Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Articles 1(1) and 2(1) of the Convention. Freedom of public servants to leave their service. In its previous comments, the Committee referred to the provisions of section 24 of the Public Service Act, 1995, concerning retirement and discharge of staff members, under which staff members of the public service may be discharged from the service for various specified reasons. The Committee takes due note of the Government’s statement in the report that the Labour Act of 2007 takes precedence over all labour legislation and applies to all employers and employees, with the exception of members of the defence force and certain public services listed in section 2(2). It notes, in particular, that the provisions of the Labour Act prevail in case of a conflict between the Act and “any law on the employment of persons in the service of the State” (section 2(4) and (5)(c) of the Labour Act). The Committee further notes that section 30 of the Labour Act provides for a possibility to terminate employment with notice.

However, the Committee previously noted the Government’s statement that the Public Service Act needed to be reviewed in order to bring it into line with the Labour Act. The Committee requests the Government to indicate, in its next report, whether the Public Service Act will be amended and, if so, to provide information on the measures taken to this end.

Article 2(2)(a). Compulsory military service. The Committee notes the Government’s statement in the report that Namibia does not have conscription or compulsory military service.

Article 2(2)(b) and (e). Normal civic obligations. The Committee previously noted that, under article 9(3)(e) of the Namibian Constitution, the expression “forced labour” does not include any labour reasonably required as part of reasonable and normal communal or other civic obligations. While duly noting the Government’s statement in the report that the above constitutional provision has never been applied in practice, the Committee requests the Government to provide, in its future reports, information on the effect given to this provision, once such information becomes available.

Article 2(2)(c). 1. Conviction in a court of law. The Committee previously noted that, under article 9(3)(a) of the Namibian Constitution, the expression “forced labour” does not include any labour required in consequence of a sentence or order of a court. It asked the Government to clarify the meaning and the scope of an “order of a court” (as opposed to a sentence in criminal proceedings), under which the exaction of forced labour may be required. While noting the Government’s indication that there has been no order of a court to exact forced labour, the Committee requests the Government to provide, in its future reports, information on such court orders, if and when such information becomes available, supplying sample copies of relevant orders.

2. Work of prisoners for private enterprises. The Committee previously noted that, under section 83(1) of the Prisons Act, 1998, the Commissioner may enter into a contract with any institution, person or body of persons for the employment of the labour or services of prisoners who are under a sentence of imprisonment, upon the terms and conditions which may be agreed between the parties. Under section 81 of the Act, prison labour is compulsory for prisoners.

The Committee recalls that Article 2(2)(c) of the Convention expressly prohibits that convicts are hired to or placed at the disposal of private individuals, companies or associations. However, the Committee has considered, as explained in paragraphs 59–60 of its General Survey of 2007 on the eradication of forced labour, that work for private enterprises can be compatible with Article 2(2)(c) if prisoners voluntarily enter a normal employment relationship with private employers and perform work in conditions approximating a free employment relationship. If these requirements are fulfilled, the work of prisoners for private companies does not come under the scope of the Convention, since no compulsion is involved.

The Committee previously noted the Government’s indication that, in practice, prisoners volunteered for performing work and the opportunity to perform work was conditional on their good behaviour. Since the Government’s latest report contains no new information on this issue, the Committee reiterates its hope that the necessary measures will be taken to ensure that free and informed consent is required for the work of prisoners for private enterprises both inside and outside prison premises, so that such consent is free from the menace of any penalty and authenticated by the conditions of work approximating a free labour relationship. Please also supply sample copies of contracts concluded by the Commissioner with private enterprises for the employment of the labour or services of prisoners, as well as copies of any rules or regulations governing their conditions of work.

Article 25. Penalties for the illegal exaction of forced or compulsory labour. The Committee notes that, under section 4(3) of the Labour Act, 2007, the illegal exaction of forced labour is punishable with the penalties of imprisonment for a term of up to four years and heavy fines. Noting also the Government’s indication in its report that no legal proceedings have been instituted in terms of forced labour, the Committee hopes that the Government will provide information on the application of section 4(3) in practice, once such information becomes available, supplying sample copies of the relevant court decisions and indicating the penalties imposed.