by the Minister of Gender labour and Social Development unfortunately does not in any way solve the problems associated with Labour externalization as it majorly deals with the licensing of recruitment companies and complaint mechanisms. By its Regulation 40, it repeals The Employment (Recruitment of Migrant Workers abroad) Statutory Instrument No.62 of 2005. The problems of the industry cannot be solved by shortcut methods. Even the presidential directive on certificates of good conduct will not help.

There is need for an independent bill to deal with the complicity of the industry or the amendment of the Employment Act to extensively deal with labour externalisation. Just like many may ask,  what is so hard with amending the act? What happened to fast-tracking The Employment Amendment Bill in parliament which was to provide for Uganda Migrant Workers Abroad, Sexual Harassment provisions and more protection for domestic workers?

In the first place, Statutory Instrument No. 47 of 2021 differs just slightly from Statutory Instrument No. 62 of 2005 but without protection for the migrant workers abroad. It differs in form but not the substance. Strikingly, just like Statutory Instrument No. 62 of 2005 was illegal, Statutory Instrument No. 47 is illegal too.

The employment Act 2006 section 3(5) only provides that nothing applies to employment outside Uganda and therefore the employment act only deals with employment, recruitment and employee-employer relationship within Uganda. Section 97 of the Employment act 2006 only empowers the minister to make regulations within the armpits of the Act and does not empower the minister to make regulations of labour externalization over and above the scope of the Act. In short, the Minister acted ultra vires which is loosely translated as acting beyond his powers. 

The other interesting aspect is that Statutory Instrument No. 47 of 2021 does not capture many of the “Rules and Regulations Governing the Recruitment And Employment Of Ugandan Migrant Workers Abroad” which were made by the Ministry of Gender, labour and social development and effectively shared with the International Labour Organisation (ILO) which is detailed and included among others assistance to workers and placed a bigger responsibility on agencies.

The Rules and Regulations shared with ILO provide for Execution of orders, Reviews and Claims, Recruitment, Violation and Related Cases, Formulation of Employment Standards, Placements and documentation costs, legal Assistance and Enforcement, Departure contract workers, Insurance of Migrant Workers abroad, Trade Test and Medical examination, Advertisements, Inspection of the recruitment Agencies and Licensing. 

The “Rules and Regulations Governing the Recruitment and Employment Of Ugandan Migrant Workers Abroad” by the Ministry of Gender Labour a Social Development would just with a few modifications make a very good Act that would protect the Migrant workers. Statutory Instrument No. 47 of 2021is obviously to hoodwink the unsuspecting members of the public and for the government to continue milking the recruitment agencies while benefiting from the remittances off the suffering of the many Ugandans.

Mr  Ivan Bwowe is a lawyer
[email protected].