Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the information supplied by the Government concerning the penalties incurred for violations of section 120 of the Penal Code, which prohibits the formation of unarmed gatherings on public thoroughfares such as to disturb public tranquillity.

The Committee notes that, under section 86 of Order No. 642 APAS of 4 December 1950 issuing the regulations on prisons, work is compulsory for all those convicted of general offences. Hence, persons serving a prison sentence are subjected to prison labour. The Committee recalls that it is contrary to the Convention to subject a person to compulsory labour, including in the form of compulsory prison labour, because that person has expressed certain political views, has opposed the established political, social or economic system or has participated in a strike.

Article 1(a) of the Convention. Imposition of prison sentences involving an obligation to work as punishment for expressing political views or views ideologically opposed to the established political, social or economic system. Freedom of opinion and expression. The Committee notes that certain sections of the Penal Code could be used to penalize the expression of political opinions or opposition to the established political system through prison sentences involving compulsory labour. It notes in particular sections 177–180, under which any attack on the honour or sensibility of certain persons exercising public authority (sections 178 and 180), or against the authority of the judicial system or its independence (section 179), constitutes an offence punishable by imprisonment. Furthermore, sections 361–364 of the Penal Code provide for the punishment of slurs upon the honour and dignity of an individual, insults, calumny and defamation. Section 364 prescribes imprisonment for any person found guilty of committing defamation, as defined in section 361, namely “any allegation or imputation of a fact which is detrimental to the honour or dignity of individuals or entities to which the act is attributed”. Under the terms of section 365, any person against whom legal action is taken for defamation shall have the opportunity to provide proof of truth of his or her statements and thereby have such action ended. The Committee also notes that sections 114–123 of Ordinance No. 92‑024bis/PRES of 29 April 1992 issuing the Code of Information contain similar provisions. This Ordinance also contains provisions prescribing imprisonment for certain press offences.

Since neither the penal legislation nor the prison regulations appear to contain special provisions governing the detention of persons convicted of political offences, any person convicted for one of the offences established by the abovementioned provisions of the Penal Code or the Code of Information may be compelled to perform prison labour. In order to be able to assess the scope of these provisions, the Committee would be grateful if the Government would provide information on their application in practice, stating whether any court decisions have been taken on the basis of these provisions and supplying sample copies thereof which will enable the Committee to ascertain that these provisions serve their proper purpose and are not used to penalize the expression of political opinions by sanctions of imprisonment involving compulsory labour.

Freedom of association. In its previous comments the Committee noted that, under the terms of sections 220 and 221 of the Penal Code, the founders or officials of an association unlawfully maintained or reconstituted after its dissolution by the authorities or in breach of orders relating to its recognition shall be liable to imprisonment involving, as indicated above, the obligation to work. It asked the Government to indicate the criteria used by the authority for recognizing or prohibiting an association and to supply information on the practical application of sections 220 and 221 of the Penal Code.

The Committee notes from the information sent by the Government and the text of Act No. 10/92/ADP concerning freedom of association that associations may be formed freely and without prior administrative authorization, merely being obliged to complete certain formalities to declare their existence. Section 47 of this Act states that dissolution of the association may be pronounced by decree of the Head of State adopted in the Council of Ministers, if an investigation establishes that the association is pursuing an unlawful objective or cause, is engaging in activities contrary to its statutes or in demonstrations likely to disrupt public order, morals or peace, or possesses the characteristics of a private militia or subversive organization.

Article 1(b). Mobilization and use of labour for purposes of economic development. National Development Service. With reference to the National Development Service (SND), the Committee previously drew the Government’s attention to the fact that programmes involving the compulsory participation of young people, as part of their military service or instead of it, in activities geared to the development of their country, have been considered incompatible with the Conventions on forced labour. Hence SND, for which any Burkinabé citizen between 18 and 30 years of age may be called up, is accomplished in two successive phases: the training phase, during which those called up receive an essentially civic and patriotic training and acquire the rudiments of vocational training in priority sectors for development; and a production phase, in which they make their contribution to the socio-economic development of the country in education, agriculture and stock-rearing sectors, and also in other sectors making use of wage earners and persons called up from the rural and informal sectors. The 12 months spent engaged in SND are considered as time spent in military service, thus releasing the citizen from any other military obligation (Decree No. 98‑292/PRES/PM/DEF and Decree No. 99-446/PRES/PM).

The Government indicates in its last report that SND is a civic service which imbues young persons with values of solidarity and patriotism and that it has never been a question of this service forcing young persons to participate in development programmes. Each person called up, voluntarily and according to his or her profile, registers and chooses his or her area of activity. The Government points out that work performed in the context of SND may be considered the equivalent of work experience for the persons concerned, whose priority is to find employment. Moreover, there are SND training centres for mechanical skills, masonry, carpentry, etc., which young persons may make use of to facilitate their vocational integration. The Committee notes this information but points out that there is no indication in the legislation establishing and regulating SND that persons who have been called up participate voluntarily in this service. The Committee hopes that the Government will be able to review the matter and take the necessary steps to ensure that the legislation makes explicit provision for the voluntary nature of participation in this service.

Article 1(d). Penalties for participation in a strike or refusal to comply with a requisition order. In its previous comments the Committee noted that, under the terms of the legislation, the authorities have wide-ranging powers to requisition officials to ensure the continuation of the administration and the safety of persons and property, and any failure by officials to discharge their duties may incur disciplinary penalties, without prejudice, where applicable, to the penalties laid down by the penal legislation (Act No. 013/98/AN of 18 April 1998 issuing the legal provisions applicable to posts and officials in the public service and Act No. 45-60/AN of 27 July 1960 issuing regulations on the right to strike of state officials and employees). It asked the Government to indicate the penalties applicable to public officials who refuse to comply with a requisition order. The Committee notes the Government’s indication that they cannot incur any criminal penalties since no criminal penalties to this end are provided for in the Penal Code, the Labour Code or Act No. 45-60/AN.

Furthermore, the Committee notes that section 386 of the new Labour Code (Act No. 028-2008/AN) states that the exercise of the right to strike shall on no account entail the occupation of work places or their immediate vicinity, otherwise the criminal penalties established by the legislation in force shall be incurred. The Committee requests the Government to indicate the criminal penalties which, in this case, might be applied to strikers. It recalls that, according to the principles of freedom of association, the occupation of workplaces or their immediate vicinity could only incur penalties in cases where a strike ceased to be peaceful or in cases where the freedom of non-strikers to work or the enterprise management’s right to enter the premises was violated.