Comments adopted by the CEACR: Botswana

Repetition

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. The Committee welcomes the enactment of the Anti-Human Trafficking Act in 2014, providing for the prohibition of human trafficking in Botswana, the establishment of a Human Trafficking (Prohibition) Committee, as well as measures on the protection and assistance of victims of trafficking. It notes that under the terms of section 9, the offence of trafficking in persons for the purposes of forced labour is punishable by a fine not exceeding 1 million Botswana pula (BWP) (approximately $93,170) and/or a sentence of imprisonment of up to 30 years. The Committee further notes that, in its report to the Human Rights Council for the Universal Periodic Review of January 2018, the Government indicates that an Anti-Human Trafficking National Action Plan has been developed for the 2017–20 period, following consultations with civil society organizations to raise awareness on human trafficking issues (A/HRC/WG.6/29/BWA/1, paragraphs 119 and 149). The Committee requests the Government to provide information on the application in practice of the Anti-Human Trafficking Act, including the number of investigations, prosecutions, convictions and penalties imposed. The Committee further requests the Government to provide information regarding the adoption and implementation of the Anti-Human Trafficking National Action Plan, as well as on the activities carried out by the Human Trafficking (Prohibition) Committee.

Article 2(2)(c) of the Convention. Work of prisoners for the benefit of private individuals. In its previous comments, the Committee noted that under section 95(1) of the Prisons Act (Cap. 21:03), a prisoner may be employed outside a prison under the immediate order and for the benefit of a person other than a public authority. The Government indicated that this section had never been implemented in practice, and that the conditions of work, earning schemes and contract guidelines of prisoners had not yet been developed to provide for the engagement of prisoners in work for private individuals. It also indicated that prisoners assigned to work for private parties shall do so of their own free will and that their payment would be based on the prescribed earnings scheme. In this respect, the Government stated that consultations with the relevant stakeholders were under way, in order to amend section 95(1) of the Prisons Act.

The Committee notes with regret the Government’s information that no consultations have been held since the last report. It wishes to recall that, to be compatible with the Convention, prisoners’ work for private parties must be performed on a voluntary basis, implying the free and informed consent of the prisoners and a certain number of safeguards, especially regarding remuneration and occupational safety and health, indicating the existence of conditions of work which approximate to those of a free employment relationship (see the 2012 General Survey on the fundamental Conventions, paragraph 279). The Committee therefore requests the Government to take the necessary measures to amend section 95(1) of the Prisons Act, in order to ensure that any work or service performed by prisoners for private entities is carried out voluntarily, with their formal, freely given and informed consent, such consent being authenticated by conditions of work approximating those of a free labour relationship. The Committee requests the Government to provide information on any progress made in this regard.

Repetition

Article 1(a) of the Convention. Sanctions involving the obligation to work as a punishment for expressing political views or views ideologically opposed to the established political, social or economic system. The Committee previously noted that sentences of imprisonment, involving compulsory prison labour pursuant to section 92 of the Prisons Act, Cap 21:03 of 1979, may be imposed under sections 47 and 48 of the Penal Code on any person who prints, makes, imports, publishes, sells, distributes or reproduces any publication prohibited by the President “in his absolute discretion” as being “contrary to the public interest”. Similar sentences may be imposed under section 51(1)(c), (d) and (2) concerning seditious publications. Sentences of imprisonment may also be imposed under sections 66–68 of the Penal Code on any person who manages, or is a member, or in any way takes part in the activity of an unlawful society, particularly of a society declared unlawful as being “dangerous to peace and order”. In this connection, the Committee observed that the above provisions are worded in terms broad enough to lend themselves to application as a means of punishment for the expression of views and, in so far as they are enforceable with sanctions involving compulsory labour, they are incompatible with the Convention. The Committee therefore requested the Government to take appropriate measures, on the occasion of the revision of the Penal Code, to bring the above provisions into conformity with the Convention.

The Committee notes with regret the Government’s statement, in its report, that no amendment to the Penal Code is planned. It wishes to recall once again that Article 1(a) of the Convention prohibits punishment by penalties involving compulsory labour, including compulsory prison labour, of persons who, without having recourse to violence, express political opinions or views opposed to the established political, social or economic system. The Committee expresses the firm hope that appropriate measures will be taken without delay, in both law and practice, to ensure that no penalties involving compulsory labour may be imposed for the peaceful expression of political views opposed to the established system, either by restricting the scope of application of these provisions to situations of violence, or by repealing sanctions involving compulsory prison labour. The Committee requests the Government to provide information on the developments made in this regard.

Article 1(c). Punishment for breaches of labour discipline. The Committee previously noted that section 43(1)(a) of the Trade Disputes Act (No. 15 of 2004) punishes with imprisonment involving compulsory prison labour any wilful breach of a contract of employment by an employee who is acting either alone or in combination with others, if such breach affects the operation of essential services. The Committee observed that the list of essential services specified in the Schedule to the Trade Disputes Act includes services such as the Bank of Botswana, railway services, and transport and telecommunications services necessary to the operation of all these services, which did not seem to meet the criteria of essential services in the strict sense of the term.

The Committee notes the Government’s indication that the list of essential services is going to be reviewed by a task force which has been established for this purpose, within the framework of the ongoing labour law review process. The Committee also notes, referring to its comments made in 2017 under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), that the Trade Disputes Act has been amended in 2016, in response to new developments and the specific circumstances in the country. It notes that the list of essential services was thus expanded to include teaching services, veterinary services and diamond sorting, cutting and selling services. Referring to its General Survey of 2012 on the fundamental Conventions (paragraph 311), the Committee points out that essential services should be understood in the strict sense of the term, that is services, the interruption of which may endanger the life, personal safety and health of the whole or part of the population, and observes that the aforementioned essential services do not seem to meet the criteria of essential services in the strict sense of the term. The Committee therefore expresses the firm hope that the Government will take the necessary measures, in the framework of the current labour law review process, to ensure that no prison sentences involving compulsory labour are imposed as a punishment for breaches of labour discipline affecting the operation of essential services that do not meet the criteria of essential services in the strict sense of the term. It requests the Government to provide information on the progress made in this regard.

Repetition

Article 1 of the Convention. National policy and the application of the Convention in practice. In its previous comments, the Committee noted the Government’s indication that within the framework of the national Action Programme on the Elimination of Child Labour (APEC), several measures were initiated, such as: revision of relevant legislation on child labour including labour laws; drafting of the list of types of hazardous work prohibited to children under 18 years of age; development of awareness-raising campaigns on child labour as well as development of training modules, tools and manuals for stakeholders and implementers. Moreover, the Committee noted from a report on Botswana by the ILO–IPEC in June 2012 that, within APEC, 200 teachers were trained under the ILO–IPEC project entitled “Supporting Children’s Rights through Education, the Arts and the Media” (SCREAM) and a total of 1,927 children were prevented and withdrawn from child labour, including in the agricultural sector.

The Committee notes the absence of information on this point in the Government’s report. It notes the Government’s indication, in its report to the United Nations Human Rights Council for the Universal Periodic Review of January 2018, that civil society organizations have reported that child labour is an issue of paramount importance in Botswana (A/HRC/WG.6/29/BWA/1, paragraph 7). The Committee requests the Government to provide information on the actions undertaken and the results achieved to ensure the progressive elimination of child labour, particularly within the framework of the implementation of the APEC.

Article 2(1). Scope of application. The Committee previously noted that, in accordance with its Part 3, the Employment Act, 1982, applies only to any person who has entered into a contract of employment for the hire of her/his labour. It had noted the statement in the ILO–IPEC Outline Summary for the project “Contributing to the elimination of worst forms of child labour in Botswana with special emphasis on agriculture and commercial sexual exploitation” of March 2010 that children working in the informal economy, such as in agriculture or in the home, have less protection and support than children working in the formal economy.

The Committee notes the Government’s statement that it will take into consideration the Committee’s comments on the protection of children in the informal economy during the ongoing review of labour laws. It observes that the Government held a Labour Law Review Committee workshop in August 2018. The Committee once again reminds the Government that the Convention applies to all sectors of economic activity and covers all forms of employment or work whether they are carried out on the basis of an employment relationship or not, and whether they are remunerated or not. The Committee expresses the firm hope that the Government will take the necessary measures to ensure that the review of labour laws does not fail to take into account the Committee’s comments, thus ensuring that the protection afforded by the Convention is accorded to all children carrying out economic activities without an employment contract, particularly children working on a self-employed basis or in the informal economy, including in agriculture. It requests the Government to provide information on any progress made in this regard.

Article 2(3). Age of completion of compulsory schooling. The Committee previously noted the Government’s indication that basic education comprises ten years of education which, if started at the age of 7 years, would be completed at the age of 16 years. It noted the Government’s statement that schooling is not compulsory, though legislation to make basic education compulsory was under consideration. It also noted that, according to section 18 of the Children’s Act of 2009, every child has a right to free basic education and that any parent or guardian who, without reasonable excuse, denies a child the opportunity of going to school shall be guilty of an offence and shall be punished.

The Committee notes the Government’s indication that the Ministry of Basic Education is currently reviewing the Education and Training Act of 1967 to align it with the Children’s Act of 2009 with a view to making basic education free and compulsory. The Government indicates that a draft Bill has been prepared and has to be submitted to Parliament for consideration. Considering that compulsory education is one of the most effective means of combating child labour, the Committee expresses the firm hope that the revision of the Education and Training Act will ensure the introduction of compulsory schooling up to the minimum age for admission to employment or work of 15 years, in compliance with Article 2(3) of the Convention. It requests the Government to provide information on the progress achieved in this respect.

Article 3(1) and (2). Hazardous work. With regard to the adoption of the list of hazardous types of work prohibited to children under 18 years of age, the Committee refers to its comments under the Worst Forms of Child Labour Convention, 1999 (No. 182).

Article 7(3). Determination of light work. In its previous comments, the Committee noted the Government’s statement that it would determine light work activities that may be permitted to children of 14 years of age. The Government also stated that, in practice, children perform light work such as kitchen and household help, the distribution of flyers or advertisements and childcare.

The Committee notes the Government’s indication that the determination of light work activities permitted to children will be considered during the ongoing labour law review process. The Government further states that the Commissioner’s office must give its approval to any company wishing to hire a child in light work activities. The Committee hopes that the Government will take the necessary measures to determine the types of light work activities that may be undertaken by children of 14 years of age and above, within the framework of the labour law review process. It requests the Government to provide a copy of the list of the types of light work permitted for children, once it is adopted.

The Committee expresses the hope that the Government will continue to take into consideration the Committee’s comments during the course of the labour law review process. The Committee reminds the Government that it may avail itself of ILO technical assistance in order to bring its legislation into conformity with the Convention.

Repetition

Article 7(2) of the Convention. Effective and time-bound measures. Clause (c). Access to free basic education. The Committee previously noted the Government’s information that, in Botswana, the seven-year primary education is free while secondary education is highly subsidized, with parents only contributing 5 per cent towards the cost of education. Moreover, children whose families cannot afford this contribution are exempted and are further provided with other educational necessities like uniforms and books. It noted that the Ministry of Education and Skills Development (MOESD) together with UNICEF have been working to develop an Out-of-School Education for Children Programme which seeks to secure a new deal for marginalized and out-of-school children. Finally, the Committee noted that the proportion of primary-aged children not in primary school has not dropped below 10 per cent in the last ten years, and that, according to UNICEF statistics for 2008–12, the net attendance rates in primary education are 85.5 per cent for boys and 88.2 per cent for girls, and in secondary education it is 35.5 per cent for boys and 43.6 per cent for girls.

It notes the Government’s statement in its report that a number of measures were initiated to improve attendance and reduce drop-out rates, such as the implementation of the Inclusive Education Policy, the introduction of the Reception Class Programme in primary schools in 2014, and the development of the Out-of-School Education for Children Policy. It notes that, according to the Government, the completion rate in primary education was 99.3 per cent in 2015. The Government also states that the Ministry of Basic Education has developed an access and retention draft plan, to be approved and implemented in 2018. As reported by the Global Education Monitoring Report of 2017–18, the gross enrolment ratio in primary education was 108 per cent in 2014–15, and the primary adjusted net enrolment ratio was 91 per cent. The Committee notes that, according to the UNESCO statistics, nearly 17 per cent of children are out of school. Considering that education is key in preventing the engagement of children in the worst forms of child labour, the Committee encourages the Government to pursue its efforts to facilitate access to free basic education. It requests the Government to continue to provide information on the measures taken in this regard, and the results obtained, particularly with regard to increasing the school enrolment and completion rates and reducing school drop-out rates, in primary and secondary education.

Clause (d). Identifying and reaching out to children at special risk. HIV/AIDS orphans and other vulnerable children (OVCs). The Committee previously noted that a number of significant measures have been taken by the Government for the care and support of HIV/AIDS orphans and OVCs, in the framework of the national Programme for orphans and OVCs, such as maintaining a registry of all orphans and children in need of care, providing these children with food rations and toiletries on a monthly basis, supporting them with uniforms and transport facilities to school, and initiating a special dispensation programme through government sponsorship for tertiary education. The Committee also noted that, according to the Government, in the year 2013–14, a total of 1,600 orphans and OVCs were enrolled in schools and vocational training.

The Committee notes the Government’s indication that the national programme for orphans and OVCs continues to be implemented, as well as the special dispensation for facilitating access to tertiary and vocational education, which has sponsored 8,189 children since 2010, including 1,164 for the year 2017–18. It states that more than 27,000 children are currently registered as orphans. The Government also indicates that the programme for orphans and OVCs provides psychosocial support, aiming at building life skills among OVCs. The Committee notes that, in its report to the Human Rights Council for the Universal Periodic Review of January 2018, the Government stated that it would conduct the second situational analysis on OVCs during the course of 2017 (A/HRC/WG.6/29/BWA/1, paragraph 47).

The Committee observes that, in Botswana, according to estimates made by UNAIDS in 2017, approximately 61,000 children aged 0 to 17 years are orphans due to HIV/AIDS. It takes note of the Government’s indication, in its report to the Committee on the Elimination of Discrimination against Women of November 2017, that HIV disproportionally affects women and girls and, therefore, the National HIV/AIDS Policy and its strategic framework, revised in 2013, has embraced gender sensitivity (CEDAW/C/BWA/4, paragraph 19). It notes that, according to UNAIDS, the Government elaborated a new National Strategic Framework for HIV and AIDS for the 2018–23 period, which has positioned HIV prevention as paramount. Recalling that OVCs are at an increased risk of being engaged in the worst forms of child labour, the Committee encourages the Government to pursue its efforts to ensure that children orphaned by HIV/AIDS and OVCs are prevented from being engaged in the worst forms of child labour. It requests the Government to continue providing information on the measures taken in this regard and on the results achieved, particularly as part of the national programme for orphans and OVCs and of the National Strategic Framework for HIV and AIDS for 2018–23.

Repetition

The Committee notes the observations of the Botswana Federation of Trade Unions (BFTU), received on 1 September 2018.

Articles 3(a) and 6 of the Convention. All forms of slavery or practices similar to slavery and programmes of action. Sale and trafficking of children. The Committee takes due note of the adoption of the Anti-Human Trafficking Act in July 2014, introducing a specific offence of trafficking in persons in the national legislation, as well as the establishment of a Human Trafficking (Prohibition) Committee in 2015. It notes that the perpetrator of trafficking for the purposes of forced labour or exploitation of another person’s prostitution is liable to a term of imprisonment of up to 30 years and/or a fine not exceeding 1 million Botswana pula (approximately US$93,170), pursuant to section 9 of the Anti-Human Trafficking Act. The law provides for the creation of centres for child victims of trafficking, to ensure protection, care, counselling, education and rehabilitation of children (section 18). The Committee notes the Government’s indication in its report that a National Action Plan on human trafficking has been developed. Furthermore, it notes the Government’s indication that the Southern African Development Community (SADC) Strategic Plan on combating trafficking in persons, especially women and children for the 2009–19 period, is being implemented through the SADC Regional Political Cooperation Programme. The United Nations Office on Drugs and Crime (UNODC) indicates that together with SADC Member States, including Botswana, UNODC has developed an Anti-Trafficking in Persons Data Collection System, to ensure the collection of reliable data on the crime of trafficking in persons.

The Committee notes the observations of the BFTU reporting the continued existence of practices of trafficking in children despite national laws and control measures. The BFTU also states that public education on trafficking and slavery is not adequately done. The Committee urges the Government to strengthen its efforts to ensure the effective application of the Anti-Human Trafficking Act and requests it to provide information in this regard, including the number of infringements reported, investigations, prosecutions, convictions and penalties applied for the sale and trafficking of children under 18 years of age. It also requests the Government to provide information on the adoption and implementation of the National Plan of Action on human trafficking and its impact in terms of the elimination of trafficking in children.

Article 4(1). Determination of hazardous work. The Committee previously noted the Government’s statement that the Tripartite Labour Advisory Board had prepared a draft list of hazardous types of work prohibited to young persons, which was being circulated to the relevant ministries for their endorsement. The Committee accordingly requested the Government to pursue its efforts to ensure the adoption, in the near future, of the list determining the types of hazardous work prohibited to persons under 18 years of age.

The Committee notes with interest the drafting of the list of hazardous types of work by the tripartite constituents, which includes such types of work as: handling and spraying of pesticide and herbicide and the exposure to chemicals, toxic dust, fumes and gases; garbage collecting; the lifting of heavy loads; unsupervised fishing and extraction of water from wells; the brewing of alcoholic beverages; working underground, at night or at heights; and building and construction work. The Committee notes the Government’s indication that the incorporation of the list of hazardous types of work into the Employment Act will be considered during the ongoing labour law review process. The Committee expresses the firm hope that the draft list of types of hazardous work prohibited to children under 18 years of age will be adopted in the very near future. It requests the Government to supply a copy of this list, once it is adopted.

Article 7(2). Effective and time-bound measures. Clause (b). Direct assistance for the removal of children from the worst forms of child labour. Child victims of commercial sexual exploitation. In its previous comments, the Committee noted that the United Nations Committee on the Elimination of Discrimination against Women expressed concern, in its concluding observations of 2010, that women and girls enter into prostitution to support themselves and their families as a result of poverty. It noted that, within the national Action Programme on the Elimination of Child Labour (APEC), a total of 1,927 children were prevented and withdrawn from child labour, including from commercial sexual exploitation. The Committee also noted the Government’s statement that children engaged in commercial sexual exploitation are identified as children in need of protection under the Children’s Act of 2009 and that, according to section 54, the Minister shall develop programmes and rehabilitative measures to reintegrate abused or exploited children.

The Committee notes the Government’s statement that children in need of protection can be placed in child welfare institutions, and receive psychosocial support. The Government indicates that, taking into account all forms of vulnerability, there are currently more than 450 children in child welfare institutions. The Government also states that a study on violence against children has recently been completed and that the results will give an indication of the prevalence of violence, in its different forms, among children. The Committee requests the Government to pursue its efforts to remove children engaged in commercial sexual exploitation, and to provide them with the necessary and appropriate direct assistance, pursuant to section 54 of the Children’s Act. It requests the Government to provide information on the number of child victims of commercial sexual exploitation who have been effectively removed, rehabilitated and socially integrated as a result of the measures implemented, including by providing the statistics compiled as a result of the study on violence against children.