Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes the Government's report and the discussion which took place in the Conference Committee in 1992.

For a number of years the Committee has been commenting on serious discrepancies between national law and practice and the provisions of the Convention. The Committee noted in particular the following:

- under article 25, paragraph (1), of the 1985 Constitution every person is obliged to voluntarily and honestly participate in lawful and productive work, to observe labour discipline and strive to achieve the individual and communal production targets required or prescribed by law; article 25, paragraph (2), provides that notwithstanding paragraph 1, there shall be no forced labour. However, article 25, paragraph (3)(d), provides that no work shall be considered as forced labour if it is relief work that is part of (ii) compulsory nation-building initiatives, in accordance with the law, (iii) national efforts in harnessing the contribution of everyone in the work of developing the society and national economy and ensuring success in development;

- the Local Government (District Authorities) Act, 1982, the Employment Ordinance, 1952, as amended, the Human Resources Deployment Act, 1983, the Penal Code, the Resettlement of Offenders Act, 1969, the Ward Development Committees Act, 1969, and the Local Finances Act, 1982, under which compulsory labour may be imposed inter alia by administrative authority, on the basis of a general obligation to work and for purposes of economic development;

- the Committee also took note of several by-laws made between 1988 and 1990 under section 148 of the Local Government (District Authorities Act), 1982, entitled "self-help and community development", "nation-building", "enforcement of human resources deployment", "cultivation of agriculture", "planting and maintaining trees". The Committee noted in this regard for example that under the Mwanga District Council Self-help and Community Development by-laws 1989, Government Notice No. 246 of 20 July 1990, "the Council may direct that any kind of development activities be done by all residents in the affected area within the Council or persons with special knowledge"; while no limitation is imposed on the nature of the projects, the intended beneficiaries or the duration of the participation, full-time employees of Government, Council, the Chama Cha Mapinduzi Party, the parastatal organizations and private companies are inter alia exempted from participation. For other residents, participation is mandatory and enforceable through fines and "extortion of property". Such compulsory labour is not necessarily "minor" nor performed "by the members of the community in the direct interest of the said community" and thus is not confined to "minor communal services" under Article 2(2)(e) of the Convention.

- the constitution of the Chama Cha Mapinduzi (CCM) Party (which was previously the sole political party) sets out as part of its objectives that the CCM seeks to ensure that every able-bodied person works.

The Committee expressed its concern at the institutionalized and systematic compulsion to work established in law at all levels, from the National Constitution through Acts of Parliament to District by-laws, in contradiction with Convention No. 29 and Article 1(b) of Convention No. 105, ratified by the United Republic of Tanzania, which prohibits the use of compulsory labour for development purposes.

The Committee notes the Government's indication to the Conference Committee that an interministerial technical committee was responsible for the consolidation of three labour acts which would revoke the Employment Ordinance No. 366 of 1952, as amended, but that this work was suspended while constitutional amendments were under consideration in the National Assembly. The Committee also notes that the Government referred to a request for Office comments on the revised version of the draft Employment Act which had originally been prepared with the technical assistance of the ILO in 1989. The Committee notes that these comments, including on forced labour provisions were sent to the Government in July 1992 followed by a technical advisory mission in August; it was suggested that the Government list the provisions in all laws that cause difficulties and amend or repeal them, as necessary, in a schedule to the draft Employment Act or another bill.

The Committee notes the Government's indication in its report of November 1992 that lack of an efficient coordinating system renders difficult amending legislation which is not under the sphere of labour legislation. Interministerial consultations continue with a view to rectifying the situation, but will take time. An education exercise nation-wide of labour officers has taken place so as to train them in international obligations. Referring to article 25(3)(d)(i) and (ii) of the Constitution the Government considers that they are in conformity respectively with article 2(a) and (b) of the Convention. The Committee observes that its comments did not relate to subparagraph (i) of article 25(3)(d) of the Constitution; as concerns subparagraph (ii) (compulsory nation-building initiatives), the Committee points out that Article 2(a) of the Convention deals with work exacted by virtue of compulsory military service by providing that only work of a purely military character does not come under the purview of the Convention; the scope of subparagraph (ii), which relates to "compulsory nation-building initiatives" is different.

The Committee has noted that further to the by-laws adopted between 1988 and 1990 to which it referred in its previous comments, several by-laws have been adopted in 1991 and 1992 under section 148 of the Local Government (District Authorities) Act, 1982, also entitled "nation-building", "enforcement of human resources deployment", "self-help and community development" as well as "construction and maintenance of village roads".

The Committee can only express once again the hope that the Government will reconsider all the provisions contrary to the Convention, that the draft Employment Act will be brought into conformity with the Convention and that the Government will repeal or amend at an early stage all the provisions contrary to the Convention. In particular action is called for on the following points which the Committee has raised in its comments over a number of years:

Tanzania mainland

General obligation to work. 1. In previous comments the Committee referred to the Human Resources Deployment Act, 1983, which makes provision for the establishment of machinery designed to regulate and facilitate the engagement of all able-bodied persons in productive work. Under section 3 of this Act, every local government authority shall make arrangements to ensure that every able-bodied person over 15 years of age and resident within its area of jurisdiction engages in productive or other lawful employment; for this purpose, the local authority shall establish and maintain registers of employers and of all residents capable of working (sections 13 and 14), and work out a system which will enable the registered employer to utilize the available registered unemployed residents within its area of jurisdiction (section 20). Under section 17 of the Act, arrangements made by the Minister of Labour and Manpower Development are to provide for the transfer to other districts and subsequent employment of unemployed residents, and under section 24, failure to comply with any provision of the Act is punishable with a fine and imprisonment. Referring to the explanations provided in paragraphs 34 to 37 and 45 to 48 of its 1979 General Survey on the Abolition of Forced Labour, the Committee pointed out that legislation obliging all able-bodied citizens to engage in a gainful occupation subject to penal sanctions is incompatible with the Convention.

The Committee again expresses the hope that the necessary measures will rapidly be taken to bring the Human Resources Deployment Act into conformity with the Convention and that the Government will indicate the provisions adopted.

2. The Committee previously noted that the Written Laws (Miscellaneous Amendments) (No. 2) Act, 1983, amended section 176 of the Penal Code by inserting, inter alia, a new paragraph (8), punishing "any able-bodied person who is not engaged in any productive work and has no visible means of subsistence". Noting also that persons chargeable under section 176 of the Penal Code may be subjected to administrative measures under the Human Resources Deployment Act, the Committee requested the Government to supply full information on the application in practice of section 176(8), including any court decisions defining or illustrating its scope and any guidelines followed by administrative authorities in deciding who is chargeable under this provision. The Committee hopes once more that the Government will re-examine section 176(8) of the Penal Code in the light of the Convention and the explanations provided in paragraphs 34 to 37 and 45 to 48 of the 1979 General Survey on the Abolition of Forced Labour, referred to above, and that it will indicate the measures taken or contemplated in this regard to ensure the observance of the Convention.

Compulsory labour for public purposes and development schemes. 3. In comments made over a number of years, the Committee observed that, contrary to the Convention, Part X of the Employment Ordinance permits forced labour to be exacted for public purposes, and section 6 of the Ward Development Committees Act, 1969, gives ward development committees the power to make orders requiring all adult citizens resident in the area of the ward to participate in the implementation of any scheme for agricultural or pastoral development, the construction of works or buildings for the social welfare of residents, the establishment of any industry or the construction of any public utility. The Committee noted previously the Government's indication that the non-conformity of Part X of the Employment Ordinance, and section 6 of the Ward Development Committees Act would be corrected when the new Labour Code would be adopted.

Referring also to the aforementioned draft Employment Act, the Committee hopes that the necessary action will soon be taken to bring Part X of the Employment Ordinance and section 6 of the Ward Development Committees Act into conformity with the Convention and that the Government will indicate the provisions adopted to this end.

4. The Committee had previously noted that under paragraph 103 of the first schedule to section 118(4) of the Local Government (District Authorities) Act, 1982, the performance of unpaid communal labour or the payment of compensation in lieu thereof may be required for a wide range of purposes "not barred by the Convention respecting the use of forced labour". Referring to paragraphs 36 and 37 of its 1979 General Survey on the Abolition of Forced Labour, the Committee requested the Government to indicate any measures taken or envisaged to ensure that such a requirement is limited to emergency work required by circumstances endangering the existence or well-being of the population, or to minor communal services - i.e. primarily maintenance work - performed in the direct interest of the local community and not intended to benefit a wider group. The Government indicated previously that in practice the local government legislation was used only for communal works for the benefit of the community, resulting from decisions of the community.

The Committee had, however, noted that by-laws imposing compulsory cultivation on resident landholders had indeed been made by district councils and approved by the national Government and that, under section 148 of the Act, by-laws may be adopted by district councils, subject to the consent of the Minister, for carrying into effect and for the purpose of any of the functions conferred by or under the Act or any other written law.

Referring also to the recent example, mentioned before, of sweeping by-laws made under section 148 of the Act and providing for compulsory labour for development purposes, the Committee hopes that paragraph 103 of the first schedule to section 118(4) of the Local Government (District Authorities) Act, 1982, will be amended so as to remain within the limits of Article 2, paragraph 2(d) and (e), of the Convention, and that measures will also be taken to ensure that no by-laws providing for the imposition of compulsory labour are approved under section 148 of the Act.

5. Compulsory cultivation. The Committee has noted that the Local Government Ordinance and following its repeal, the Local Government (District Authorities) Act, 1982, and section 121(e) of the Employment Ordinance (as amended by Act No. 82 of 1962) empower local authorities to impose compulsory cultivation. By-laws which restrict the production of food crops and oblige resident landholders to cultivate and maintain a fixed area of cash crops, under pain of a fine and imprisonment have indeed been made by district councils and approved by the national Government.

The Committee trusts that the necessary measures will be taken without further delay to bring the Local Government (District Authorities) Act, 1982 and section 121(e) of the Employment Ordinance, as well as any by-laws made and approved thereunder into conformity with the Convention, and that the Government will indicate the provisions adopted to this end.

6. Article 2, paragraph (2)(c), of the Convention. In previous comments, the Committee noted that sections 4 to 8 of the Resettlement of Offenders Act, 1969, and sections 4 and 17 of the Resettlement of Offenders Regulations, 1969, permit resettlement orders, with an obligation to perform compulsory labour, to be made by administrative decision. In addition, under sections 26 and 27 of the Human Resources Deployment Act, the Minister shall make such arrangements as will provide for a smooth and coordinated transfer or any other measure which will provide for the rehabilitation and full deployment of persons chargeable, or previously convicted under sections 176 and 177 of the Penal Code. In its report for the period ending 15 October 1988 the Government stated that since work in the United Republic of Tanzania can only be exacted from a person as a consequence of a conviction in a court of law, it follows, therefore, that no compulsory labour can be imposed by an administrative or non-judicial body. The Committee again expresses the hope that the provisions of the Resettlement of Offenders Act, 1969, and the Resettlement of Offenders Regulations, 1969, referred to above, which appear to authorize the imposition of compulsory labour by administrative order will accordingly be amended so as to ensure in law that no compulsory labour may be imposed on offenders otherwise than as a consequence of a conviction in a court of law, and that the Government will indicate the action taken to this end.