Solicitud directa (CEACR) - Adopción: 2004, Publicación: 93ª reunión CIT (2005)

The Committee notes the Government’s first and second reports. The Committee requests the Government to provide information on the following points.

Article 1 of the Convention. Measures taken to secure the prohibition and elimination of the worst forms of child labour. The Committee notes the information provided by the Government to the effect that a Memorandum of Understanding (MOU) was signed in February 1999 between ILO/IPEC and the Government and was officially launched in October 1999. The Committee requests the Government to continue providing information on the measures adopted and to indicate the impact of these measures on the prohibition and elimination of the worst forms of child labour.

Article 3. The worst forms of child labour. Clause (a). All forms of slavery or practices similar to slavery. 1. Forced or compulsory labour. The Committee notes that article 2 of the Constitution provides that slavery, slavery-like practices (...) and all forms of degradation of human beings are prohibited and punished by the law. It also notes that, under section 2 of the Labour Code, forced or compulsory labour is subject to an absolute prohibition and that the term "forced labour" means any work or service exacted from a person under the menace of any penalty and for which that person has not offered her or himself voluntarily. The Committee notes that section 2 provides for several exceptions under which work or services could be required, but specifies that in any case they may only be required from able-bodied adults whose age is not presumed to be lower than 18 years.

2. Forced or compulsory recruitment of children for use in armed conflict. The Committee notes that, under the terms of article 10 of the Constitution, all citizens have the duty to contribute to the defence and maintenance of the integrity of the territory. They are under the obligation to perform national service when it is required. The Committee requests the Government to provide information on the age of recruitment into the armed forces and to provide copies of the relevant provisions.

Clause (b). 1. The use, procuring or offering of a child for prostitution. The Committee notes that section 422 of the Penal Code provides for the punishment of any person who habitually incites young persons of between 13 and 18 years of age of either sex, or even occasionally young persons under 13 years of age, to engage in debauchery or facilitates their corruption. Section 424 provides that any person is considered to be a procurer who knowingly aids, abets or protects the prostitution of another person or soliciting with a view to prostitution; procures, removes or maintains, even with consent, any person with a view to prostitution or engages that person in prostitution or debauchery; acts as an intermediary in any manner whatsoever between persons engaged in prostitution or debauchery and individuals who exploit or remunerate the prostitution or debauchery of others.

2. The use, procuring or offering of a child for the production of pornography or for pornographic performances. The Committee notes that the Government’s report does not contain any information on this subject. However, it notes that section 12 of Order No. 539/ITLS/HV, of 29 July 1954, respecting child labour, provides that it is prohibited to employ young persons in the production, handling or sale of written or printed texts, posters, drawings, engravings, paintings, signs, images or other objects the sale, offering, exhibition, posting or distribution of which are such as to be harmful to their morals or exert an unwanted influence upon them. Section 13 of the Order prohibits the employment of young persons in any type of work in premises in which the types of work enumerated in section 12 are carried on. However, the Committee reminds the Government that Article 3(b) of the Convention considers the use, procuring or offering of a child for the production of pornography or for pornographic performances as one of the worst forms of child labour. It would appear that no provision in the legislation prohibits this worst form of child labour. In this regard, the Committee draws the Government’s attention to Article 1 of the Convention which requires that immediate measures be taken to prohibit the worst forms of child labour. The Committee therefore requests the Government to indicate the measures adopted to secure the prohibition of this worst form of child labour in respect of all persons under 18 years of age.

Clause (c). The use, procuring or offering of a child for illicit activities. 1. The production and trafficking of drugs. The Committee notes that the Government’s report does not contain any information on this subject. However, it notes that section 439 of the Penal Code prohibits the production, manufacture, transport, import, export, possession, offering, cession, acquisition and use of drugs, and that sections 441, 442, 444, 445 and 446 of the Penal Code provide that those committing such offences shall be penalized. Nevertheless, the Committee notes that it would appear that no provision prohibits the use, procuring or offering of a young person under 18 years of age for illicit activities, in particular for the production and trafficking of drugs. It therefore requests the Government to indicate whether such a prohibition exists, in accordance with Article 3(c) of the Convention. If not, it requests the Government to indicate the measures adopted or envisaged to prohibit this worst form of child labour in respect of all persons under 18 years of age. In this regard, the Committee draws the Government’s attention to Article 1 which requires that immediate measures be taken to prohibit the worst forms of child labour.

2. Begging. The Committee further notes that section 244 of the Labour Code penalizes persons who employ or encourage other persons to beg, and that section 245 of the Labour Code provides for augmented penalties for any person who, while exercising authority over the young person, exposes said person to delinquency or transfers her or him to individuals who encourage or employ said person in begging.

Clause (d). Hazardous work. The Committee notes that section 87 of the Labour Code provides that a decree issued by the Council of Ministers, following an opinion by the Advisory Labour Commission, shall determine the nature of the work and the categories of enterprises that are prohibited for young persons and the age up to which this prohibition applies. It also notes that section 1 of Order No. 539/ITLS/HV, of 29 July 1954, respecting child labour provides that in establishments of any nature whatsoever, whether they be agricultural, commercial or industrial, public or private, lay or religious, even where such establishments are engaged in vocational teaching or welfare, including family enterprises or in private homes, it shall be prohibited to employ young persons of either sex who are aged under 18 years of age on work which is in excess of their strength, gives rise to risks of danger or which, by its nature or the circumstances in which it is carried out, is likely to harm their morals. It also notes that section 88 of the Labour Code provides that the labour inspector may require young persons to be examined by an approved doctor, with a view to ascertaining whether the work with which they are entrusted is not in excess of their strength. Such an examination shall be compulsory at the request of the persons concerned. Section 88(2) provides that a young person may not be maintained in a job recognized as being beyond the young person’s strength.

Self-employed workers. The Committee notes that, under the terms of section 1, the Labour Code applies to workers and employers exercising their occupational activity in Burkina Faso, and that section 1(2) of the Labour Code defines a worker as any person who has undertaken to place their occupational activity, in exchange for remuneration, under the direction and authority of an individual or association, whether public or private, known as the employer. The Committee notes that, under the terms of these provisions, the Labour Code does not apply to work by children on their own account. It therefore requests the Government to indicate the measures adopted or envisaged to ensure the protection of children engaged in non-wage economic activities, such as children working on their own account, against being engaged in types of work which, by their nature or the circumstances in which they are carried out, are likely to harm their health, safety or morals.

Article 4, paragraph 1. Determination of types of hazardous work. The Committee notes the information provided by the Government that Order No. 539/ITLS/HV, of 29 July 1954, respecting child labour, determines in Title II the types of work that are hazardous for their morals, which exceed their strength and which are dangerous and are therefore prohibited for young persons. It notes that this text contains a Schedule A, listing types of work that are prohibited for young persons under 18 years of age. The schedule prohibits, among others, work involving the handling of electrical accumulators, fertilizers, explosives and the sharpening and polishing of metals. The Committee notes the Government’s indication in the report provided in 2001 under article 22 of the Constitution of the ILO on the Minimum Age Convention, 1973 (No. 138), that Order No. 539 of 29 January 1954 would be revised to take into account the requirements of the Convention. The Committee accordingly draws the Government’s attention to Article 4, paragraph 1, of Convention No. 182, which provides that the types of work referred to under Article 3(d) must be determined by national laws or regulations or by the competent authority, after consultation with the organizations of employers and workers concerned, taking into consideration relevant international standards, in particular Paragraph 3 of the Worst Forms of Child Labour Recommendation, 1999 (No. 190). Paragraph 3 of the Recommendation indicates that, in determining the types of work referred to under Article 3(d) of the Convention, and in identifying where they exist, consideration should be given, inter alia, to: (a) work which exposes children to physical, psychological or sexual abuse; (b) work underground, underwater, at dangerous heights or in confined spaces; (c) work with dangerous machinery, equipment and tools, or which involves the manual handling or transport of heavy loads; (d) work in an unhealthy environment which may, for example, expose children to hazardous substances, agents or processes, or to temperatures, noise levels, or vibrations damaging to their health; and (e) work under particularly difficult conditions, such as work for long hours or during the night, or work where the child is unreasonably confined to the premises of the employer. The Committee hopes that a new list of types of hazardous work will be adopted rapidly and requests the Government to provide a copy once it has been adopted, after consultation with the organizations of employers and workers concerned, in accordance with Articles 3(d) and 4, paragraph 1, of the Convention. When determining the types of hazardous work, the Committee hopes that the Government will take into consideration the types of work enumerated in Paragraph 3 of Recommendation No. 190.

Article 4, paragraph 2. Identification of where types of hazardous work exist. The Committee notes that, according to the information available to the Office, a national workshop was organized on 26 and 27 August 2004 by the Ministry of Labour, Employment and Youth with a view to identifying the worst forms of child labour. The Committee requests the Government to provide information on the conclusions of the workshop.

Article 6. Programmes of action to eliminate the worst forms of child labour. The Committee notes that, according to the information provided by the Government, a National Programme to Combat Child Labour was launched in October 1999 in cooperation with ILO/IPEC. This programme forms part of a progressive strategy to achieve tangible results in the short and medium term. The Committee notes that this approach is intended, among other objectives, to abolish child labour in the most hazardous activities and to provide children with viable alternatives, and to raise the awareness of key actors while reinforcing their capacities for intervention. It also notes that the National Programme to Combat Child Labour has organized three training seminars and implemented 13 programmes of action. The three training seminars include the training of trade union representatives, employers and the State, and labour inspectors and controllers. The programmes of action include the following: improvement of the living and working conditions of children working in two gold-bearing sites in the Sahel in Burkina Faso; support and assistance to child workers in high-risk trades in the informal economy in Ouagadougou; combating child labour in the rural areas of Karséguéra through prevention, non-formal education and vocational training; and support for the removal of 150 children working in the quarry in Pissy (Province of Kadiogo).

Article 7, paragraph 1. Penalties. The Committee notes that section 238 of the Labour Code establishes a fine of between 50,000 and 300,000 CFA francs and a sentence of imprisonment of between one month and three years, or only one of these two penalties, and, in the case of repeat offences, a fine of between 300,000 and 600,000 CFA francs and a sentence of imprisonment of from two months to five years, or only one of these two penalties, for those guilty of infringements of the provisions of section 2 of the Labour Code, which prohibits forced labour. It further notes that section 244 of the Penal Code establishes a sentence of imprisonment of from three months to one year for any person who incites or employs other persons in begging. Section 245 of the Penal Code establishes a penalty of imprisonment of between six months and two years for any person who, exercising authority over a young person, exposes said person to delinquency or hands her or him over to individuals who incite or employ her or him in begging. The Committee also notes that section 422 of the Penal Code provides that any person whatsoever who habitually incites young persons between 13 and 18 years of age of either sex, or even occasionally young persons under 13 years of age, to engage in debauchery or facilitates their corruption, shall be penalized by a sentence of imprisonment of from two to five years and a fine of from 600,000 to 1,500,000 CFA francs. It further notes that, under section 237 of the Labour Code, any person found guilty of violations of Order No. 539 respecting hazardous types of work prohibited for young persons under 18 years of age shall be liable to a fine of between 5,000 and 50,000 CFA francs and a sentence of imprisonment of between three and 15 days, or to one of these penalties only, and, in the case of repeat offences, to a fine of between 50,000 and 100,000 CFA francs and a sentence of imprisonment of between two weeks and one month, or to one of these penalties only. The Committee requests the Government to provide information on the application of these penalties in practice.

Article 7, paragraph 2. Effective and time-bound measures. Clause (a). Preventing the engagement of children in the worst forms of child labour. The Committee notes that article 18 of the Constitution provides that education, instruction, training (...) constitute social and cultural rights recognized by the present Constitution which is intended to promote them. Article 27 of the Constitution provides that all citizens have the right to instruction. It also notes the adoption of Framework Education Act No. 13/96/ADP of 19 May 1996. This fundamental Act sets out the major orientations relating to school and vocational training and determines the structure of the education system and the various levels of teaching. The Committee further notes that the Ten-Year Plan for the Development of Basic Education (2001-10) provides for an increase in the rate of primary school enrolment from 41 per cent in 2000 to 70 per cent in 2010 and that, at the same time, the Government envisages increasing the proportion of the budget devoted to education from 21.6 per cent in 2000 to 26 per cent in 2010, with 60 per cent of this amount being allocated to primary education. It notes that the gross school enrolment rate was 47.50 per cent in 2002-03. The Committee further notes that the Committee on the Rights of the Child, in its concluding observations in October 2002 (CRC/C/15/Add.193, paragraph 50), noted with appreciation the increase of budget allocations for education and the focus placed on education in the Poverty Reduction Strategy Paper and the creation of "satellite schools". However, the Committee on the Rights of the Child expressed deep concern at the high illiteracy rate, particularly among women, the lack of pre-school education, the still low enrolment in primary and secondary education, the very high percentage of drop-outs in primary education, the low quality of education, the high teacher-pupil ratio, the very low percentage of children who complete primary education and the important regional disparities. The Committee of Experts notes that the Committee on the Rights of the Child expressed concern that primary education is not totally free and that parents still have to pay for school supplies. It notes the information provided by the Government in its report to the Committee on the Rights of the Child in 2002, according to which the extension up to 16 of the age of completion of compulsory schooling by the Framework Education Act has not in practice appeared to have a real impact on the promotion of the educational system, from which 60 per cent of children of school age are excluded for various reasons, including poverty, the precarious living conditions of their parents, the inadequacy of infrastructure and school buildings. The Committee notes that the Government deplores the fact that certain children who have access to school are sent home, among other reasons for the non-payment of school fees, despite the prohibition in law of the exclusion of children before the age of 16 years. It also notes, according to the national report on the development of education (page 12, paragraph 1.2.2), that provinces with a low rate of school enrolment benefit from investment programmes with a view to improving their gross school enrolment rate. Considering that education contributes to the elimination of the worst forms of child labour, the Committee hopes that the Government will pursue its efforts to improve the educational system. It requests the Government to provide information on the effective and time-bound measures taken in this regard to prevent the engagement of children in the worst forms of child labour.

Clause (d). Identifying and reaching out to children at special risk. 1. HIV/AIDS. The Committee observes that HIV/AIDS has consequences for orphans who are at greater risk of being engaged in the worst forms of child labour. It notes, according to the information provided by the Government in its report submitted to the Committee on the Rights of the Child in 2002 (CRC/C/65/Add.18, paragraph 290), that the HIV/AIDS rate was estimated at 7 per cent in 1999, making Burkina Faso one of the three worst affected countries in West Africa. It further notes that the average annual progression of the rate of infection was 139 per cent a year between 1986 and 1997. It notes that a National Anti-AIDS Committee has been established focusing, among other objectives, on orphans. The Committee requests the Government to provide information on the impact of this programme and of other effective and time-bound measures adopted to improve the situation of these children.

2. Street children. The Committee notes, according to the information provided by the Government in its written replies to the Committee on the Rights of the Child in 2002 (CRC/C/RESP/18, page 28), that 24 per cent of street children are between 7 and 12 years of age and that 62 per cent of them are between 13 and 18 years, distributed approximately evenly between girls and boys, and that 43 per cent of street children beg. It also notes the pilot project established with UNICEF and NGOs to combat the problem of street children. It further notes that the Committee on the Rights of the Child, in its concluding observations in October 2002, expressed concern at the increasing number of children living in the streets and the absence of a global and systematic strategy to address this situation and provide these children with the necessary assistance. The Committee requests the Government to provide information on the effective and time-bound measures adopted to reach out to these children and the impact of these measures.

Clause (e). Taking account of the special situation of girls. The Committee notes certain programmes of action carried out in the context of the National Programme to Combat Child Labour, such as the programme of "support and assistance for young girls working in the informal sector" in Ouagadougou; the "socio-educational action for young girls in rural areas" in the provinces of Bazèga, Bulkiemdé, Oubritenga and Kadiogo; and the prevention and training measures to combat domestic work by girls in Ouagadougou. It also notes that, according to the national report on the development of education in Burkina Faso of June 2004 (page 12, paragraph 1.2.2), that incentives in basic education, such as the coverage of school fees by the State, are intended to encourage school attendance by girls. The Committee requests the Government to provide information on the impact of these measures in protecting girls against the worst forms of child labour.

Article 7, paragraph 3. Designation of the competent authority responsible for the implementation of the provisions giving effect to the Convention. The Committee notes the Government’s indication that the competent authority responsible for the implementation of the measures giving effect to the Convention are the Ministry of Labour, Employment and Youth and the Ministry of Social Action and National Solidarity. It further notes that, under section 218 of the Labour Code, the labour inspectorate, under the authority of the Minister of Labour, is responsible for all matters relating to the conditions of workers and supervises the application of the measures adopted in relation to work and the protection of workers. The territorial inspector of labour and labour laws is explicitly responsible for the enforcement of Order No. 539/ITLC/HV, of 29 July 1954, respecting child labour, under the terms of section 38 of the Order. The Committee notes section 222 of the Labour Code, which establishes the powers of labour inspectors: they may enter freely for the purposes of inspection any workplace liable to inspection, without previous notice at any hour of the day; enter by night any premises in which they may have a reasonable cause to believe that persons covered by the present Act are engaged; to require, where necessary, the opinions and advice of doctors and technicians, and to be accompanied in their visits by staff delegates of the enterprise inspected and doctors; and to carry out any examination, test or inquiry which they may consider necessary in order to satisfy themselves that the legal provisions applicable are being strictly observed. The Committee notes that in its last observation on the Labour Inspection Convention, 1947 (No. 81), in 2001, it noted that, according to the Government, the constraints relating to human and material resources preventing intervention by the inspection services in this field [child labour] were being progressively reduced. The Committee indicated that it hoped that every measure would be taken to enable labour inspectors to participate actively in combating unlawful work by children and in bringing the situation in the country in this respect to the knowledge of the competent authorities. The Committee requests the Government to provide information on the action taken by labour inspectors in practice to combat the worst forms of child labour. It also requests the Government to provide additional information on the activities of the labour inspectorate and to indicate the appropriate mechanisms that it has established to enforce the implementation of the provisions of the Convention, and their impact on the elimination of the worst forms of child labour.

Parts IV and V of the report form. Application of the Convention in practice. The Committee notes the Government’s indication that appreciable assistance is being provided by IPEC in the context of the implementation of the Convention. However, it notes the absence of statistics from the Government’s report. The Committee further notes the information provided by the Government in its last report, according to which a study on child labour in metallurgy is envisaged. It therefore requests the Government to provide statistics and information on the nature, extent and trends of the worst forms of child labour, the number of children covered by the measures giving effect to the Convention, the number and nature of infringements reported, investigations, prosecutions, convictions and penal sanctions applied. To the extent possible, all information provided should be disaggregated by sex.