Solicitud directa (CEACR) - Adopción: 2001, Publicación: 90ª reunión CIT (2002)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

        The Committee notes the Government’s first two reports on the application of the Convention and expresses the hope that in its next report it will supply detailed information on the following points.

        1. Article 1 of the Convention. The Committee notes with interest that the Constitution of Lesotho enshrines the principle of non-discrimination in general (articles 4 and 18), while section 5 of the Labour Code reproduces almost word for word Article 1 of the Convention and thus guarantees equality of opportunity and treatment in employment and occupation. It notes, however, that article 18, 4(b) and 4(c), of the Constitution stipulates that in certain matters, particularly in marriage, divorce, devolution of property or those matters which fall within the scope of customary law, it is possible to derogate from the application of the principle of equality of opportunity and treatment laid down in paragraph 1 of article 18. The Committee deems it cause for concern that the abovementioned provisions authorize the application of legislative texts and laws, including customary law, which are discriminatory and therefore incompatible with the present Convention to the extent that they have an impact on employment and occupation. It notes, for example, that in customary law and in common law women are considered to be minors and cannot therefore conclude a contract, open a bank account, obtain a loan or apply for a passport without their husband’s consent. The Committee would therefore be grateful if the Government would indicate whether customary law on these matters has been codified and, if so, to provide it with a copy of the relevant provisions. It requests the Government to indicate the relationship between customary law and common law in practice and in what manner it ensures that application of customary law does not hinder the implementation of the principle of equality of opportunity and treatment in regard to the employment and occupation of women, but also in regard to any person because of their race, colour, religion, political opinion, national extraction or social origin.

        2. The Committee wishes to obtain information on the participation of the various components of the working population, both quantitatively and qualitatively, and in particular the most vulnerable social groups. In this regard, the Committee would be grateful if the Government would indicate whether the data collected by virtue of section 17 of the Labour Code is disaggregated by sex, in which case it requests the Government to send it a copy of the statistics enabling it to ascertain the distribution between men and women - horizontally as well as vertically - in the various categories of employment and sectors of activity.

        3. Discrimination on the basis of political opinion. The Committee notes that section 13(a) of the Public Service Act, 1995, requires absolute and undivided loyalty on the part of public officers in regard to the Constitution and the Government. It also notes that section 14(1)(k), of the Act restricts considerably the right of public officers to express or demonstrate their political opinions. It therefore requests the Government to supply information on the manner in which this provision is applied in practice.

        4. Discrimination on the basis of colour, race or national extraction. The Committee notes the Government’s statements to the United Nations Committee (CERD/C/337/Add.1, paragraph 16) affirming the existence on its territory of a small minority of Basothos of Indian origin as well as the observations of the Committee (CERD/C/56/Misc.39/Rev.3, paragraph 5) to the effect that there is tension between Lesotho nationals and certain factory owners of Asian and South African origin. The Committee would be grateful if the Government would supply information on measures taken to calm relations between these communities and promote equality in employment. The Committee would be grateful if the Government would supply information on the ethnic composition of the population of Lesotho.

        5. Article 2. The Committee notes the Government’s statement to the effect that this Article is fully applied in that the Constitution (article 18), forbids discrimination on all the seven grounds listed in the Convention, affirms the principle of equality before the law (article 19) and provides the possibility that victims of discrimination may apply to the High Court for relief (article 22). Although affirmation of the principle of equality, incorporation of the Convention in the national legal order and the absence of laws or administrative measures expressly instituting inequality constitute an essential feature of the national policy laid down in Article 2 of the Convention, they do not however suffice to satisfy the obligations of the Convention, which is aimed at the effective elimination of all discrimination. The Committee is of the view that, although the legal context is important, it does not in itself suffice to dispel discrimination in fact as certain forms of discrimination stem from behaviour, attitudes or the display of prejudice which can be eliminated only by the adoption of positive measures. The Committee recalls that under article 26 of the Constitution of Lesotho the Government is required to adopt policies aimed at promoting a society based on equality and justice for all its citizens regardless of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and that article 30 of the Constitution provides for the adoption of policies aimed at securing just and favourable conditions of work and, in particular, policies directed to achieving equal opportunities for men and women in regard to employment. The Committee therefore requests the Government to indicate in what manner it envisages implementing the abovementioned constitutional provisions, in legislation as well as in practice.

        6. The Committee notes that in 1993 the Government instituted a Law Reform Commission with the mandate of examining the laws not compatible with the new Constitution, proposing the repeal of archaic laws and reformulating laws. It notes that the Human Rights Service of the Ministry of Justice also has the mandate of ensuring that national legislation is compatible with international instruments relating to human rights. It also notes the establishment of an Ombudsman’s Office in 1996 which may be advised of violations of fundamental rights guaranteed under the Constitution. In this regard, the Committee emphasizes the lack of provisions expressly prohibiting discrimination on the basis of the seven criteria set out in the Convention and recalling the sanctions incurred in the event of violation of this principle in the Public Service Act of 1995 (particularly in the section relating to recruitment and promotion) or in the 1984 Act on Technical and Vocational Training (particularly in regard to guidance and access to certain occupations). The Committee therefore requests the Government to supply information on the activities of these various bodies, where they are linked to the promotion and application of equality of opportunity and treatment and to indicate whether the National Human Rights Commission, charged with investigating any violation of human rights, has finally been established.

        7. Article 3. The Committee notes the statement in the Government’s report that there is no discrimination in Lesotho within the meaning of the Convention, hence there is no need to adopt laws or education programmes to encourage acceptance and application of the national policy of equality of opportunity and treatment in employment. The Committee recalls that the promotion of equality of occupation and treatment does not apply to a static situation which can be addressed in a definitive manner, but to an ongoing process during which the national policy of equality must adjust to the changes it makes in society to succeed in eliminating the many distinctions, exclusions or preferences based on the criteria set forth in the Convention. The Committee therefore invites the Government to implement actively the measures set out in Article 3(a), (b), (c), (d) and (e) of the Convention, particularly in regard to education and raising of public awareness to the occurrence of discrimination in employment based on unlawful grounds.

        8. The Committee requests the Government to supply information on its methods of cooperation with employers’ and workers’ organizations with a view to encouraging the acceptance and application of this Convention. It also requests copies of some of the collective agreements in force in the public and private sectors.

        9. Article 4. The Committee notes the Government’s statement to the effect that there are no legislative or administrative measures governing the employment or occupation of persons suspected of, or engaged in, activities prejudicial to the security of the State. It nevertheless requests the Government to indicate what recourse is open to these persons and whether complaints of this nature have already been examined.

        10. The Committee wishes to know whether there are occupations - in the public service and the private sector - which are not accessible to women (other than underground work). If so, it requests the Government to provide it with a detailed list.