Comments adopted by the CEACR: South Sudan

Repetition

The Committee notes the information provided by the Government in its first report.

Articles 1(1), 2(1) and 25 of the Convention. 1. Trafficking in persons. The Committee notes that section 282 of the Penal Code of 2008 criminalizes trafficking in persons. According to this section “whoever procures, entices or leads away, even with his or her consent, any person for sale or immoral purposes to be carried outside South Sudan, commits an offence, and upon conviction, shall be sentenced to imprisonment for a term not exceeding seven years or with a fine or with both”. The Committee observes that the elements of the definition of trafficking provided for in section 282 of the Penal Code only appear to prohibit international trafficking for sexual exploitation. The Committee requests the Government to indicate the provisions in national legislation that would prohibit trafficking for labour exploitation, including within the borders of the country. The Committee also requests the Government to provide information on the measures taken or envisaged to prevent and suppress all forms of trafficking in persons as well as any data on the characteristics and the extent of the phenomenon of trafficking in persons in South Sudan. Lastly, the Committee requests the Government to communicate information on any court decision handed on the basis of section 282 of the Penal Code, indicating the sanctions imposed on perpetrators.

2. Freedom of public service employees to leave the service. The Committee requests the Government to indicate the provisions governing the right of public service employees to leave the service at their own request, and to provide information on the procedure for their resignation. The Committee also requests the Government to communicate a copy of the relevant legislation on this matter.

3. Freedom of career military members to leave their service. The Committee notes that under section 30(c) of the Sudan People’s Liberation Army (SPLA) Act, 2009, members of the armed forces “shall cease and terminate their service upon acceptance of resignation” and that the minimum period of obligatory service in the army ranges from six to ten years. The Committee also notes that according to section 26(3) any member of the army who fails to perform a service under an employment contract, commits an offence and is liable to imprisonment for a maximum period of two years. In this regard, the Committee requests the Government to provide information on the application of section 30(c) of the SPLA Act, 2009, in practice, indicating the number of resignations refused and the grounds for refusal.

4. Punishment of idle persons and vagrancy. The Committee notes that under section 378(2) of the Penal Code whoever conducts himself/herself as an idle person commits an offence and is liable to imprisonment for a term of one month maximum or with a fine or both. According to section 378(1) an idle person is “(a) any person who being able wholly or in part to maintain himself/herself or his/her family wilfully neglects or refuses to do so”; or “(c) any person who has no settled home and has no ostensible means of subsistence and cannot give a satisfactory account of himself or herself”. The Committee further notes that under section 379(1)(a) a vagrant is “any person who after being convicted as an idle person, commits any of the offences which would render him/her liable to be convicted as such again”. Under section 379(2) “whoever conducts himself/herself as an idle person commits an offence, and upon conviction, shall be sentenced to imprisonment for a term not exceeding one month or with a fine or with both”. The Committee observes that such provisions are worded in general terms, and could lead to the imposition of sanctions on persons for the mere fact of being considered as idle or vagrants. The Committee considers that the possibility of imposing sanctions for mere refusal to work is contrary to the Convention, unless such penalties are imposed for unlawful activities or to persons who disrupt the public order or put in danger public health. The Committee requests the Government to provide information on the measures taken to amend the legislation in conformity with the Convention. In the meantime, please provide information on the application in practice of the above-mentioned provisions.

Article 2(2)(a). Compulsory military service. The Committee notes that under section 10(3)(a) of the Labour Bill, work exacted under compulsory military service is excluded from the definition of forced labour. The Committee requests the Government to provide a copy of the legislation regulating compulsory military service.

Article 2(2)(b). Normal civic obligations. The Committee notes that under section 10(3)(b) of the Labour Bill, forced labour shall not include any work or service which forms part of the normal civic obligations of citizens. The Committee requests the Government to provide information on the nature of the civic obligations that may be imposed, providing a copy of the relevant legislative texts.

Article 2(2)(c). Prison labour. The Committee notes that according to section 69(1) of the Prison Service Act of 2011, a convicted prisoner shall be deployed to work in rehabilitation programmes or productive labour, where available. Section 69(2) stipulates that regulations shall provide for matters relating to such programmes. Under section 87 remand prisoners (detainees awaiting trial) shall not work. The Committee also notes that section 80(2) provides that guaranteed prisoners (low-risk prisoners and first offenders) shall have the opportunity to work outside the prison institution. In this regard, the Committee requests the Government to provide further information on work carried out by convicted prisoners, indicating whether they may perform labour for private entities and if so, under what conditions. The Committee also requests the Government to provide copies of the regulations on prison work and on work carried out outside the prison institution, referred to in sections 69(2) and 80(2) of the Prison Service Act, 2011.

Article 2(2)(d). Situations of emergency. The Committee notes that according to section 10(3)(d) of the Labour Bill forced labour shall not include any work or service exacted in cases of emergency, or any other circumstance that may endanger the existence of the population. The Committee requests the Government to indicate whether any specific legislation concerning cases of emergency has been adopted and to provide information on the conditions under which labour might be imposed in such situations.

Article 2(2)(e). Minor communal services. The Committee notes that under section 10(3)(e) of the Labour Bill, minor community service is not considered to be forced labour, provided it is performed in the direct interest of the community and that the members or the representatives of such community are consulted. The Committee requests the Government to provide examples of such community services, indicating the conditions under which they are performed, as well as copies of any relevant legislation.

Article 25. Penalties for the exaction of forced labour. The Committee notes that section 277 of the Penal Code provides for a sanction of imprisonment of two years or a fine or both to any person who compels any person to labour against the will of that person. The penalty is raised to seven years in cases of kidnapping, or abduction in order to compel a person to labour (section 278). The Committee recalls that, according to Article 25 of the Convention, the exaction of forced labour shall be punishable as a penal offence, and the penalties imposed by laws shall be really adequate and strictly enforced. It observes in this regard that fines or short term sentences of imprisonment cannot be considered as effective penalties, given the seriousness of the offence and the dissuasive effects that the penalties should have (General Survey on the eradication of forced labour, 2007, paragraph 137). The Committee accordingly requests the Government to provide information on the application of the above-mentioned provisions in practice, supplying copies of relevant court decisions and indicating the penalties imposed.

Repetition

In its previous comment, the Committee took note of the adoption of the Workers Trade Unions Act 2013 (WTUA) and of the elaboration of the Labour Bill 2012 (LB). The Committee requested the Government to provide further details on certain aspects of the WTUA and to provide information on the status of the LB and on the participation of the social partners in its elaboration.

In its report, the Government indicates that the LB was enacted into law on 12 December 2017 and that all social partners were involved in its elaboration. The Committee further notes the Government’s indication that the Labour Act, a copy of which has been provided by the Government, contains specific provisions to protect workers against acts of anti-union discrimination.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. The Committee had previously noted that: (i) section 28(1) of the WTUA prohibits dismissal, downgrading, compulsory retirement and any other action prejudicial to the worker for reasons related to activity in a union or federation; (ii) section 27(1) prohibits transfer of any employee who stands for election to a union committee; and (iii) section 27(2) prohibits imposition of sanctions on members of a union’s or a federation’s committee for reasons related to committee membership. The Committee notes that section 6 of the Labour Act prohibits direct or indirect discrimination against a worker or job applicant on the basis of trade union membership or participation in trade union activities, and that section 73(2) explicitly prohibits anti-union dismissals. The Committee also takes note of the Government’s indication that in the few incidents of anti-union discrimination that have occurred, the Government has mediated between workers and employers to mitigate the disputes. While taking note of this information, the Committee requests the Government to provide information on the number of complaints filed with the competent authorities in this field, the outcome of the investigations and court proceedings as well as their average duration, in both the public and private sectors.

Article 2. Protection against acts of interference. The Committee had previously observed that, while section 28(2)(b) of the WTUA restricts employers’ intervention in trade union affairs, it does not proscribe intervention of trade unions in employers’ organizations. The Committee also noted the Government’s indication that employers’ and workers’ organizations enjoy the right to freely organize themselves without the Government’s interference in line with article 25(1) of the Transitional Constitution, and that this protection was going to be spelled out in the Labour Act and its regulations. The Committee observes, however, that while the Transitional Constitution (article 25(1)) and the Labour Act (article 9) provide for the right to establish and join trade unions or employers’ organizations, neither of them contain provisions affording adequate protection against acts of interference by each other or each other’s agents or members in the establishment, functioning or administration. The Committee therefore requests the Government to take the necessary measures to ensure that the legislation explicitly prohibits intervention by workers’ and employers’ organizations against each other. It also requests the Government to provide information on the number of complaints filed with the competent authorities in this field, the outcome of investigations and court proceedings and their average duration, in both the public and private sectors.

Article 3. Machinery to ensure effective protection. The Committee had previously noted that the WTUA does not provide for an appeal procedure and sanctions against acts of anti-union discrimination and interference. The Committee notes that the Labour Act provides for the establishment of a labour inspectorate, labour commissioner, labour advisory council, commission for conciliation, mediation and arbitration and a labour court (sections 16–34). The Labour Act further specifies that anti-union discrimination and anti-union dismissals constitute an offence (sections 6(6) and 73(2)) and that reinstatement and compensation can be ordered for unfair dismissal (section 85(1)). The Committee also notes that section 127 of the Labour Act provides for the issuance of regulations establishing penalties that may be imposed by the Labour Court upon finding of an offence under the Labour Act (these include, among others, imprisonment of up to five years and fines commensurate with the offence). The Committee requests the Government to indicate whether the said regulations have been issued and, if so, to provide a copy. Recalling that, under the Convention, all acts of anti-union discrimination and interference should be adequately prevented through the imposition of dissuasive sanctions and adequate compensation, the Committee requests the Government to provide detailed information as to the sanctions and compensations effectively imposed to acts of anti-union discrimination and interference.

Article 4. Promotion of collective bargaining. The Committee had previously noted that the LB contained provisions on collective bargaining. The Committee notes that the Labour Act provides for rules on the initiation of collective bargaining, obligation to negotiate in good faith, content of collective agreements, their registration and legal effect, as well as disputes in this regard (sections 88–95). It further notes that section 87 establishes a system under which a trade union that represents the majority of the workers in a bargaining unit is entitled to recognition as the exclusive bargaining agent, which is to be determined by the employer or, under certain circumstances, by the Commission for Conciliation, Mediation and Arbitration. With a view to effectively promoting the exercise of collective bargaining, the Committee emphasizes the importance of ensuring that: (i) the determination of representativeness is carried out in accordance with a procedure that offers every guarantee of impartiality, by an independent body that enjoys the confidence of the parties; and (ii) the right to collective bargaining can still be exercised by the existing workers’ organizations in the absence of a majority union. The Committee therefore requests the Government to provide further details on: (i) the criteria and procedure to determine the exclusive bargaining agent; (ii) the right of other organizations to demand a new election after a reasonable period; (iii) the possibility of creating groups of trade unions for bargaining purposes; and (iv) collective bargaining rights of minority unions where no union meets the requirements to become the exclusive bargaining agent.

Article 6. Civil servants not engaged in the administration of the State. The Committee had previously noted that section 6 of the WTUA exempts from its scope of application the following categories of workers: any disciplined force including the army, police, prison service, fire service and wildlife forces; national security forces; constitutional post holders; judges and justices; public attorney and legal advisers and senior members of the diplomatic service. The Committee notes that section 4(2) of the Labour Act also exempts from its scope of application the army; organized forces; national security service; judges; government legal counsels; diplomatic service and constitutional post holders. The Committee recalls that while members of the armed forces, the police and civil servants engaged in the administration of the State can be excluded from the application of the Convention, all other categories of workers, including prison, fire and wildlife services, as well as civilian personnel in the armed forces, should benefit from the rights granted by it. The Committee requests the Government to take the necessary measures to ensure that national legislation guarantees the rights provided in the Convention to the civil servants not engaged in the administration of the State.

Application of the Convention in practice. The Committee once again invites the Government to provide information on the measures taken to promote collective bargaining and on the number of collective agreements concluded, specifying the sectors and the number of workers covered.

Repetition

The Committee notes that, since the receipt of the Government’s report in 2019, the country has witnessed political turmoil leading to intercommunal violence. It also notes the establishment on 22 February 2020 of the Revitalized Transitional Government of National Unity. While acknowledging the difficult situation prevailing in the country, the Committee encourages the Government to continue to step up its efforts to ensure the effective application of the Convention, and requests the Government to provide information on the following :

Article 1(a) of the Convention. Definition of remuneration. Legislation. The Committee takes notes of the adoption of the Labour Act No.64 on 24 October 2017. It notes that under Chapter I, wages/salaries are defined as: “remuneration or earnings, however designated or calculated, capable of being expressed in terms of money and fixed by mutual agreement or by national laws or regulations, which are payable under an order or a written contract of service for work done or to be done, or for services rendered or to be rendered but excluding any contribution made or to be made by the employer in respect of his or her employee’s insurance, medical care, welfare, education, training, invalidity, retirement pension, post-service gratuity or severance allowances”. The Committee notes that the above definition only covers the ordinary, basic or minimum wage or salary, and does not include any “additional emoluments payable directly or indirectly, whether in cash or kind, by the employer”, in accordance with Article 1(a) of the Convention. The Committee recalls that the Convention sets out a very broad definition of “remuneration” in order to ensure that equality is not limited to the basic or ordinary wage, nor in any other way restricted according to semantic distinctions. Thus, remuneration under the Convention includes inter alia, wage differentials or increments based on seniority or marital status, cost-of-living allowances, housing or residential allowances and family allowances paid by the employer, and benefits in kind such as the allotment and laundering of working clothes. Further, the Committee wishes to point out that the addition of the words "directly or indirectly" in the definition of remuneration in the Convention was designed to include certain emoluments which are not payable directly by the employer to the worker concerned. Thus the Convention covers all components of remuneration - direct and indirect -which arise out of the employment relationship. Stressing the importance to be attached to the phrase "arising out of the worker's employment" in delimiting the scope of the Convention, the Committee asks the Government to take the necessary steps to ensure that the definition of remuneration in section 8 of the 2017 Labour Act covers all elements of remuneration, that is including any additional allowances, paid directly or indirectly, in cash or in kind, by the employer to worker.

Articles 1(b) and 2. Equal remuneration for work of equal value. Legislation. The Committee notes with interest that section 8 of the Labour Act of 2017 provides for the principle of equal remuneration for work of equal value and defines it as work requiring of workers a comparable amount of knowledge attested to by a qualification, or work experience, capacities derived from acquired experience, responsibilities and physical or intellectual effort (section 8(3)). It recalls that article 16(2) of the Transitional Constitution of South Sudan of 2011 (TCSS) gives women the right to “equal pay for equal work and other related benefits with men”, which is narrower than the principle set out in the Convention. In the absence of any information on this point, the Committee once again asks the Government to provide information on any progress achieved to ensure that article 16(2) fully takes into account the principle of equal remuneration for work of equal value set out in the Convention.

Public service. In its previous comments, the Committee asked the Government: (1) to seize the opportunity of any legislative review to amend section 19(b) of the Civil Service Act, which provides in general terms for equal rights for women and men in remuneration, without specifically referring to the principle of equal pay between men and women for work of equal value; and (2) to indicate the status of the Policy Framework for the Public Service of South Sudan 2007 (pre-dating the independence of South Sudan) which provision 4.2 (1) refers to the principle of “equal pay for equal work”, narrower than the principle of the Convention. In its report, the Government indicates that the Civil Service Act has not yet been revised. Moreover, the draft Regulations detailing further rights and obligations of civil servants, as indicated in section 20(2) of the Civil Service Act are still under review by the Ministry of Justice. It notes an absence of information regarding the Policy Framework for the Public Service of South Sudan 2007. The Committee asks the Government to provide information on any developments regarding the revision of the Civil Service Act, in particular as regard section 19 (b), and the adoption of the draft Regulations. In the absence of information regarding the status of the 2007 Policy Framework for the Public Service of South Sudan, the Committee reiterates its request to the Government to indicate whether this text is still in force.

Article 2(2). Rates of remuneration. Private sector. In its previous comments, the Committee asked the Government to provide information on the activities of the Labour Advisory Council (LAC) in charge of fixing, reviewing and adjusting periodically minimum wages, particularly with regard to the application of the principle of the Convention. The Committee notes that, pursuant to section 21(4) of the Labour Act, the LAC shall “advise the Office of the Labour Commissioner on periodically fixing, reviewing and adjusting minimum wages in accordance with section 50”. It also notes that pursuant to section 50(3) “Notwithstanding the principle of equal pay for work of equal value, the Council may recommend to the competent authority fixing different minimum wages/salaries for different occupations or for special categories of employees”. The Committee also notes the Government’s indication that all the bodies stipulated in the Labour Act, including the LAC, are yet to be established. Once established, these bodies will be guided by Regulations to ensure that there is no discrimination in setting wages. The Committee further notes that it is expected that the ILO will provide technical assistance to the Government for the period 2020-2021 through the funding of a RBSA (Regular Budget Supplementary Account (RBSA) proposal that intends to develop gender-responsive labour regulations through a new established Labor Advisory Council designed to improve industrial harmony and strengthen the protection of workers’ rights. The development of gender-responsive rules and regulation governing the functioning of the LAC is among the expected outputs. The Committee wishes to reiterate that the fixing of minimum wages can make an important contribution to the application of the principle of the Convention, as women predominate in low-wage employment. The Committee asks the Government to provide information on the progress made in setting up the Labour Advisory Council and on the implementation of the RBSA project. In the meantime, it requests the Government to indicate how it is ensured that the principle of equal remuneration between men and women for work of equal value is taken on board when setting different minimum wages for different occupations and for special categories of workers, particularly in sectors where women predominate.

Public sector. The Committee recalls that section 45(3) read together with section 21(1)(2) of Chapter VII of the Civil Service Act of 2011 provide that “the schedule of salary rates” is based on “the Civil Service Grade Classification Structure” composed of six categories of staff: (a) leadership; (b) super grade; (c) administrative and professional; (d) technical and para-professional; (e) skilled worker; and (f) unskilled worker. Examples of the title of posts included in each grade classification are set out in Schedule 1 of the Act. Section 45(1) provides for the issuance of a regulation indicating a “schedule of salary rates for the Grade Classification structure and pay grade”. In its previous comments, the Committee asked the Government to provide information: (1) on how the principle of equal remuneration for men and women for work of equal value is being applied in practice in the public service; (2) the criteria used in determining the posts and their corresponding salary scales in the Civil Service Grade Classification Structure and to ensure that these were established without discrimination based on sex ; and (3) on the distribution of men and women in each of the grades and salary scales in the civil service. The Government indicates that there is no discrimination based on sex in practice since the civil service salary structure is designed according to the grades, and the incumbent whether male or female receives the salary of a designated grade and position. The Committee, however, recalls that the fact that a system of remuneration is based on a classification of jobs that applies to all public sector employees, without distinction on the ground of gender, does not prevent indirect pay discrimination. Discrimination can be due to the manner in which the classification of jobs itself was established, with the tasks performed mainly by women often being undervalued in comparison to the tasks traditionally performed by men, or it can result from inequalities in the payment of certain wage supplements for work of equal value (allowances, benefits, etc.).The Committee notes the absence of information provided by the Government on the distribution of men and women in the different positions of the public sector, and their corresponding remuneration levels. In this regard, it draws the Government’s attention to the importance of conducting an evaluation of the overall gender pay gap in the public sector that may be due to occupational gender segregation of women into lower-paid positions. Recalling the Government’s obligation to ensure the full application of the principle of equal remuneration for men and women for work of equal value to its own employees, the Committee requests the Government: (i) to indicate how it is ensured that the criteria used to determine the classification of jobs and remuneration scales in the public sector are free from gender bias and that positions held predominantly by women are not undervalued in comparison with those undertaken by men; (ii) to take the necessary steps to collect and analyse statistical information on the distribution of men and women in the various occupations and positions in the public sector and their corresponding remuneration levels, to determine whether wage gaps exist, and to take the necessary steps to eliminate any wage gaps; and (iii) to provide information on any measures taken to improve the access of women to higher ranking and better paid positions in the public sector, and the results achieved.

Article 3. Objective job evaluation. Public sector. In its last comments, the Committee noted that: (1) under section 25(2)(a) read with section 31(1)(c) of the Civil Service Act 2011, the selection criteria in the job description relate to factors, such as “knowledge, skills, experience, qualifications and personal attributes necessary or desirable for the competent performance of [relevant] duties and responsibilities”; (2) the Government indicated that section 59 of the Civil Service Act refers to the “merit principle” for the purpose of “progression of civil servants, officials and employees within their grade or from one level to another”; and concluded (3) there may be potential for some confusion to exist between performance appraisal (which aims at evaluating the performance of an individual worker in carrying out his or her job) and objective job evaluation (which is to measure the relative value of jobs with varying content on the basis of the work to be performed). In this regard, the Committee wishes to stress that objective job evaluation is concerned with evaluating the job and not the individual worker (see General Survey on fundamental conventions, 2012, paragraph 697). Noting the absence of information on this point, the Committee requests the Government to provide information on: (i) whether in developing job descriptions, it undertakes a formal and objective analysis of the job’s content, in particular, whether numerical values are given to “the knowledge, skills, experience, qualifications and personal attributes necessary or desirable for the competent performance of duties”, with a view to determining entitlement to equal remuneration for men and women for work of equal value; and (ii) the methods adopted to determine rates of remuneration for skilled and unskilled worker categories which are not covered by section 25(5) of the Civil Service Act 2011. Please provide information on any measures taken to undertake objective job evaluation free from gender bias in the public service.

Private sector. The Committee recalls that section 8(3) of the Labour Act 2017 defines work of equal value as work requiring of workers a comparable amount of knowledge attested to by a qualification, or work experience, capacities derived from acquired experience, responsibilities and physical or intellectual effort. It wishes to highlight that, consequently, the concept of equal value requires some method of measuring and comparing the relative value of different jobs. While the Convention does not prescribe any specific method for such an examination, Article 3 presupposes the use of appropriate techniques for objective job evaluation, comparing factors such as skill, effort, responsibilities and working conditions. (see General Survey, 2012, paragraph 695). Noting once again the absence of information on this point, the Committee requests the Government to provide information on any measures taken or envisaged to encourage and promote the use of objective job evaluation methods in the private sector.

Article 4. Cooperation with employers’ and workers’ organizations. Recalling that workers’ and employers’ organizations play an important role with respect to giving effect to the provisions of the Convention, the Committee asks the Government to provide information on any awareness-raising activities carried out to promote the principle of the Convention, and to indicate whether any cooperation or joint activities have been undertaken together with the employers’ and workers’ organizations to promote the principle of the Convention. Further, considering that one of the most effective and practical methods of ensuring that the objectives of the Convention are achieved is the elimination of discrimination, in particular wage discrimination, in collective agreements, please provide samples of such agreements.

Statistics. The Committee notes that in response to its request for statistical data on the earnings of men and women in the public and the private sectors, by occupational sector and job category, and disaggregated by sex, the Government indicates that the Ministry will need technical support to set up a compiled statistical system in order to enable constructive comparisons of the earing of men and women. The Committee encourages the Government to avail itself of the technical assistance of the Office to be in a position to submit statistical information on salary levels and occupations, disaggregated by sex, in the public and the private sectors and to keep it informed of any development in this regard.

Application in practice. The Committee asks the Government: (i) to provide updated information on monitoring activities, especially those carried out by the competent authorities relating to the application of the Convention, including details of their findings, and on any other initiatives taken by them with a view to promoting the application of the Convention; and (ii) to supply copies of any relevant studies or surveys that have been undertaken to assess the application of the principle of equal remuneration for men and women for work of equal value, including any obstacles encountered.

Repetition

Article 1(a) of the Convention. Sanctions involving compulsory labour as a punishment for expressing political views or views ideologically opposed to the established political, social or economic system. 1. The Committee recalls that Article 1(a) of the Convention prohibits the use of compulsory labour, including compulsory prison labour, as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. The Committee notes that sentences of imprisonment involve the obligation to work according to section 69(1) of the Prisons Service Act of 2011. It also notes that some provisions of the Penal Code provide for sentences of imprisonment in circumstances that might fall within the scope of Article 1(a) of the Convention, namely:

• – section 75 (publishing or communicating false statements prejudicial to South Sudan);
• – section 76 (undermining the authority of or insulting the President);
• – section 83 (disorderly or riotous conduct in public places);
• – sections 289–292 (defamation).

The Committee requests the Government to provide information on the application of sections 75, 76, 83 and 289–292 of the Penal Code in practice, including copies of any court decision defining or illustrating their scope, so as to enable the Committee to ascertain whether they are applied in a manner compatible with Article 1(a) of the Convention.

2. The Committee also requests the Government to supply copies of the legislation in force in the following fields: laws governing the press and the media; laws governing political parties and associations; and laws governing assemblies, meetings and demonstrations.

Article 1(c). Punishment for breaches of labour discipline. 1. Disciplinary measures applicable to public servants. The Committee notes that section 103 of the Penal Code provides that: “Whoever, being a public servant wrongfully abandons his or her duty in pre-arranged agreement with two or more other public servants, if the intention or effect of such abandonment is to interfere with the performance of a public service to an extent which will cause injury or damage or grave inconvenience to the community, commits an offence, and upon conviction, shall be sentenced to imprisonment for a term not exceeding one year or with a fine or with both.”

The Committee recalls that under Article 1(c) of the Convention, no penal sanctions involving compulsory labour, including compulsory prison labour should be imposed for breaches of labour discipline. The Committee has nevertheless considered that it is not incompatible with the Convention to impose penalties on persons responsible for breaches of labour discipline that impair or are liable to endanger the operation of services that are essential to safety or in circumstances where life or health is in danger. In this regard, the Committee observes that the wording of section 103 of the Penal Code, by referring to “grave inconvenience”, might lead to the imposition of penalties of imprisonment involving compulsory labour in a range of circumstances that are not limited to situations where the life, personal safety or health of the population is endangered. The Committee therefore requests the Government to provide information on the application of section 103 of the Penal Code in practice, including copies of any relevant court decision, indicating the grounds for prosecution and the penalties imposed, in order to assess its scope of application.

2. Disciplinary measures applicable to seafarers. The Committee requests the Government to supply copies of legislative texts governing seafarers’ conditions of employment, so that it may examine the nature of the disciplinary measures that could be imposed on them.

Repetition

The committee notes that, since the receipt of the Government’s report in 2019, the country has witnessed political turmoil leading to intercommunal violence. It also notes the establishment on 22 February 2020 of the Transitional Government of National Unity. While acknowledging the difficult situation prevailing in the country, the Committee encourages the Government to increase its efforts to ensure the effective application of the Convention, and requests the Government to provide information on the following:

Article 1(1)(a) of the Convention. Protection against discrimination. Legislation. The Committee notes the adoption of the Labour Act 2017 (No.64) The Government indicates in its report that non-discrimination in employment and occupation is addressed in section 6 of the Labour Act 2017: section 6(1) prohibits direct and indirect discrimination against a worker or job applicant in any work place or practice; and section 6(3) defines discrimination as any distinction, exclusion or preference with the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation based on a wide range of grounds, including: race; tribe or place of origin; national extraction; colour; sex; pregnancy or childbirth; marital status; family responsibilities; age; religion; political opinion; disability or persons with special needs; health and HIV/AIDS; or membership in a trade union or participation in trade union activities. The Committee notes however, that “social origin” has been omitted from the prohibited grounds of discrimination. It recalls that discrimination and lack of equal opportunities based on social origin refers to situations in which an individual’s membership of a class, socio-occupational category or caste determines his or her occupational future, either because he or she is denied access to certain jobs or activities, or is assigned only certain jobs. Even in societies with considerable social mobility, or in less highly stratified societies, a number of obstacles continue to prevent effective equality of opportunity for various social categories. (See 2012 General Survey on the fundamental Conventions, paragraph 802). In that regard, it wishes to highlight the continuing relevance of addressing discrimination based on class and socio-occupational categories. The Committee further notes that section 7 prohibits and defines sexual harassment, including both quid pro quo and hostile environment harassment. As regard the constitutional provisions in force, the Committee notes that section 14 of the Transitional Constitution of South Sudan of 2011 (TCSS), as amended in 2013, provides for equal protection of the law without discrimination as to race, ethnic origin, colour, sex, language, religious creed, political opinion, birth, locality or social status, but omits the ground of “national extraction”. Recalling that where legal provisions are adopted to give effect to the principle of the Convention, they should include, as a minimum, all the grounds of discrimination specified in Article 1(1)(a) of the Convention, the Committee asks the Government to consider introducing the ground of “social origin” in the Labour Act to be in full conformity with the Convention. It also asks the Government to consider including the ground of “national extraction” in the constitutional provisions on non-discrimination, in any upcoming review of the TCSS. Please provide information on any progress made in this regard.

Civil service. The Committees notes that the Labour Act provides in its section 4(4) that “to the extent that the Civil Service Act 2011, or other law of the Government, establishes conditions of employment more favourable to employees covered by that Act than are established under this [Labour Act], the relevant provisions of such Act shall apply to an employee so covered”. The Committee notes once again that section 19(a) of the Civil Service Act 2011, prohibits discrimination against all public officials, officials and employees in respect of remuneration, terms, conditions, benefits and privileges of service on grounds of “gender, marital status, ethnic origin, political affiliation, ideology, economic condition, religious or philosophical belief, cultural origins, or social opinions”. It notes however, that section 19(a) does not cover the grounds of race, colour, political opinion, national extraction and social origin, and does not appear to cover all aspects of employment, including recruitment. The Committee also notes that section 19(b) of the Civil Service Act, provides equal rights for women and men in recruitment, promotion and remuneration. With respect to political opinion, it needs to be determined whether political affiliation and ideology read together could cover “political opinion” within the meaning of the Convention. The Committee notes an absence of information from the Government on this point. In order to avoid any conflict between section 19(b) of the Civil Service Act, and the Labour Act, the Committee asks the Government once again to consider amending section 19(b) to include at least all of the seven grounds enumerated in the Convention, namely, race, colour, sex, religion, political opinion, national extraction and social origin, and ensure that all aspects of employment, including recruitment, are covered.

Articles 1(3) and 2. Access to vocational training. In the absence of information on this point, the Committee asks the Government to provide details on the measures taken or envisaged to facilitate vocational training and promote employment and occupational opportunities of persons regardless their race, colour, sex, religion, political opinion, national extraction or social origin.

Article 2. National equality policy. Previously, the Committee requested the Government to provide information on the implementation of the Policy Framework and Strategic Plan of 2012–16 (Strategic Plan), particularly the strategic area on “elimination of discrimination at the workplace” (section 5 of the Policy). The Government indicates that due to the current challenges facing the country, the Strategic Plan was not fully implemented. It was revised and extended for the period 2019-2023 and it is expected that most of the activities planned will be implemented. The Committee wishes to recall that, under Article 2 of the Convention, the primary obligation of ratifying States is to declare and pursue a national policy designed to promote equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof. In moving towards this objective, although offering considerable flexibility and a wide margin to adapt to national conditions and practice, the Convention requires that appropriate measures should be adopted in line with the underlying principles enumerated in Article 3 of the Convention and Paragraph 2 of the Recommendation to be effective. The Committee asks the Government to indicate the concrete and specific measures taken or envisaged to address discrimination, in law and in practice, for all categories of workers, in all aspects of employment and occupation and in respect of all the different grounds of discrimination expressly referred to by the Convention.

Equality of opportunity and treatment between men and women. The Committee notes that pursuant to article 16(4)(a) and (b) of the TCSS all levels of government are required to: (1) promote women’s participation in public life and their representation in the legislative and executive organs by at least 25 per cent to redress imbalances created by history, customs, and traditions; and (2) enact laws to combat harmful customs and traditions which undermine the dignity and status of women. Furthermore, the Committee notes that the TCSS contains several other provisions which are aimed at improving the representation of women members in the Council of Ministers (article 109); in the Judiciary (article 123(6)) in the independent institutions and commissions established under the TCSS or any other such bodies established by the National Government (article 142(3)), and in each legislative and executive organ of each state (article 162(7)). The Committee notes also that, in reviewing the Government’s “Initial report” submitted to the United Nations Committee on the Elimination of Discrimination against Women (CEDAW), the CEDAW pointed out that “the recognition of customary law and wide application of it in adjudication makes it difficult to follow principle of equality, especially for women and girls within the family setting and other real-life experiences (CEDAW/C/SSD/1- 19 February 2020, paragraph 7). Moreover, in spite of the demonstrated political will and constitutional guarantees, attitudes to gender equality, the rights of women are still predominantly steeped in a patriarchal social system, which entrenches gender-based discrimination and exposes women and vulnerable groups to marginalization, violation of rights and violence (paragraph 188). Noting the efforts of the Government to develop and implement a policy promoting equality of opportunity and treatment between men and women, the Committee asks the Government to provide information on: (i) the implementing measures adopted and the results achieved, as regard occupational gender segregation in the labour market, and particularly access of women to a wide range of occupation; (ii) the measures taken or envisaged to tackle the fact that in practice women are mostly engaged in vulnerable employment or unpaid work (such as tackling entrenched gender norms and stereotypes concerning the distribution for care and housework between men and women and equip them with skills that match market demands for higher income and secure jobs); and (iii) the challenges encountered in the implementation of the laws and policies. Please provide updated data on women’s participation in the labour market and the informal economy.

General observation of 2018. The Committee would like to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction which was adopted in 2018. In the general observation, the Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. Furthermore, the Committee considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population.

The Committee draws the Government’s attention to its general observation of 2018 and requests the Government to provide information in response to the questions raised in that observation.

Article 3(a). Cooperation with the social partners and other institutions. In reply to the Committee’s comments on the provision of training to the social partners and the law enforcement bodies, the Government indicates that no training could be provided due to lack of donors’ funding. The Committee notes that the Government did not communicate the measures taken, in collaboration with the workers’ and employers’ organizations and the National Commission for Human Rights (NCHR), to promote the principles of the Convention. In this regard, it wishes to stress that, the fact that the State bears the chief responsibility of declaring and pursuing a national policy should not cause one to overlook the essential role of employers’ and workers’ organizations in promoting the principle of equality at the workplace itself, and the corresponding responsibilities. The Committee thus once again requests the Government to provide information on any activities undertaken in collaboration with the workers’ and employers’ organizations and the National Commission for Human Rights, to promote equality of opportunity and treatment in employment and occupation. Please, provide information on any training on equality of opportunity and treatment in employment and occupation being offered to the Judiciary, labour inspectors and other public officials who have to deal with these matters, as well as workers’ and employers’ organizations.

Articles 3(d) and 5(2) Public service. The Committee recalls that: (1) section 28(2) of the Civil Service Act 2011 provides that recruitment or promotion shall be exclusively based on the applicant’s suitability for the post and shall not be decided on grounds of race, creed, sex or religion etc. “unless specified otherwise by the Constitution, relevant government policy on gender or any other law”; and (2) that section 38 of the Civil Service Act grants “special consideration” for former Sudan’s People Liberation Movement (SPLM)/Sudan’s People Liberation Army (SPLA) personnel wishing to join the Civil Service but lacking formal qualifications and job experience. Section 38, in particular, requires the Ministry of Labour to develop and implement as a matter of urgency a policy for the “particular circumstances” of this group so that they are provided with equal opportunities for employment. The Committee notes that the Government does not provide information on the application in practice of both provisions and stresses the importance of both hiring the best person for the job and ensuring workforce diversity. It further highlights that Article 5(2) of the Convention allows for special measures of protection or assistance to meet the particular requirements of certain persons, after consultation with representative employers’ and workers’ organizations. It therefore asks the Government to provide information on any special measures adopted or envisaged in favour of the participation of certain categories of workers in the public sector, in particular women or ethnic minorities. Please also provide sex-disaggregated or qualitative data on the distribution of men and women and if available ethnic minorities distribution in the public service. The Committee asks the Government to provide information on the application in practice of section 38 of the Civil Service Act and to indicate to what extent employers’ and workers’ organizations have been consulted so as to determine whether former SPLM/SPLA are a category requiring special measures, in accordance with Article 5(2) of the Convention.

Special measures. Private sector. The Committee recalls that section 5(b) of the Labour Act 2017, allows for special measures to be adopted to assist persons who are generally recognized as requiring special assistance. Furthermore, the Committee noted that the TCSS contains several other provisions which are aimed at improving the representation of women members in the Council of Ministers (article 109); in the Judiciary (article 123(6)); in the independent institutions and commissions established under the TCSS or any other such bodies established by the National Government (article 142(3)) and in each legislative and executive organ of each state (article 162(7)); and which set a target of 25 per cent with respect to these. In the absence of information on this point, the Committee asks the Government to provide information on the application in practice of this provision, including any results achieved in improving the representation of women and the targets set in the TCSS.

Article 3(e). Vocational training and guidance. In reply to the Committee’s comments, the Government indicates that, since the 2013 crisis, funds earmarked for training in the Government institutions are limited and therefore no training activities could be undertaken. Underlining the importance of education to achieve equality in employment and occupation, the Committee hopes that the Government will take the necessary measures to provide education and vocational opportunities to girls and women to enable them to gain access to a wider range of jobs, particularly in sectors traditionally male-dominated, and to more highly paid jobs. Please, provide up-to-date information on the distribution of men and women in the different educational and vocational training institutions, with an indication of the types of courses they are taking.

Article 4. Measures affecting individuals suspected of activities prejudicial to the security of the State. The Committee recalls that the protection of persons suspected or engaged in activities prejudicial to the security of the State is provided for in section 3 of the Human Rights Commission Act 2009. However, this provision only sets out the general purpose of the Human Rights Commission. Noting the absence of information on this point, the Committee requests once again the Government to provide specific information on the rights of workers to appeal where suspected of, or engaged in, activities prejudicial to the security of the State, in accordance with the Convention.

Statistics. Referring to its 2020 direct request on the application of the Equal Remuneration Convention, 1951 (No. 100), the Committee notes the Government’s indication that the Ministry of Labour will need technical support to set up a compiled statistical system. The Committee encourages the Government to avail itself of the technical assistance of the Office to be in a position to provide statistics disaggregated by sex and ethnicity on participation in employment and training in the public and private sectors.

Enforcement. Noting the absence of information on this point, the Committee asks the Government to provide information on the number of inspections as regards discrimination in employment and occupation, the number of complaints, and the number of cases identified and the follow-up to these cases. Please also provide information on any relevant court decisions, indicating the grounds of discrimination invoked and the outcome of such proceedings.

Repetition

The Committee notes the Government’s first report.

Article 1 of the Convention. National policy designed to ensure the effective abolition of child labour. The Committee notes that the Government’s report does not contain any information with regard to any policies implemented or envisaged to address child labour in the country. In this regard, the Committee notes that according to the 2012 report on the labour market in South Sudan, published by Understanding Children’s Work (UCW), a joint ILO, World Bank and UNICEF initiative, three out of five children are already in the labour force by the age of 10 years. According to this report, nearly three-fourths of working children are in unremunerated family employment and 60 per cent of children are in the agricultural sector. Moreover, according to the ILO–IPEC report of 2013 entitled: Child labour and education in pastoralist communities in South Sudan, children between the ages of 5–17 are highly utilized among the pastoralist communities in the daily workings of the cattle camp. The Committee requests the Government to develop and adopt national policy measures to ensure the effective abolition of child labour, particularly in agriculture and the livestock sector. It requests the Government to provide information on the measures taken or envisaged in this regard.

Article 2(1). 1. Scope of application. The Committee notes that according to section 25(3) of the Child Act of 2008, the minimum age for the admission of a child to paid employment shall be 14 years. This provision does not cover the employment of children under 14 years in unpaid employment. The Committee notes, however, that section 12(2) of the Labour Bill of 2012 (which is in the final process of enactment), provides that the provisions related to the minimum age applies to all work performed by children, whether or not the child is an employee. An “employee” according to section 4(4) of the Labour Bill refers to any person who works for or renders services to any other person, regardless of the form of the contract stipulated between such parties. The Committee expresses the hope that the Labour Bill which contains provisions regarding the application of the minimum age provisions to all work performed by children, will be adopted in the near future. It requests the Government to provide information on any progress made in this regard as well as to provide a copy once it has been adopted.

2. Minimum age for admission to employment or work. In ratifying the Convention, South Sudan specified a minimum age of 14 years for admission to employment or work within its territory. The Committee notes that section 25(3) of the Child Act fixes the minimum age for admission of a child to paid employment at 14 years. Moreover, according to section 12(2) of the Labour Bill, no person shall engage or permit the engagement of a child under 14 years to perform work.

Article 2(3). Age of completion of compulsory education. The Committee notes that section 24(iii) of the Education Act of 2008 provides for free and compulsory primary education to all citizens of South Sudan. Section 24(viii) further states that a parent of a child of compulsory school age who neglects or refuses to cause the child to attend school will be held accountable. According to section 8 of the Education Act, primary education shall constitute the basic cycle of academic education of eight years duration from the ages of 6 through 14 years.

The Committee notes, however, that according to the UNICEF estimates, more than 1 million primary school aged children, mostly from rural areas, are not in school, while the few schools that do exist are not conducive to learning. About 70 per cent of children aged 6–17 years have never entered a classroom. The completion rate in primary schools is less than 10 per cent, one of the lowest in the world. Only 13 per cent of primary schools offer the full primary cycle, from grade 1 to 8. Moreover, the South Sudan Statistics of 2014, compiled by the United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA) indicate that the net enrolment rate in primary education is 44.4 per cent (50.8 per cent male and 37 per cent female) while this rate is only 1.6 per cent in secondary education. The Committee notes with concern the low enrolment and completion rate at the primary and secondary levels. Considering that compulsory education is one of the most effective ways of combating child labour, the Committee urges the Government to take the necessary measures to effectively implement compulsory education as stipulated under section 24 of the Education Act. It also requests the Government to take the necessary measures to increase the school enrolment rates and decrease drop-out rates at the primary level with a view to preventing children under 14 years of age from being engaged in work. It further requests the Government to provide information on the measures taken in this regard and on the results achieved.

Article 3(1) and (2). Hazardous work. The Committee notes that according to section 25(1) of the Child Act every child has the right to be protected from exposure to economic exploitation and child labour. Pursuant to section 5 of the Child Act, “child” means a person under the age of 18 years and “child labour” means work undertaken by a child that in some way harms or exploits him/her, whether physically, mentally, morally, or that which prevent him/her from education. It also notes that section 12(6) of the Labour Bill prohibits any person from engaging or permitting a child under the age of 18 years to perform hazardous work.

With regard to the determination of hazardous work, the Committee notes that section 25(2) of the Child Act sets out a list of types of work which are prohibited to children under 18 years of age. These include: (a) work and activities related to mining and quarrying; (b) portage of heavy loads and storage; (c) heavy agricultural labour; (d) construction work; (e) work in industrial undertakings; (f) work in places where heavy machines are used; (g) work in places such as bars, hotels and places of entertainment where a person may be exposed to immoral behaviour; (h) work in electricity, gas, sanitary and water works; (i) service with the police, prison or military forces; (j) night work which constitutes work between the hours of six o’ clock in the evening to six o’ clock in the morning; (k) driving or touting in vehicles; (l) herding which jeopardizes the interest of the child; (m) any type of sexual work; and (n) tobacco production and trafficking. The Committee also notes the Government’s information that the Ministry of Labour through the National Steering Committee has drafted a list of hazardous types of work prohibited to children under the age of 18 years, in consultation with the social partners and other stakeholders and with the technical assistance from the ILO–IPEC programme in South Sudan. The Committee expresses the hope that the draft list of types of hazardous work prohibited to children under the age of 18 years will be finalized and adopted in the near future. It requests the Government to provide information on any progress made in this regard and to provide a copy, once it has been adopted.

Article 3(3). Admission to hazardous work from the age of 16 years. The Committee notes that pursuant to section 12(7) of the Labour Bill, the Minister of Labour may, after consultation with the trade unions and employers’ organizations and on advice from the Labour Advisory Council, issue regulations authorizing the engagement of children of 16 years of age to perform specified categories of hazardous work provided that: (i) special measures are taken to ensure the protection of the child’s health, safety and morals; (ii) the child receives adequate specific instructions or vocational training for the work performed; and (iii) that the number of hours and conditions of such hazardous work shall be as prescribed by regulations. The Committee requests the Government to indicate whether regulations have been adopted pursuant to section 12(7) of the Labour Bill authorizing children of at least 16 years of age to perform hazardous work on condition that their health, safety and morals are fully protected and that they receive adequate specific instruction or vocational training in the relevant branch of activity.

Article 6. Vocational training and apprenticeship. The Committee notes that according to section 12(2) and (3) of the Labour Bill the prohibition on the employment of children under 14 years of age shall not be applicable to work done by children in schools or in other training institutions for educational or vocational purposes, if such work is carried on in accordance with conditions prescribed by the Minister, after consultation with the Council, and is an integral part of: (a) a course of education or training for which a school or training institution is primarily responsible; (b) a programme of training approved by the Minister; or (c) a programme of orientation designed to facilitate the choice of an occupation or of a line of training. The Committee requests the Government to indicate whether apprenticeship programmes are permitted for young persons in undertakings, and if so to indicate the minimum age at which such programmes may be authorized.

Article 7(1) and (3). Minimum age for admission to light work and determination of light work. The Committee notes that according to section 25(4) of the Child Act, the minimum age for the engagement of a child in light work shall be 12 years which constitutes work that is not likely to be harmful to the health or development of the child and does not affect the child’s attendance at school or the capacity of the child to benefit from school. Section 25(7) further provides that the Government shall undertake to issue a regulation prescribing the hours and conditions of employment of a child.

Moreover, section 12(4) of the Labour Bill states that a child who has attained the age of 12 years may be engaged to perform light work, provided that such work is not harmful to the child’s health or safety or development, and does not interfere with the child’s attendance at school or the child’s capacity to benefit from the instruction received. Section 12(5) further states that the Minister, following consultation with registered trade unions and employers’ organizations and on advice from the Council, shall determine the light work activities in which employment or work may be permitted to children of 12 years and shall prescribe the number of hours and conditions of such work. The Committee requests the Government to take the necessary measures to ensure the adoption of regulations determining light work activities permitted to children of 12 years and prescribing the number of hours and conditions of such work, pursuant to section 12(5) of the Labour Bill. It also requests the Government to provide information on any progress made in this regard.

Article 8. Artistic performances. The Committee notes that the provisions under section 12(8) of the Labour Bill empowers the Minister to establish a system, after consultation with registered trade unions and employers’ organizations and on advice of the Council, by which a child under the age of 14 years may obtain a permit for such purposes as participation in artistic performances. Section 12(9) further provides that the permits provided shall be granted on an individual basis and shall prescribe the conditions and limit the number of hours under which such employment shall be permitted. The Committee requests the Government to indicate whether in practice children under 14 years of age participate in artistic performances. If so, it requests the Government to establish a system of providing individual permits for participation of children in artistic performances, pursuant to section 12(8) and (9) of the Labour Bill. It requests the Government to provide information on any progress made in this regard.

Article 9(1). Penalties. The Committee notes the Government’s statement that the Penal Code needs to be reviewed in order to include penalties for the offences related to the employment of children and young persons. It also notes that the Labour Bill, under section 132 provides that the Minister shall issue regulations establishing the penalties that may be imposed by the Labour Court for any offence under this Act. The Committee requests the Government to take the necessary measures, without delay, to ensure the adoption of regulations pursuant to section 132 of the Labour Bill which will establish penalties for the offences related to the employment of children and young persons. It also requests the Government to provide information on the application of the penalties in practice in cases of violations of the provisions regarding the employment of children and young persons, including the number and kinds of penalties imposed.

Article 9(3). Keeping of registers. The Committee notes that, according to section 25(6) of the Child Act, no employer shall engage a child in employment without satisfactory proof of the child’s age. Section 25(8) further states that the Government shall undertake to ensure that employers employing a child (defined under section 5 as persons under the age of 18 years) shall maintain registers containing the particulars relating to the employment of such a child, including their name and age.

Labour inspectorate. The Committee notes that section 29 of the Labour Bill provides for the establishment of offices of the labour inspectorate in each State of South Sudan. According to section 30 of the Labour Bill, labour inspectors shall supervise compliance of this Act; investigate complaints received by the labour inspectorate; inform and advise employers and workers on effective means to comply with this Act; instigate legal proceedings to enforce this Act; and perform such other functions as may be prescribed under this Act or by the regulations. The Committee requests the Government to provide information on the functioning of the labour inspectorate, including the number of inspections carried out as well as the number of violations detected with regard to the employment of children and young persons and penalties imposed.

Application of the Convention in practice. The Committee notes from the Government’s report that South Sudan was part of the ILO–IPEC Tackling Child Labour through Education (TACKLE) project which came to an end in 2013. According to the Government’s report, within the framework of this project, South Sudan was able to: (i) establish the National Steering Committee on the Elimination of Child Labour; (ii) draw up a list of types of hazardous work prohibited to children; (iii) create a new Child Labour Unit; and (iv) organize awareness-raising activities both at national and state levels. Noting the absence of any statistical information on the employment of children and young persons, the Committee requests the Government to take the necessary measures to ensure that sufficient data on the situation of working children and young persons in South Sudan is made available. It also requests the Government to provide a general appreciation of the manner in which the Convention is applied in practice, including statistical data on the employment of children and young persons as soon as this information becomes available, extracts from inspection services reports, information on the number and nature of contraventions reported, and penalties imposed.

The Committee expresses the firm hope that the Labour Bill of 2012 which contains several provisions that are in line with the provisions of this Convention, will be finalized and adopted in the near future. It also encourages the Government to take into consideration, the Committee’s comments on discrepancies between the Labour Bill and the Convention.

Repetition

The Committee notes the Government’s first report.

Article 3 of the Convention. Worst forms of child labour. Clause (a). All forms of slavery or practices similar to slavery. 1. Sale and trafficking of children. The Committee notes that section 276 of the Penal Code criminalizes the buying or selling of a minor for the purpose of prostitution. Section 279 of the Penal Code further covers offences related to transferring control of a person with intent to subject him/her to unlawful compulsory labour. Moreover, section 282 of the Penal Code states that whoever entices or leads away, even with his/her consent, any person for sale or immoral purposes to be carried outside South Sudan, commits an offence and shall be punished with imprisonment for a term not exceeding seven years.

The Committee also notes that according to section 119 of the Child Act of 2008 any person who takes part in any transaction, the object of which is to transfer or confer, wholly or partly, temporarily or permanently, the possession or custody of a child for any valuable consideration commits the offence of trafficking and shall be liable to imprisonment for a term not exceeding ten years. It notes that according to section 5 of the Child Act, a “child” means persons under the age of 18 years while the term “trafficking” includes the recruitment, transportation, transfer, sale, harbouring or receipt of a person, by means of threat or use of force, or other forms of coercion, of abduction, deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Section 22 of the Child Act further provides for penalties of imprisonment for a term of 14 years for offences related to the abduction and trafficking of children for any purpose or form. The Committee requests the Government to provide information on the application of the Child Act and the Penal Code, in practice, including, for example, statistics on the number and nature of offences reported, investigations, prosecutions, convictions and penal sanctions imposed with regard to the trafficking of children under 18 years.

2. Slavery, debt bondage, forced or compulsory labour. The Committee notes that article 13 of the Constitution prohibits slavery and slave trade in all forms and provides that no person shall be held in slavery or servitude nor should be required to perform forced or compulsory labour. It also notes that section 277 of the Penal Code prohibits any person from unlawfully compelling any person to labour against his or her will and provides for a sanction of two years imprisonment or a fine or both to any person who imposes forced labour.

3. Compulsory recruitment of children for use in armed conflict. The Committee notes that according to section 31(1) of the Child Act, the minimum age for conscription or voluntary recruitment into armed forces or groups shall be 18 years. Section 31(2) further states that the Government shall ensure that no child shall be used or recruited to engage in any military or paramilitary activities, whether armed or unarmed, including but not limited to work as sentries, informants, agents or spies, cooks, in transport, as labourers, for sexual purposes, or any other forms of work that do not serve the interest of the child. Moreover, according to section 32 of the Child Act, any person involved in the recruitment of children into an armed force or use of a child in any activity set forth above shall be punished with imprisonment for a term of up to ten years or with a fine or both.

Furthermore, according to section 20 of the Sudan People’s Liberation Army Act, enrolment into the Sudan People’s Liberation Army (SPLA) military services shall be voluntary, and, as per section 22(2), one of the eligibility criteria for enrolment is the attainment of 18 years of age.

The Committee notes that according to the Report of the Secretary-General on children and armed conflict to the United Nations Security Council of 11 December 2014 (S/2014/884) (Report of the Secretary-General on children and armed conflict, 2014), the recruitment and use of children has remained a trend linked to the ongoing instability and increased mobilization of armed groups. From March 2011 to September 2014, a total of 171 incidents of recruitment and use of children were reported, affecting 3,731 children (3,702 boys and 29 girls), of which 137 incidents affecting 1,219 children were verified. A total of 1,111 children were reportedly killed and 472 injured during this period. The Committee notes from this report that the main perpetrators were the SPLA in opposition and other armed groups. In addition, children were mobilized from cattle camps to fight alongside the opposition, in what is known as the “White Army”. This report further indicates that, in January 2014, a group comprising several thousand armed youths associated with the White Army was observed in Malakal (Upper Nile State) and another group of an estimated 2,000 armed youths was observed in Ulang (Upper Nile State). The majority of both groups were believed to be under 18 years of age and some as young as 12 to 13 years. The United Nations also received reports of cross-border mobilization of children by foreign armed groups from within refugee populations inside South Sudan along the Sudanese border.

The Committee also notes from a report from the United Nations Office of the Special Representative of the Secretary-General for Children and Armed Conflict, published on 28 January 2015 (Report from the UN Office, 2015), that some of the child soldiers in South Sudan have been fighting for up to four years and many have never attended school. In the past year alone, 12,000 children, mostly boys, have been recruited and used as soldiers by armed forces and groups in South Sudan as a whole. The Committee expresses its serious concern at the situation and the number of children involved in armed conflict. The Committee therefore urges the Government to take immediate and effective measures to put a stop in practice to the recruitment of children under 18 years of age by armed groups and the armed forces as well as measures to ensure the demobilization of children involved in armed conflict. It also requests the Government to take immediate and effective measures to ensure that thorough investigations and robust prosecutions of persons who forcibly recruit children under 18 years of age for use in armed conflict are carried out and to ensure that adequate penalties constituting an effective deterrent are imposed in practice. The Committee requests the Government to provide information on the measures taken and results achieved in this respect.

Clause (b). Use, procuring or offering of a child for prostitution, pornography or pornographic performances. The Committee notes that, according to section 22(2)(c) of the Child Act, every child who is under the care of parents, a legal guardian, teachers, police or any other person who has care of a child shall be protected from offences related to the use of a child in prostitution or other sexual practices. Whoever commits any of the above offences shall be sentenced to imprisonment for a term not exceeding 14 years (section 22(3)). It also notes that, according to section 254(d) of the Penal Code, whoever procures a child to leave his/her usual place of residence with the intent that he/she may become an inmate of, or frequent, a brothel elsewhere shall be punished with imprisonment for up to ten years or a fine or both. Section 258 of the Penal Code further states that any parent or guardian, who causes or allows his/her child under the age of 18 years to associate with prostitutes or to be employed as a prostitute or to reside in a brothel, shall be punished. In addition, the Penal Code also provides for penalties for offences related to soliciting another person for the purposes of prostitution (section 252); and living off or facilitating prostitution (section 253).

With regard to pornography, section 22(2)(d) of the Child Act criminalizes offences related to the use of a child in pornographic performances and materials.

Clause (c). Use, procuring or offering a child for illicit activities, in particular for the production and trafficking of drugs. The Committee notes that, according to section 24(1) of the Child Act, every child shall be protected from being involved in the production, trafficking or distribution of narcotics and other harmful drugs and substances. Section 25(3) establishes penalties for the above offences related to drugs and narcotics, which shall be imprisonment for a term not exceeding 14 years.

Clause (d) and Article 4(1). Hazardous work and determination of hazardous work. 1. 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 detailed comments under the Minimum Age Convention, 1973 (No. 138).

2. Hazardous work in the agriculture and livestock sector. The Committee notes that, according to the ILO–IPEC report of 2013 entitled Child labour and education in pastoralist communities in South Sudan, children between the ages of 5–17 years are highly utilized among the pastoralist communities in the daily workings of the cattle camp which often expose children to many hazards, including danger from cattle and wildlife, and exposure to animal-borne diseases. This report also indicates that, together with agriculture, forestry and fisheries, livestock represents nearly 60 per cent of hazardous labour done by children between the ages of 5–17 years. The Committee requests the Government to take the necessary measures to ensure that children working in the agricultural and livestock sector, particularly from the pastoralist communities, are protected against hazardous types of work. It asks the Government to provide specific information on the steps taken in this regard, including measures to enforce the relevant legislation prohibiting children’s involvement in hazardous work in these sectors.

Article 5. Monitoring mechanisms. The Committee notes the Government’s report under the Minimum Age Convention, 1973 (No. 138), that within the framework of the ILO–IPEC Tackling child labour through education (TACKLE) project, South Sudan established a National Steering Committee on the Elimination of Child Labour as well as a Child Labour Unit. The Committee requests the Government to provide information on the activities of the National Steering Committee and the Child Labour Unit as well as information on any other mechanisms established for the elimination of the worst forms of child labour.

Article 6. Programmes of action. The Government report states that after the enactment of the new Labour Bill, programmes and policies aimed at reducing the worst forms of child labour will be elaborated, in collaboration with local authorities at the community level, including the police and the Public Attorney. The Committee requests the Government to take the necessary measures to adopt, without delay, national programmes and policies against the worst forms of child labour and to provide information on its implementation.

Action plan against the recruitment and use of children in the armed conflict. The Committee notes from the Report of the Secretary-General on children and armed conflict, 2014, that the Government signed a recommitment agreement in June 2014 with the United Nations towards the full implementation of the revised action plan, which was first signed by the Government in 2009 and further revised in 2013. This action plan aims to put an end to the recruitment, use, killing and maiming of children and sexual violence against children, and to investigate and hold accountable perpetrators of these grave violations. This report also indicates that, in 2012, a national technical team to lead the implementation of this action plan was established, comprising: the SPLA Child Protection Unit; the co-chairs of the country task force monitoring and reporting grave violations against children; the South Sudan Disarmament, Demobilization and Reintegration Commission; and the SPLA military judges and advocates. The Committee notes from this report that in 2012, 421 boys and 29 girls who sought to voluntarily enlist with the SPLA were rejected.

Moreover, in 2012, the SPLA and the United Nations developed a child protection training module and provided training to, and sensitized, over 30,000 SPLA officers and non-commissioned officers throughout South Sudan on the provisions of the action plan, the Child Act, the SPLA Act and international standards for the protection of children in armed conflict. The Committee finally notes from this report that the campaign “Children, Not Soldiers” was launched in October 2014 with the aim of ending and preventing the recruitment of children by Government forces by 2016. The Committee requests the Government to provide information on the impact of the “Children, Not Soldiers” campaign in putting an end to the recruitment and use of children in armed conflicts. It also requests the Government to provide information on the implementation of the revised action plan and the results achieved in terms of the number of children prevented, and withdrawn, from armed conflict.

Article 7(1) Penalties. The Committee notes that the Child Act does not appear to establish penalties for violations of the provisions related to the prohibition of hazardous work by children under 18 years of age. The Committee requests the Government to take the necessary measures to ensure that sufficiently effective and dissuasive penalties are established for the offences related to the employment of children under 18 years of age in hazardous work. It also requests the Government to provide information on the application of the penalties in practice in cases of violations of the provisions relating to Article 3(a)–(c) of the Convention, including the number and kinds of penalties imposed.

Article 7(2). Effective and time-bound measures. Clause (a). Preventing the engagement of children in the worst forms of child labour. Access to free basic education. The Committee notes that section 24(iii) of the Education Act of 2008 provides for free and compulsory primary education which shall constitute the basic cycle of academic education of eight years’ duration, from the age of 6 to 14 (section 8). It also notes that section 24(viii) and Part II of the Education Act require every parent of a child of compulsory school age to ensure the attendance of such a child at school until the completion of primary education.

However, the Committee notes that, according to UNICEF estimates, more than 1 million primary school-aged children, mostly from rural areas, are not in school, and about 70 per cent of children aged 6–17 years have never entered a classroom. The completion rate in primary schools is less than 10 per cent, one of the lowest in the world. Moreover, the South Sudan Statistics of 2014, compiled by the United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA) indicates that the net enrolment rate in primary education is 44.4 per cent (50.8 per cent male and 37 per cent female), while this rate is only 1.6 per cent in secondary education. Recalling that free basic education contributes to preventing the engagement of children in the worst forms of child labour, the Committee urges the Government to take the necessary measures to ensure access to free basic education and to strengthen the functioning of the education system, including by taking measures to increase the school enrolment, attendance and completion rates, both at the primary and secondary levels. It requests the Government to provide information on the measures taken in this regard.

Clause (b). Provide the necessary and appropriate direct assistance for the removal of children from the worst forms of child labour and for their rehabilitation and social integration. Child soldiers. The Committee notes that, according to the Report of the Secretary-General on children and armed conflict, 2014, the South Sudan Disarmament, Demobilization and Reintegration Commission, supported by UNICEF, developed a comprehensive project document in 2012 for the release and reintegration of children associated with armed forces and other groups and other children affected by conflict. Following this project, a total of 493 children (343 from the SPLA, nine from the South Sudan National Police Force and 141 from non-state actors integrating into the SPLA) were released through formal disarmament, demobilization and reintegration (DDR) processes and an additional 210 children who were released in 2010 continued to receive reintegration assistance. These children were assisted to return to their families and communities and were provided with social and economic reintegration assistance. The Committee also notes from the Report from the UN Office, 2015, that a total of 3,000 South Sudanese child soldiers were released from the South Sudan Democratic Army (SSDA/M) Cobra faction. The Committee requests the Government to intensify its efforts and take effective and time-bound measures to remove children from armed groups and forces and ensure their rehabilitation and social integration. It also requests the Government to provide information on the number of child soldiers removed from armed forces and groups and reintegrated through the DDR processes.

Clause (d). Identifying and reaching out to children at special risk. 1. Internally displaced children, refugees and orphans. The Committee notes that, according to the Report of the Secretary-General on children and armed conflict, 2014, family separation has been a critical child protection concern since December 2013. About 6,000 children have been registered as separated, unaccompanied or missing, many of whom are girls who are vulnerable to a wide range of violations and abuses. According to UNICEF estimates since the violence erupted in December 2013, almost 750,000 children have been internally displaced and more than 320,000 children are living as refugees. Considering that internally displaced children, refugees and orphans are at an increased risk of being engaged in the worst forms of child labour, the Committee requests the Government to take effective and time-bound measures to protect these children, particularly girls from the worst forms of child labour. It requests the Government to provide information on the measures taken in this regard and on the results achieved.

2. Street children. The Committee notes that the observations made by the Employers Association of South Sudan (EASS) and the South Sudan Workers Trade Union Federation (SWTUF) refer to a programme initiated by the Government to protect street children. The Government states that the Ministry of Gender is implementing a strategic plan to protect street children with the cooperating partners at both national and state levels. The Committee requests the Government to provide information on the concrete measures taken to remove and rehabilitate street children and the results achieved.

Application of the Convention in practice. The Committee notes the Government’s statement that the political crisis in some parts of the country has posed some difficulties to children living in these locations. The Government’s report also indicates that no official reports or statistical information on the situation of children in the worst forms of child labour are available. The Committee notes the Government’s intention to seek ILO technical support to carry out a study on the extent of the worst forms of child labour in the country as well as a request for the extension of the ILO–IPEC TACKLE project which came to an end in 2013. The Committee requests the Government to take the necessary measures to ensure the availability of up-to-date statistical information on the worst forms of child labour in the country, including information on the nature, extent and trends of the worst forms of child labour, the number of children covered by the measures giving effect to the Convention, the number and nature of infringements reported, investigations, prosecutions, convictions and penal sanctions applied. To the extent possible, all information should be disaggregated by sex and age.