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In the communication received in November 2009, the Government indicates that, according to the national legislation, prison labour is a voluntary activity based on the prisoners’ consent and performed in accordance with the prisoners’ state of health and their physical and psychological abilities. According to the Government, a personal file shall be constituted in regard to each prisoner called on to perform prison work, which necessarily contains a medical certificate and a document confirming the prisoner’s explicit acceptance to work. The Committee takes note of this information, but observes, however, that voluntary character of prison labour does not follow from the legislation, which stipulates that “prisoners shall be given useful work” (section 2 of Inter-Ministerial Order of 26 June 1983 on the modalities of the use of a prison workforce by the National Office of Educational Works) and that “a prisoner may be assigned useful work by the director of the penitentiary establishment” (section 96 of Act No. 05-04 of 6 February 2005 establishing the Code on Penal Institutions and Social Integration of Inmates).

The Committee asks the Government to supply sample copies of personal files of prisoners called on to perform prison work, and in particular, copies of documents confirming the prisoner’s explicit acceptance to work. The Committee also considers that, if in practice prison labour is voluntary, it would be appropriate to amend legislation accordingly, in order to avoid any legal ambiguity. It hopes that the Government will supply, in its next report, information on the progress made in this regard. The Committee also repeats its previous comments, to which the Government has not replied in its report.

Article 1(a) of the Convention. Penalties for expressing political views. For many years the Committee has referred to Act No. 90-31 of 4 December 1990 concerning associations, certain provisions of which allow the imposition of prison sentences involving the obligation to work in circumstances which are covered by the Convention. The Committee previously noted that, under section 5 of the Act, an association’s legal status is automatically invalidated if its objectives are contrary to the established institutional system or public order or offend morals or the laws and regulations in force. It further noted that, under section 45 of the Act, anyone who manages, administers or actively participates in an association that has not been approved or which has been suspended or dissolved, or facilitates meetings of the members of such an association, shall be liable to imprisonment ranging from three months to two years involving the obligation to work.

The Committee noted the information sent by the Government to the effect that the penalty laid down by section 45 of Act No. 90-31 of 4 December 1990 concerns persons breaching the legal provisions regarding the establishment of associations and not persons holding certain political views, which could be expressed in full freedom subject to the legislation in force. In its General Survey of 2007 on the eradication of forced labour, the Committee indicated that the range of activities which must be protected, under the present provisions of the Convention, from punishment involving forced or compulsory labour, includes the freedom to express political or ideological views, and also various other generally recognized rights. The latter include the rights of association and of assembly, through which citizens seek to secure the dissemination and acceptance of their views and the adoption of policies and laws reflecting them, and which may also be affected by measures of political coercion (see paragraph 152 of the General Survey). The provisions imposing the penalty of imprisonment involving the obligation to work on any infringement of the rules governing the establishment, dissolution or approval of an association are therefore contrary to the Convention. The Committee therefore again requests the Government to take the necessary steps to bring its legislation into conformity with the provisions of the Convention, either by amending section 45 of Act No. 90-31 of 4 December 1990 or by explicitly exempting the persons convicted under this section from the obligation to work.

The Committee previously asked the Government to supply information on the practical application of section 87bis of the Penal Code (Ordinance
No. 95-11 of 25 February 1995) on “terrorist or subversive acts”, which permits imprisonment involving compulsory labour for anyone convicted of committing a number of very broadly defined acts. It noted the information sent by the Government to the effect that section 87bis of the Penal Code deals with acts affecting the security of the State, territorial integrity, national unity, stability and the normal working of institutions, through use of violence. The Government indicated that acts having a peaceful objective do not come under the scope of section 87bis.

The Committee observed, however, that the very general terms of section 87bis of the Penal Code – obstructing traffic or freedom of movement on public thoroughfares and occupying public places with gatherings, damaging means of communication and transport, public and private property, taking possession thereof or unduly occupying it, obstructing the actions of the public authorities or the free exercise of worship or public freedoms and also the functioning of public service establishments, hindering the operation of public institutions – might enable peaceful acts to be penalized. The Committee underlines the fact that, although anti-terrorist legislation responds to the legitimate need to protect the safety of the population against the use of violence, it can still become a means of political coercion and of repression of the peaceful exercise of civil rights and liberties, such as freedom of expression and freedom of association. The Convention protects these rights and liberties against repression which is exercised by means of penalties involving an obligation to work, and the limits which the law may impose on them must be strictly defined.

The Committee therefore hopes that the Government will soon take the necessary steps to limit the scope of section 87bis of the Penal Code so that persons who peacefully express ideological opposition to the established political, social or economic system cannot be sentenced to a term of imprisonment which includes the obligation to work.

Article 1(d). Penalties for participating in strikes. For a number of years the Committee has referred to section 41 of Act No. 90-02 of 6 February 1990 on the prevention and settlement of collective labour disputes and the exercise of the right to strike, which states that requisition orders may be issued pursuant to the legislation in force for workers on strike who hold posts in public institutions or administrations, or in enterprises, that are essential for the safety of persons, plant and property and for the continuity of public services which are essential to the vital needs of the country, or who carry on activities essential to supplying the public. Section 42 states that, without prejudice to the penalties laid down in the Penal Code, refusal to execute a requisition order constitutes serious professional misconduct.

The Committee previously noted that sections 37 and 38 of Act No. 90-02 establish a list of essential services in which the right to strike is limited and for which a compulsory minimum service must be organized. It observed that the list is very broad and includes services such as banking and radio/television services, which, according to the Committee on Freedom of Association, do not constitute essential services in the strict sense of the term (see Digest of decisions and principles of the Freedom of Association Committee, 2006, paragraph 587, and also the General Survey of 1994 on freedom of association and collective bargaining, paragraphs 159–160). The list in sections 37 and 38 of Act No. 90-02 also includes court registry services.

The Committee also referred to section 43 of Act No. 90-02 prohibiting strikes in certain sectors of public institutions and administrations, such as the judiciary and customs. Furthermore, section 55(1) of Act No. 90-02 provides that anyone who causes or seeks to cause, or maintains or seeks to maintain, a concerted collective stoppage of work in conflict with the provisions of this Act, but without violence or assault against persons or property, shall be liable to imprisonment ranging from eight days to two months and/or a fine.

The Committee noted the Government’s information in a previous report that the imposition of any penalty on workers taking part in a strike is prohibited. It also noted the Government’s statement that the organization of a minimum service provided for by Act No. 90-02 does not constitute forced labour, the objective being to ensure the functioning of public institutions. While noting these indications, the Committee recalled that penalizing participation in strikes through imprisonment including the obligation to work is contrary to the present provisions of the Convention. It also recalled that as an exception to the general principle of the right to strike, the essential services in which this principle may be entirely or partly waived should be defined restrictively, and therefore should include only those services, the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see General Surveys on freedom of association and collective bargaining, paragraph 159, and on the eradication of forced labour, paragraph 185). The Committee again requests the Government to take the necessary steps to ensure that no worker may be sentenced to imprisonment including the obligation to work for going on strike and also to supply information on the practical application of sections 41, 43 and 55(1) of Act No. 90-02, stating in particular the number of persons convicted and supplying copies of any court decisions issued.

The Committee is raising other points in a request addressed directly to the Government.