Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 3 of the Convention. Clause (a). Worst forms of child labour. All forms of slavery or similar to slavery. 1. Sale and trafficking of  children. The Committee previously requested the Government to supply the text of any relevant legislation prohibiting the sale and trafficking of children under 18 years. The Committee notes the Government’s statement that the draft Child Care and Protection Bill is currently being prepared, to replace the Children’s Act (No. 33 of 1960), and is expected to be tabled in Parliament in 2010. Chapter 12 (sections 157–164) of the draft Child Care and Protection Bill relates to child trafficking. Section 157 of the draft Child Care and Protection Bill states that a person may not traffic a child or allow a child to be trafficked and cannot use as a defence the fact that the persons having control of the child consented, or that the intended exploitation or adoption of the child did not occur. The trafficking of a child by their parents or legal guardians is prohibited pursuant to section 160 of the draft Child Care and Protection Bill and section 162 states that a child victim of trafficking must be referred to a social worker for investigation and may be housed in a safe house. Where the child is an illegal resident, the Children’s Court may order that the child be assisted in applying for asylum, or, if the child is in need of care and protection, the child may remain in Namibia for a duration determined by the court.

The Committee notes that the 2007 report “Child trafficking linked to child labour and commercial sexual exploitation of children in Namibia: A child labour related rapid assessment” (Trafficking Rapid Assessment), issued by the ILO, uncovered three cases of children who were trafficked to do domestic work, child minding and commercial livestock work. The Trafficking Rapid Assessment also indicates that children were trafficked from Angola and Zambia to Namibia for livestock and child-minding work, and that children were trafficked within Namibia for work in agriculture, road construction, vending and commercial sex work. However, the Committee notes the statement in the UNODC Global Report on Trafficking in Persons 2009 that, because of the absence of a specific provision on human trafficking in Namibia, no prosecutions or convictions were recorded for trafficking in persons during the reporting period. Therefore, the Committee urges the Government to take the necessary measures to ensure the adoption of the draft Child Care and Protection Bill in the near future, and to supply a copy once adopted.

2. Forced recruitment of children for use in armed conflict. The Committee previously noted the information in the Government’s report that the Namibian Defence Force did not recruit children under 18 years. It requested the Government to provide with its next report the text of the legislation prohibiting the recruitment of children under 18 years. The Committee notes the Government’s declaration upon ratification of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, that the minimum age for recruitment into the armed forces is 18. The Committee also notes the information for potential recruits on the web site for the Ministry of Defence of Namibia (www.mod.gov.na) that new recruits are to be between the ages of 18 and 25.

Clause (b). 1. Use, procuring or offering of a child for prostitution. The Committee previously noted that the Immorality Act 1988 and the Combating of Immoral Practices Act 1980, as amended in 2000, prohibit procuring prostitution under various provisions. In particular, it noted the information in the Government’s report that section 3(a) of the Immorality Act punishes anyone who, being the parent or guardian of a child, has ordered, permitted or received any consideration for the prostitution of that child. Although these legislative measures prohibit parents or guardians from offering or procuring a child for prostitution, they do not prohibit the offering or procuring by persons other than parents or guardians and they do not prohibit the use of a child for prostitution. Section 5 states that any person who inveigles or entices any female to a brothel for the purpose of prostitution, or procures any female to become a prostitute is guilty of an offence. The Committee recalled that the Convention required a prohibition in respect of both boys and girls and requested the Government to take measures to prohibit the use, procuring or offering of boys and girls for prostitution and to provide information on the measures taken in this regard.

The Committee notes the Government’s statement that the 2000 amendment to the Combating of Immoral Practices Act 1980 replaced the term “girl” with “child” in section 14 of this Act. However, the Committee observes that section 14 only prohibits the commission of an immoral or indecent act with a person under the age of 16 (by anyone who is three years older, who is not married to the child), not under the age of 18, as provided for in Article 3 of the Convention. The Committee also notes the statement in the Action Programme to Eliminate Child Labour in Namibia 2008–12 (APEC 2008–12), submitted with the Government’s report, that neither the Combating of Immoral Practices Act 1980, nor its amendment, specifically address the prostitution of children (page 23). However, the Committee notes the information in the APEC 2008–12 that a draft of the Child Care and Protection Bill contains provisions stating that any person who allows, causes or conduces to the seduction or prostitution of a child or allows a child to enter into the employment of any prostitute or procurer of prostitutes commits an offence.

The Committee notes that the Trafficking Rapid Assessment indicates that both boys and girls are victims of child commercial sexual exploitation in Namibia (page 63). Therefore, the Committee urges the Government to take the necessary measures to ensure that the forthcoming draft Child Care and Protection Bill contains provisions prohibiting the use, procuring and offering of both boys and girls under the age of 18 for the purpose of prostitution.

2. Use, procuring or offering of a child for the production of pornography or for pornographic performances. The Committee previously noted that section 14 of the Combating of Immoral Practices Act 1980, as amended in 2000, states that any person who commits or attempts to commit an “indecent or immoral act” with a child under 16 years, or solicits or entices such a child to the commission of such an act, and who is: (i) more than three years older than such child; and (ii) not married to such a child, shall be guilty of an offence. The Committee reminded the Government that the prohibition contained in Article 3(b) of the Convention applies to any child under the age of 18 years irrespective of the age of the offender, and requested the Government to take measures to bring national legislation into conformity with the Convention.

The Committee notes an absence of information in the Government’s report on this point. However, the Committee notes the statement in the APEC 2008–12 that legislation on pornography in Namibia is long overdue (page 24). The Committee reminds the Government that pursuant to Article 3(b) of the Convention, the use, procuring or offering of a child under 18 years of age for the production of pornography or for pornographic performances is considered one of the worst forms of child labour and that, under Article 1 of the Convention, each Member which ratifies it must take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. It therefore requests the Government to take the necessary measures to prohibit the use, procuring or offering of a child under 18 years for the production of pornography or for pornographic performances, irrespective of the age of the offender.

Clause (c). Use, procuring or offering of a child for illicit activities. In its previous comments, the Committee noted  that the relevant legislation did not appear to prohibit the use, procuring or offering of a child for illicit activities. The Committee notes the Government’s statement that the Combating the Abuse of Drugs Bill was recently introduced in the National Assembly. The Government states that this Act bans the consumption, trafficking, sale and possession of dangerous, undesirable and dependency-producing substances. The Committee observes that the information in the Government’s report does not indicate if the Combating the Abuse of Drugs Bill contains provisions with regard to the use, procuring or offering of children for these activities.

The Committee notes that the rapid assessment study “Children used by adults to commit crime (CUBAC) in Namibia” (CUBAC Study), issued by the ILO in 2007, indicates that the involvement of children in the sale and trafficking of drugs appears to be low (page 68). Nonetheless, the Committee notes that the CUBAC Study concluded that approximately one third of children involved in crimes are victims of CUBAC (page 76). The Committee once again recalls that, by virtue of Article 3(c) of the Convention, the use of children by adults to commit crimes is considered to be one of the worst forms of child labour and is therefore prohibited for children under 18 years of age. It once again requests the Government to take the necessary measures to prohibit the use, procuring or offering of a child under 18 years for illicit activities, in particular for the production and trafficking of drugs.

Article 5. Monitoring mechanisms. Labour inspectorate. The Committee previously noted that the Ministry of Labour and Social Welfare (MoLSW), which is responsible for monitoring the implementation of the national legislation giving effect to the Convention, has a system of labour and safety inspections decentralized throughout the country. Inspectors carry out routine and follow-up inspections to ensure the implementation of the Labour Act. It requested the Government to provide information on the inspections carried out by the Labour Inspectorate regarding infringements of the national provisions giving effect to the Convention.

The Committee notes the information in the Government’s report that, within the framework of the project “Towards the Elimination of the Worst Forms of Child Labour Phase II”, labour inspectors will receive training in December 2009, with a manual (which was developed in Malawi) for law enforcement and child labour. The Committee also notes the information in a report on the worst forms of child labour in Namibia, available from the web site of the Office of the UN High Commissioner for Refugees (www.unhcr.org), that while the Labour Inspectorate does not have inspectors focused exclusively on child services, the inspectors are trained in identifying the worst forms of child labour. This report indicates that three investigations occurred in 2008 that involved children in the worst forms of child labour. The Committee once again requests the Government to provide information on the inspections carried out by the Labour Inspectorate regarding infringements of the national provisions giving effect to the Convention and to supply reports or documents drafted by the Labour Inspectorate regarding the worst forms of child labour.

Article 6. Programmes of action to eliminate the worst forms of child labour. The Committee previously noted that the ILO–IPEC programme Towards the Elimination of the Worst Forms of Child Labour (TECL) was launched in Namibia in 2004 and is implemented through the MoLSW. The Committee requested the Government to continue providing information on the implementation of the TECL.

The Committee notes the information in the ILO–IPEC Technical Progress Report on the project “TECL Phase II: Supporting and monitoring the implementation of National Plans of Action in the three core countries in Southern Africa” (TECL II), issued on 31 August 2009, that the TECL II commenced in Namibia in June 2009, and is expected to continue until March 2012. The Committee notes the Government’s statement that the TECL II will endeavour to implement selected strategies from the APEC 2008–12, which was developed under TECL. The Committee notes the information in the Government’s report that since April 2009, several activities have been undertaken in this regard, including:

–      the re-establishment of the Project Advisory Committee on Child Labour (PACC), which is responsible for overseeing the implementation of the project, and capacity-building training for PACC members;

–      assistance was given to the Ministry of Education in the development of its action plan on child labour based on action steps identified in APEC 2008‑12;

–      a presentation on child labour was given to the National Council Meeting for the Namibia National Farmers’ Union and a workshop was held to give assistance in its action plan and policy on child labour;

–      a review of national legislation on child labour was commissioned, and will be finalized by December 2009; and

–      an external collaborator was identified for the development of a hazardous child labour list and work will soon begin in this regard.

The Committee also notes the Government’s statement that activities planned for 2010 include further awareness-raising workshops, assisting ministries in the development of action plans and workplans to implement the APEC 2008–12, and the actual implementation of the action steps within this programme. The Committee requests the Government to continue providing information on the implementation of the TECL II and the APEC 2008–12, and the results obtained with regard to eliminating the worst forms of child labour.

Article 7, paragraph 1. Sanctions. The Committee previously noted the information in the Government’s report that, by virtue of section 3(6) of the Labour Act of 2004, any person who is convicted of employing a child in any work prohibited under section 3 of the Labour Act, including hazardous work, is liable to a fine not exceeding 4,000 Namibian dollars (NAD) (approximately US$600) or to imprisonment for a period not exceeding 12 months, or to both. The Committee noted the Government’s indication that forthcoming amendments to the Labour Act would increase these penalties and requested a copy of this legislation, once adopted. The Committee notes with interest that section 3(5) of the Labour Act, as amended in 2007, states that it is an offence for any person to employ, or require or permit, a child to work in any circumstances prohibited under section 3, and that a person who is convicted of this offence is liable to a fine not exceeding NAD20,000 (approximately US$2,713) or to imprisonment for a period not exceeding four years, or to both.

Article 7, paragraph 2. Time-bound measures. Clause (a).  Preventing the engagement of children in the worst forms of child labour. Education. In its previous comments, the Committee noted that article 20 of the Constitution and section 53 of the Education Act, 2001, state that school attendance is free and compulsory for every child from the year in which the child turns 7 until the year in which the child has either completed primary education, or attained the age of 16. It also noted that section 38 of the Education Act states that all tuition provided for primary and special education in state schools must be provided free of charge, although parents of students are required to pay other fees to the school development fund. The school board may exempt any parent from this payment. The Committee further noted that the Government adopted the “Education for All (EFA) National Plan 2001–15”, which included the objectives of eliminating gender disparities in primary and secondary education, ensuring that all children, particularly girls, children in vulnerable situations and ethnic minorities had access to education, and providing better childhood care and education to the most vulnerable and disadvantaged children. In addition, the Committee noted that the National Policy on Orphans and Vulnerable Children of 2004 (NP/OVC) outlined the importance of keeping orphans and other vulnerable children in school as being central to strengthening their capacity to meet their own needs. This policy commits the Government to ensuring that all relevant parties are informed about the allowable exemptions from payments to the school development fund for children who are unable to pay, and that no student shall be excluded from school due to the inability to pay.

The Committee notes the information in the APEC 2008–12, that the Ministry of Education (MoE) will lead several action steps within the framework of this project. The MoE action steps include measures for the inclusion of information on international conventions relevant to child labour and vulnerable children in the school curriculum. The MoE will also take measures to prevent principals from expelling children from school who are found to be commercial sex workers and explore funding sources to develop and expand programmes to ensure all children are in school and not the victims of the worst forms of child labour. The APEC 2008–12 also includes several measures to promote and monitor school attendance, and will involve an awareness campaign through various media outlets and a web site on the link between child labour and keeping children in school. The Committee also notes that the APEC 2008–12 includes several measures to ensure that children from poor families and OVCs can attend school, including the expansion of the school-feeding programme, and the streamlining and the promotion of the system of exemption from payments to the school development fund (pages 103–107).

Recalling that education is one of the most effective means of combating the worst forms of child labour, the Committee requests the Government to pursue its efforts, within the APEC 2008–12 and the EFA National Plan, to facilitate access to education to girls, children from disadvantaged families and other vulnerable groups. The Committee requests the Government to provide information on the concrete measures taken in this regard, and their impact on increasing school attendance rates and reducing drop-outs rates. The Committee also requests the Government to supply data on the enrolment and drop-out rates in school.

Clause (d). Identifying and reaching out to children at special risk. Child victims/orphans of HIV/AIDS. The Committee previously noted that the NP/OVC states the Government’s commitment to minimize the impact of HIV/AIDS on orphans and other vulnerable children in Namibia. The NP/OVC also recognized the Government’s responsibility for the protection and provision of essential services to OVCs including measures to ensure that: the necessary policy and legal framework for the protection of children is in place; adequate resources for agencies tasked with child protection are provided; OVCs have efficient and speedy access to financial assistance, education, health and other essential services; and that an appropriate system to identify vulnerable children is set up. The Committee also noted that an autonomous trust fund to supplement state grants made available to OVCs and their caregivers was established.

The Committee notes the information in the Government’s report that, at the conclusion of the Reducing Exploitative Child Labour in Southern Africa (RECLISA) Project, 50 child labour committee members and 60 teachers received training and that more than 1,800 OVCs were retained in school. The Committee also notes the statement in the APEC 2008–12 that HIV/AIDS is a major influence of child labour, and that children are withdrawn from school to care for ill family members or their siblings, to help with household chores their parents cannot perform, or to work to supplement family income, including commercial sex work (page 37). The Committee further notes the information in the Government’s report that the terms of reference for a situational analysis on the impact of HIV/AIDS on child labour has been commissioned within the framework of APEC 2008–12. Lastly, the Committee notes that the APEC
2008–12 includes an action step to link issues of child labour into national programmes on HIV/AIDS. This includes measures to reduce the vulnerability of children in AIDS-affected families to child labour, ensuring that such children remain in school, and to include child labour issues into HIV/AIDS awareness-raising activities (particularly with regard to the commercial sexual exploitation of children) (page 39). The Committee requests the Government to pursue its efforts to take specific effective and time-bound measures in the context of the implementation of the National Policy for Orphans and Vulnerable Children and the APEC 2008–12 to prevent children affected by HIV/AIDS from being engaged in the worst forms of child labour, and to provide information on measures taken in this regard. It also requests the Government to provide a copy of the study on HIV/AIDS and child labour, commissioned within the framework of the APEC 2008–12, when it is completed.

Part V of the report form. Application of the Convention in practice. The Committee previously noted that, as a follow-up to the 1999 Child Activity Survey, the MoLSW conducted a child activity survey in 2005. It also noted the Government’s statement that under the TECL programme, qualitative research was conducted on the worst forms of child labour in Namibia, especially focusing on: children used by adults to commit crimes; children trafficked for labour or sexual exploitation; children working as prostitutes; children working in domestic work and agriculture and in the production of charcoal. The Committee requested a copy of these studies, once completed.

The Committee notes the information in the Namibia Child Activities Survey 2005, issued by the MoLSW in December 2008 that, of all 408,638 working children surveyed, approximately 20,000 children were engaged in some form of hazardous work, measured by the incurring injuries while doing work, or developing a work-related illness. The survey indicated that approximately 6.5 per cent of all children in Namibia, between the ages of 16 and 17 were engaged in hazardous child labour.

The Committee notes that the Trafficking Rapid Assessment uncovered nine children engaged in commercial sex work, mostly girls, between the ages of 13 and 17. The Committee notes that some of these children started commercial sex work as young as 12 years of age. The major cause of this phenomenon was poverty, with some children working to raise money for school fees (page 90). The Trafficking Rapid Assessment stated that, as it was a qualitative study, it was difficult to determine the extent of commercial sexual exploitation of children, although interviews with street children in Windhoek indicated that, among street children in that city, child commercial sexual exploitation was widespread (page 69). The Trafficking Rapid Assessment also stated that more cases of child commercial sex work were identified than previously expected, and that children were sometimes paid in kind rather than cash (page 90).

The Committee requests the Government to strengthen its efforts, within the framework of the TECL II and the APEC 2008–12, to ensure in practice the protection of all persons under the age of 18 from the worst forms of child labour, particularly trafficking for the purpose of labour and sexual exploitation, commercial sexual exploitation and hazardous work. The Committee also requests the Government to continue to provide statistics and information on the nature, extent and trends of the worst forms of child labour, the number and nature of infringements, investigations, prosecutions and convictions.