Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the report sent by the Government.

1. The Committee notes that section 90 of Decree No. 63-103 establishing the organization and rules of penitentiary establishments, applies to all convicted prisoners regardless of the nature of the offence of which they have been convicted. This means that prisoners convicted of political offences could be subjected to forced labour under the above provision.

2. Article 1(a) of the Convention. The Committee notes that penalties involving compulsory labour may be imposed under several provisions of the national legislation in circumstances covered by Article 1(a) of the Convention:

-  section 169 of the Penal Code of 15 July 1961, under which insults to an official may be punished with imprisonment of from three to six months;

-  sections 54 to 61 of Act No. 98-23, amending Act No. 97-26 on freedom of the press, which provide for penalties of imprisonment of varying length for libel.

The Committee observes that there are provisions on the right of association which allow penalties of imprisonment in which persons convicted of political offences can be forced to work (section 90 of Decree No. 63-103). The provisions concerned are sections 2 and 23 of Ordinance No. 84-6 of 1 March 1984 regulating associations. Pursuant to section 2, any association founded for a cause or purpose contrary to the laws and regulations in force or to morality, or for the purpose of breaching the peace or the territorial integrity of the nation or a purpose which conflicts with the form of government shall automatically be null and void. According to section 23, anyone who takes part in the creation or administration of an undeclared association may be sentenced to imprisonment of from one month to a year.

The Committee notes that section 2 prohibits any regional or ethnic associations. The latter are defined as any association established for the purpose of maintaining the particularities of a region or ethnic group in another region and/or any association of Nigeriens from one region residing in another region.

The Committee recalls that the Convention prohibits the use of all forced or compulsory labour, including compulsory prison labour, as a means of coercion or political education or as a sanction for expressing certain political opinions or ideological opposition to the established political, social or economic order.

The Committee also recalls that the protection established by the Convention is not confined to the expression of views or of opposition to the established system. Consequently, there are no grounds for considering that activities which aim to introduce fundamental changes to state institutions are outside the scope of the protection afforded by the Convention provided that violence is not used or advocated as a means of attaining the objective set.

The Committee also points out the importance for effective enforcement of the Convention of guaranteeing by law freedom of expression, assembly and association, the restriction of which can have a direct effect on the application of the Convention. Indeed, political opposition to the established order is often expressed in the exercise of these freedoms.

The Committee asks the Government to provide information on the application in practice of the abovementioned provisions, indicating in particular the number of persons convicted under such provisions, and to provide copies of the relevant court decisions.

3. Article 1(d). With regard to the right to strike of public servants, the Committee notes that according to section 9 of Ordinance No. 96-009 of 21 March 1996 regulating the right to strike, the administrative authorities shall requisition a number of public servants working in a strategic sector in order to ensure a minimum service. Public servants requisitioned for such work who participate in the strike are treated as having abandoned their duties and are punished by imprisonment of from two to five years under section 119(2) of the Penal Code. Having been convicted for participating in a strike, these public servants may be subjected to compulsory prison labour.

The Committee recalls that it is not incompatible with the Convention to impose penalties for participating in strikes in the civil service or other essential services, provided that such provisions are applicable only to essential services in the strict sense of the term (that is, services whose interruption would endanger the existence or well-being of the whole or part of the population).

Section 2 of Ordinance No. 96-010 of 21 March 1996 sets forth a list of services deemed to be strategic and/or vital by the Government and in which the right to strike may be restricted. The Committee observes that the list is very long and includes services which, according to the Committee on Freedom of Association, do not constitute essential services in the strict sense of the term (paragraph 545 of the Digest of decisions and principles of the Freedom of Association Committee). Broadly speaking, the following do not, according to the Committee on Freedom of Association, constitute essential services in which strikes may be prohibited:

-  state media;

-  petroleum provision services;

-  banking and finance;

-  public transport;

-  garbage collection.

The Committee asks the Government to provide information on the practical implementation of section 9 of the Ordinance regulating the right to strike, and on the measures taken or envisaged to ensure that all the services mentioned in the list established by Ordinance No. 96-010 meet the criteria for "essential services" in the strict sense of the term (that is, services the interruption of which would endanger the existence or well-being of the whole or part of the population).

4. The Committee also asks the Government to send copies of the legislative provisions governing the protection of the internal and external security of the State, and of the provisions governing states of siege and states of emergency.