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

The Committee takes note of the Government’s first report, which contains very limited information. The Committee requests the Government to provide information on the following points.

Article 3 of the Convention. Worst forms of child labour. Clause (a). All forms of slavery or practices similar to slavery. 1. Sale and trafficking of children. The Committee notes that the Government’s report does not provide any information on this issue. The Committee reminds the Government that, by virtue of Article 3(a) of the Convention, the sale and trafficking of children constitute one of the worst forms of child labour and are therefore prohibited for children under 18 years of age. The Committee requests the Government to provide information on the measures taken or envisaged to prohibit the sale and the trafficking of children and the sanctions envisaged. It also asks the Government to supply a copy of the relevant legislation.

2. Forced labour. The Committee notes the absence of information on this point in the Government’s report. However, it notes that the Constitution of Lesotho, under article 9, stipulates that no person shall be held in slavery or servitude, and that no person shall be required to perform forced labour. The Committee also notes that section 7 of the Labour Code states that any person who exacts or imposes forced labour, or causes or permits forced labour to be exacted or imposed for personal benefit or for the benefit of any other private individual, association or other such body shall be guilty of an offence. It also notes that subsection (2) of section 7 further provides that any chief or public officer who puts any constraint upon the population under their charge or upon any individual member of such population, to work for any private individual, company, association or other such body shall be guilty of an offence. The Committee notes that "forced labour" as defined under section 3 of the Labour Code includes "any work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself or herself voluntarily", but excludes any compulsory military service, service done as a consequence of a conviction in a court of law, service in case of an emergency, and minor communal services. The Committee asks the Government to provide information on the manner in which the prohibitions of forced labour of article 9(2) of the Constitution and section 7 of the Labour Code are applied in practice.

3. Compulsory recruitment of children for use in armed conflict. The Committee notes that, according to the Committee on the Rights of the Child (CRC/C/11/Add.20, paragraph 39), the Defence Act of 1996 states that the recruitment into the Royal Defence Force is not compulsory and only voluntary. The Act stipulates that the minimum age range for joining the Defence Force is 18 to 24 years. The Committee asks the Government to supply a copy of the Defence Act of 1996.

Clause (b). 1. Use, procuring or offering of a child for prostitution. The Committee notes that the Government provides no information on this issue. However, it notes that, according to section 1 of Proclamation No. 14 of 1949 (Women and Girls’ Protection), as amended by Act No. 53 of 1956, it is an offence for any person to: procure or attempt to procure any woman or girl to become either within Lesotho or elsewhere a common prostitute (subsection 2); procure or attempt to procure any woman or girl to leave Lesotho, with intent that she may become an inmate of or frequent a brothel elsewhere (subsection 3); procure or attempt to procure any woman or girl to leave her usual place of abode in Lesotho with intent that she may, for the purposes of prostitution, become an inmate of or frequent a brothel within Lesotho or elsewhere (subsection 4). The Committee notes that the provisions under Proclamation No. 14 of 1949 apply only to female children and adult women and therefore requests the Government to indicate the measures taken or envisaged to prohibit the use, procuring or offering of boys for prostitution.

2. Use, procuring or offering of a child for the production of pornography or for pornographic performances. The Committee notes the absence of information in the Government’s report on this issue. However, it notes that Proclamation No. 9 of 1912, "Obscene publications", states that any person who imports, makes, manufactures, produces (section 2), sells, distributes, offers for sale or distribution, or wilfully exposes or causes to be exposed to public view (section 3) any indecent or obscene publication shall be guilty of an offence. The Committee also notes that section 8 of the Proclamation provides for an offence for any person who: (1) shall be in possession of any obscene publication or other obscene object for purposes of or by way of trade; (2) shall take part in any business public or private concerned with obscene publications or objects; (3) shall advertise or make known by any means whatsoever with the object of assisting the circulation or sale of any obscene publication or object that any person is engaged in unlawful acts in connection with such publications or objects; (4) shall advertise or make known in what manner or from what person obscene publications or objects can be procured either directly or indirectly. The Committee asks the Government to indicate in what way the use, procuring or offering of a boy or girl under 18 years for pornography and pornographic performances is expressly prohibited under the relevant legislation, and corresponding penalties.

Clause (c). Use, procuring or offering of a child for illicit activities. The Committee notes the absence of information in the Government’s report on this point. However, it notes that, according to section 2 of Proclamation No. 35 of 1922, "Opium and habit forming drugs", no person shall: (a) import, export, produce or manufacture or assist in or permit or allow the importation, exportation, production or manufacture of any habit-forming drug; (b) import, cultivate, or export, or assist in or permit or allow the importation, cultivation or exportation of any plant from which such drug can be extracted, derived or produced or manufactured; (c) administer, give, sell, barter, exchange or otherwise receive any such drug or plant anything to the contrary in any other law notwithstanding. No person shall import into the territory or export therefrom any prepared opium. The Committee notes that section 14 of the Proclamation provides a list of drugs that constitutes "habit-forming drugs". The Committee asks the Government to indicate in what way the use, procuring or offering a child under the age of 18 for the production and trafficking of drugs is specifically prohibited under the relevant legislation, and corresponding sanctions.

Clause (d). Hazardous work. The Committee notes that article 32(c) of the Constitution of Lesotho states that the employment of children and young persons in work harmful to their morals or health or dangerous to life or likely to hamper their normal development is punishable by law. It also notes that section 125(1) of the Labour Code prohibits the employment of a child (under 15 years) or young person (between 15 and 18 years) on any work which is injurious to health or morals, dangerous or otherwise unsuitable, or on any work which the Minister by notification in the Gazette, or the Labour Commissioner acting in accordance with the any directions of the Minister, has declared by notice in writing, to be of a kind which is injurious to the health or morals of a child or young person. The Committee notes that section 126(1) restricts the employment of children and young persons at night in any commercial or industrial undertaking, and section 127 prohibits the employment of children and young persons in mines, quarries or any opencast working, except in terms of an apprenticeship agreement approved by the Labour Commissioner.

Self-employed children. The Committee notes that section 125(1) of the Labour Code applies only to contractual employment, and does not apply to young persons under 18 years of age who are not covered by contractual employment relations and who are engaged in types of hazardous work. The Committee requests the Government to indicate the manner in which the national legislation provides that such young persons under 18 years of age are afforded the protection set out in Article 3(d) of the Convention so as not to be engaged in work which, by its nature or the circumstances in which it is carried out, is likely to harm their health, safety or morals.

Article 4, paragraph 1. Determination of types of hazardous work. The Committee notes that neither the Labour Code nor any other legislation in Lesotho has determined the types of employment or work that is likely to jeopardize the health, safety or morals of young persons, pursuant to section 125(1) of the Labour Code. The Committee reminds the Government that, by virtue of Article 4, paragraph 1, of the Convention, the types of hazardous work referred to under Article 3(d) shall 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). This paragraph states that in determining the types of such hazardous work, 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 the health; (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 requests the Government to indicate whether any notification regarding the types of work or employment that are likely to jeopardize the health, safety and morals of children has been issued by the Minister or by the Labour Commissioner, pursuant to section 125(1) of the Labour Code. If not, the Committee requests the Government to provide information on the measures taken or envisaged to determine the types of work to be considered as hazardous and which is to be prohibited for children under 18 years of age. In determining the types of work to be considered as hazardous, the Committee trusts that due consideration will be given to Paragraph 3 of Recommendation No. 190 in this regard. It also asks the Government to provide information on tripartite consultations held thereon.

Article 4, paragraph 2. Measures taken to identify where the types of work so determined exist. The Committee notes that the Government does not provide information on where work likely to harm the health, safety or morals of children exists. The Committee reminds the Government that according to Article 4, paragraph 2, of the Convention, the competent authority, after consultation with the organizations of employers and workers concerned, must identify where the types of hazardous work exist. The Committee requests the Government to provide information on the measures taken or envisaged to identify where hazardous work exists, in consultation with the organizations of employers and workers concerned.

Article 5. Monitoring mechanisms. The Committee notes the absence of information supplied by the Government in respect of the designation or establishment of the appropriate mechanisms to monitor the implementation of the provisions giving effect to the Convention. The Committee notes, however, that section 12  of the Labour Code provides for the appointment of a Labour Commissioner for the purpose of the administration of the Code. The Committee further notes that for the purpose of ascertaining that the provisions of the Code and any other written law relating to labour, employment, industrial relations, working conditions or worker’s compensation are being duly observed, section 14 of the Labour Code provides broad powers to the labour officers to perform inspections. In performing such inspections, the labour officers are empowered to enter freely, inspect and examine any place where any employee or recruited person is employed; the right to interrogate; to require the production of any records, books, accounts or other documents; to take samples of materials and the substances used or handled; and to carry out an examination, test or inquiry which he may consider necessary. Nevertheless, the Committee observes with concern the information provided by the Committee on the Rights of the Child in its concluding observations (CRC/C/15/Add.147, paragraph 55) about the large number of children working in potentially dangerous conditions and the lack of monitoring and supervision over the conditions in which they work. The Committee requests the Government to provide information on the functioning of the labour inspectorate and any other mechanisms established or designated to monitor the implementation of the provisions giving effect to the Convention, to provide extracts of the inspection reports and to specify the extent and nature of violations detected concerning children and young persons involved in the worst forms of child labour.

Article 6, paragraph 1. Programmes of action to eliminate, as a priority, the worst forms of child labour. The Committee notes the Government’s statement that in Lesotho there have never been instances involving the worst forms of child labour, including the trafficking of children, the offering of a child for the production of pornography or the compulsory recruitment of children for use in armed conflict. It also notes the Government’s information that a study sponsored by ILO/IPEC is on the verge of being carried out by the Ministry of Employment in order to assess whether there are instances of the worst forms of child labour in Lesotho. The Committee further notes that article 32(b) of the Lesotho Constitution of 1993 states that Lesotho shall adopt policies designed to provide that children and young persons are protected from economic and social exploitation. In conjunction with Article 1, the Committee reminds the Government that, even where the worst forms of child labour do not appear to exist, the Convention requires the ratifying member States to take measures to determine whether such forms of child labour exist and to ensure that they will not arise in the future. The Committee requests the Government to provide information on the conclusions of the ILO/IPEC study. It asks the Government to communicate further information on the programmes of action taken or envisaged to eliminate, as a priority, the worst forms of child labour. The Committee also requests the Government to provide information on the consultations held on this matter with the workers’ and employers’ organizations, in accordance with the provisions of this Article, and, where appropriate, to indicate whether the views of other concerned groups are taken into consideration.

Article 7, paragraph 1. Penalties. The Committee notes that section 7 of the Labour Code punishes the offences related to the prohibition of forced labour by fines not exceeding 2,000 maloti (US$307.15) or imprisonment for a term not exceeding one year or both. It notes that, according to Proclamation No. 14 of 1949, the offence of procuring any woman or girl for the purposes of prostitution is punished by fines of 1,000 rands or imprisonment for a term not exceeding six years. The Committee notes that Proclamation No. 9 of 1912 states that anyone who imports, possesses, advertises obscene publications or takes part to business related thereto, shall be liable on conviction to a fine not exceeding 5,000 rands or to imprisonment for a period not exceeding two years or to both (sections 2 and 8). The Committee further notes that section 7 of Proclamation No. 35 of 1922 imposes a fine of 1,000 rands and imprisonment for a maximum period of three years to persons committing the offences related to the production, trade and trafficking of opium and habit-forming drugs. The Committee notes that, according to sections 125(6), 126(2) and 127(2) of the Labour Code, persons who employ a child or young person in contravention of the provisions that prohibit the employment of a child and young person in work injurious to health or morals (section 125(1)), in night work (section 126(1)) and in mines and quarries (section 127) shall be liable to a fine of 600 maloti (US$92.15) or to imprisonment for six months or to both. The Committee asks the Government to provide information on the practical application of the penalties laid down in the relevant provisions.

Article 7, paragraph 2. Effective and time-bound measures. Clause (a). Prevent the engagement of children in the worst forms of child labour. The Committee notes that the Government provides no information on these issues. However, it notes that article 28 of the Lesotho Constitution provides that the Government of Lesotho shall endeavour to make education available to all and must adopt policies aimed at securing that: education is compulsory and available to all (paragraph (b)); secondary education, including technical and vocational education, and higher education are made generally available and accessible to all by every appropriate means, and in particular, by the progressive introduction of free education (paragraphs (c) and (d)); fundamental education is encouraged or intensified as far as possible for those persons who have not received or completed the primary education (paragraph (e)). The Committee also notes that section 3(2) of Education Act No. 10 of 1995 requires a parent of a child of school-going age to cause that child to receive full-time education suitable to his age, by regular attendance at school or otherwise. The Committee notes with interest that, according to the Committee on the Rights of the Child (CRC/C/15/Add.147), free education has been introduced in Lesotho for those commencing Grade One in January 2000. It also observes the information from UNICEF that the free primary education project has succeeded in enrolling an additional 120,000 children in primary schools since 2000. It further notes with interest that the Government has taken several educational initiatives and projects in collaboration with UNICEF, such as the 1995-2000 National Plan of Action (NPA) for children (articulating how the World Declaration on the Survival, Protection and Development of Children of 1990 will be implemented at the national level); the Non-formal Education Project (promoting non-formal learning opportunities); the Early Childhood Development Project (monitoring all pre-primary schooling for early school drop-outs). However, the Committee notes that primary education has not yet been made compulsory and that, according to the Government and the Committee on the Rights of the Child, many children, in particular herd boys, children living in poverty and children in remote rural communities continue not to have access to education. The Committee notes that the Government, in its initial report to the Committee on the Rights of the Child, has stated that the Ministry of Education through the Lesotho Distance Teaching Centre offers educational programmes for early school drop-outs and that the 1996/97-1998/99 Sector Plan focuses on improving and expanding vocational and technical education in order to integrate retrenched minors and disadvantaged groups, such as herd boys and out-of-school learners (CRC/11/Add.20, paragraphs 195 and 197). The Committee is of the view that education contributes to eliminating the worst forms of child labour. It therefore requests the Government to indicate 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. Herd boys and street children. The Committee notes that, according to the Committee on the Rights of the Child (CRC/11/Add.20, paragraphs 234 and 235(b)), the practice of herding livestock is the oldest form of contractual labour for boys under the age of 18 years and herding is a dangerous and lonely venture for herd boys. It also notes the Government’s statement that some herd boys are faced with hazardous working conditions, have no workmen’s compensation facility and clothing, adequate shelter, proper nutrition and health services. The Committee observes that, according to the Government’s report to the Committee on the Rights of the Child (CRC/C/11/Add.20, paragraph 236), UNICEF has taken an initiative to address the problem of herd boys and a school in Mokhtlong district has been established to respond to the educational needs of herd boys. The Committee also notes that in its concluding observations, the Committee on the Rights of the Child observed with concern the increasing number of children living and working on the streets in Lesotho and recommended the state party to make every effort to identify and address the causes of children living on the streets and to formulate policies and providing assistance to such children (CRC/C/15/Add.147. paragraphs 59 and 60). The Committee requests the Government to provide information on the implementation of the UNICEF initiative regarding herd boys and to indicate the time-bound measures taken or envisaged to remove herd boys and children living and working on the streets from the worst forms of child labour.

2. Child victims of HIV/AIDS. The Committee notes that according to the concluding observations of the Committee on the Rights of the Child (CRC/C/15/Add.147; paragraphs 45 and 46), whilst the existing of the National AIDS Strategic Plan 2000/01-2003/04 and the Policy Framework on HIV/AIDS Prevention, Control and Management, the incidence of HIV/AIDS amongst children is alarming, in particular amongst teenage girls. Pursuant to this situation, the Committee on the Rights of the Child expressed concern at the insufficient availability of adolescent health programmes and services and the lack of adequate data in this area. It strongly recommended to the Government: to implement fully the National AIDS Strategic Plan 2000/01-2003/04 and the Policy Framework on HIV/AIDS Prevention, Control and Management as soon as possible; to give particular attention to the secondary consequences of HIV/AIDS, such as an increase in child-headed households following the death of adult family members; to undertake measures to develop youth-friendly counselling, care and rehabilitation facilities for adolescents, especially girls; to promote adolescent health policies and training programmes on reproductive health; to implement measures to discourage the abuse of alcohol and the smoking of tobacco and dagger by adolescents. The Committee asks the Government to provide information on the implementation of the National AIDS Strategic Plan 2000/01-2003/04 and the Policy Framework on HIV/AIDS Prevention, Control and Management and the concrete measures taken to address the situation of child victims of AIDS and orphans who might more easily engage in the worst forms of child labour.

Clause (e). The special situation of girls. The Committee notes that, according to the Committee on the Rights of the Child (CRC/C/11/Add.20, paragraph 232), girls under 15 years are often hired as domestic workers and that work can start as early as 5 a.m. and continue until very late at night. Girls employed under such conditions have very little time to rest and frequently are exploited in terms of earnings. The total lack of protection by the law means that abuse is possible. The Committee asks the Government to indicate the time-bound measures taken or envisaged to protect girls engaged in domestic work.

Article 8. International cooperation and/or assistance. The Committee notes the absence of information on this issue in the Government’s report. It therefore asks the Government to indicate any steps taken to assist other member States in giving effect to provisions of the Convention through enhanced international cooperation and/or assistance, including support for social and economic development, poverty eradication programmes and universal education, in conformity with these provisions of the Convention.

Part III of the report form. The Committee asks the Government to provide information on whether courts of law or other tribunals have given decisions involving questions of principle relating to the application of the Convention, and if so, to supply the text of these decisions.

Part IV. The Committee requests the Government to give a general appreciation on the manner in which the Convention is applied in Lesotho and to indicate any practical difficulties encountered in the application of the Convention or any factors which may have prevented or delayed action against the worst forms of child labour.

Part V. The Committee notes the Government’s information that some herd boys herd cattle after school and in most cases herding of cattle starts from the age of 5 to 20 and beyond. Children between 5 and 9 years old usually accompany older children during cattle herding. The Committee also notes the information contained in the Government’s report to the Committee on the Rights of the Child (CRC/C/11/Add.20, paragraph 235) that in the Sechaba Consultants Survey of 1994, 10.3 per cent of boys between 6 and 15 years were full-time herd boys and one-third of these were under 10 years of age. The Committee further notes that according to the Committee on the Rights of the Child (CRC/C/15/Add.147), children are increasingly employed also as street traders and there is an increasing number of children living and working on the streets (paragraphs 55 and 59). The Committee asks the Government to continue providing 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.