Solicitud directa (CEACR) - Adopción: 2005, Publicación: 95ª reunión CIT (2006)

The Committee notes the Government’s first report and requests it to provide further information on the following points.

Article 3 of the Convention. Worst forms of child labour. Clause (a). 1.  Sale and trafficking of children. The Committee notes the absence of information in the Government’s report on the existence of legislation prohibiting the sale and trafficking of children. The Committee recalls that, by virtue of Article 3(a) of the Convention, such activities are considered to be one of the worst forms of child labour and are therefore prohibited for children under 18 years of age. The Committee asks the Government to provide information on measures taken or envisaged to prohibit the sale and trafficking of children below the age of 18 years for the purpose of sexual or labour exploitation. It also requests the Government to supply a copy of relevant legislation.

2. Forced or compulsory labour. The Committee notes that section 145 of the Employment Act, 1980, prohibits forced labour. According to section 146 of the Employment Act, no concession granted to any person shall involve any form of forced labour. It notes however that section 28(1)(p), (q) and (u) of the Swazi Administration Order No. 6, 1998, provides for orders requiring compulsory cultivation, anti-soil erosion works and making, maintenance and protection of roads, enforceable with penalties for non-compliance. The Committee requests the Government to provide information on the measures taken or envisaged to prohibit the involvement of children under the age of 18 in forced or compulsory labour, in particular in the types of compulsory labour indicated in the Swazi Administration Order.

3. Forced or compulsory recruitment of children for use in armed conflict. The Committee notes the absence of information in the Government’s report on the forced recruitment of children for armed conflict. The Committee asks the Government to provide information on legislation regulating the enlisting in military service and recruitment in armed conflict. It also requests the Government to supply a copy of relevant legislation.

Clause (b). Use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances. The Committee notes the absence of information in the Government’s report on this point. It reminds the Government that, under Article 3(b) of the Convention, the use, procuring or offering of children under the age of 18 for prostitution, for the production of pornography or for pornographic performances constitutes one of the worst forms of child labour and that, under the terms of Article 1 of the Convention, each member State which ratifies this Convention 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 accordingly requests the Government to indicate the measures taken or envisaged to prohibit the use, procuring or offering of children under 18 years of age for prostitution, for the production of pornography or for pornographic performances, as well as the sanctions envisaged.

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 legislation prohibiting the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs. The Committee recalls that, by virtue of Article 3(c) of the Convention, such activities are considered to be 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 identify and provide the text of any legislation, existing or envisaged, to prohibit the use, procuring or offering of a child under the age of 18 for illicit activities, in particular for the production and trafficking of drugs.

Article 3, clause (d), and Article 4, paragraph 1. Determination of hazardous work. The Committee notes that, according to section 98(3) of the Employment Act, no person shall employ a child (defined as a person under the age of 15) or a young person (defined as a person who has attained the age of 15 but is under the age of 18) in: premises which are wholly or mainly used for the sale of intoxicating drinks for consumption on the premises; work which is likely to cause injury to his morals or conduct; work underground; dangerous or unhealthy work; such other employment as the Minister may prescribe. The Committee notes however that the Government’s report contains no information on the existence of any other regulations specifying the types of employment or work, which by their nature or the circumstances in which they are carried out are likely to harm the health, safety or morals of young persons under the age of 18. The Committee also notes that, according to section 98(1) of the Employment Act, no person shall employ a young person in any undertaking other than an agricultural undertaking between 6 p.m. and 7 a.m. It further notes that, pursuant to section 2 of the Employment Act, family undertakings and domestic employment are not included in the definition "undertaking" and therefore are not covered either by section 98(1) prohibiting night work of young persons.

In this respect, the Committee draws the Government’s attention to Article 4, paragraph 1, of the Convention, according to which the types of 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 Recommendation No. 190. This Paragraph indicates that, in determining the types of work referred to under Article 3(d) of the Convention, consideration should be given, inter alia, to: (a) work which exposes children to physical, psychological or sexual abuse; (b) work underground, under water, 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, to temperatures, noise levels or vibrations damaging to their 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. Consequently, the Committee asks the Government to provide information on the measures taken or envisaged to determine the types of work to be considered as hazardous, in consultation with the organizations of employers and workers concerned, in conformity with Articles 3(d) and 4(1) of the Convention. In determining the types of hazardous work the Committee encourages the Government to take into consideration the types of work enumerated in Paragraph 3 of Recommendation No. 190.

Self-employed workers. The Committee notes that, according to section 21(2) of the Employment Act, any person, of or above the age of 15 years, may enter into a contract of employment, defined as a contract of service, apprenticeship or traineeship, whether it is oral or in writing. The Employment Act therefore appears to exclude work performed outside the framework of a contract of employment, such as self-employment, from its scope of application. The Committee requests the Government to provide information on the measures taken or envisaged to ensure that self-employed workers under 18 years of age are protected against 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 2. Identification of hazardous work. The Committee notes the absence of information in this regard. The Committee nevertheless notes that, according to the ILO/IPEC document entitled "Supporting the Time-Bound Programme to eliminate the worst forms of child labour in South Africa’s Child Labour Action Programme and laying the basis for concerted action against worst forms of child labour in Botswana, Lesotho, Namibia and Swaziland" (18 September 2003, page 11), a rapid assessment conducted by UNICEF on child labour in Swaziland concluded that children who work in commercial agriculture are exposed to health hazards and tend to work long hours. Working conditions for child domestic workers were also found to be generally poor in terms of workload and hours of work. It draws the Government’s attention to Article 4, paragraph 2, of the Convention according to which the competent authority, after consultation with the organizations of employers and workers concerned, shall identify where the types of work determined as hazardous exist. The Committee requests the Government to provide information on the measures taken to identify where the types of hazardous work exist. In this regard, the Committee trusts that the Government will take into consideration the conclusions of the rapid assessment study by UNICEF on hazardous work in commercial agriculture and the domestic sector.

Article 5. Monitoring mechanisms. The Committee notes that, the Labour Commissioner is responsible for the application, enforcement and administration of the Employment Act, 1980, and has all the powers of an inspector under the Act. According to section 9 of the Employment Act, inspectors shall: make periodic inspections of places of employment; ensure that all laws relating to conditions of employment and the protection of employees in their occupations are being fully applied; where necessary providing information and advice as to the means of complying with such laws, including a time limit by which such compliance shall be effective; bring to the notice of the Labour Commissioner any difficulty or abuse relating to employment which is not covered by existing laws; make studies and collect data relating to employment. The Committee also notes that section 5 of the Industrial and Vocational Training Act provides for the appointment of a director and such other officers as may be necessary for the purposes of this Act, to be inspectors of training who exercise similar powers as the inspectors under the Employment Act. It further notes that, according to the 2003 Annual Report of the Labour Department, a total of 4,396 establishments were liable to inspection for the year. The Committee requests the Government to provide further information on the extent and nature of violations detected concerning children and young persons involved in the worst forms of child labour. It also asks the Government to provide information on the other mechanisms established to monitor the implementation of the penal provisions giving effect to the Convention.

Article 6. Programmes of action to eliminate the worst forms of child labour. The Committee notes the absence of information on this point. It notes however that, according to the Swaziland Humanitarian Situation Report, issued in 2004 by the Emergency Response Unit, United Nations Resident Coordinator’s Office, the following programmes and initiatives to eradicate poverty and combat HIV/AIDS are being undertaken by the Government of Swaziland:

-  Poverty Reduction Strategy Paper developed by the Ministry of Economic Planning and Development with the assistance of other development partners, which adopts a three-pronged approach to poverty reduction;

-  Millennium Development Goal Report launched in 2004 by the UN Country Team and the Ministry of Economic Planning and Development, which sets eight goals to be achieved by 2015 and aims to eradicate extreme poverty and hunger, achieve universal primary education, and to combat HIV/AIDS, malaria and other diseases;

-  Joint UN Support Project to Develop Regional Capacity to Combat HIV/AIDS Among Adolescents carried out by the UN Country Team, which includes issues of peer education, orphans and vulnerable children, sexual and reproductive health, support to people living with HIV/AIDS;

-  Protracted Relief and Recovery Operation (PRRO), which aims to help vulnerable people especially those affected by HIV/AIDS and includes such issues as school feeding and neighbourhood care points targeting children under the age of 10 who are extremely vulnerable.

The Committee requests the Government to provide more detailed information on the achievements of these programmes and their impact on eliminating the worst forms of child labour. It also asks the Government to provide further information on steps taken or envisaged to develop programmes of action to eliminate specifically the worst forms of child labour, in consultation with workers’ and employers’ organizations and taking into account the views of other concerned groups.

Article 7, paragraph 1. Penalties. The Committee notes that sections 109 and 145 of the Employment Act provide for penalties of fine or imprisonment for employment of children and young persons in contravention of this Act and for breach of the provisions prohibiting forced labour. 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. The Committee notes that ILO/IPEC has initiated a child labour project on the elimination of the worst forms of child labour under its Time-Bound Programme (TBP) entitled "Supporting the Time-Bound Programme to eliminate the worst forms of child labour in South Africa’s Child Labour Action Programme and laying the basis for concerted action against worst forms of child labour in Botswana, Lesotho, Namibia and Swaziland (BLNS)". This project will contribute to the elimination of the worst forms of child labour in the South African Customs Union (SACU) region by supporting the National Plan of Action in South Africa (CLAP) and enhancing the capacity to address this issue in BLNS. The project is currently in its initial stages. It is expected that data collection and rapid assessments of different sectors of child labour will commence by mid-2005.

Clause (a). Prevent the engagement of children in the worst forms of child labour. The Committee notes that, according to the information available at the Office, primary education in Swaziland starts at the age of 6 and lasts seven years and secondary education lasts five years. Education is neither free nor compulsory. It also notes that, according to article 30(6) of the draft Constitution every Swazi child shall have the right to free education in public schools at least up to the end of primary school within three years after the Constitution comes into force. The Committee further notes that, according to the National Report of the Kingdom of Swaziland presented at the 47th Session of the International Conference on Education in 2004 (page 8), in the early 1990s the school enrolment rate in Swaziland was about 85 per cent. In the 2000s the rate went down to 67 per cent because of HIV/AIDS and poverty. There are a lot of dropouts and only a fraction reaches a higher level of education. Considering that education contributes to the elimination of the worst forms of child labour, the Committee hopes that the Government will increase its efforts to provide free and compulsory education and ensure that children attend school regularly and reduce school dropout rates. It requests the Government to provide information on the impact of the TBP in this regard on preventing the engagement of children in the worst forms of child labour.

Clause (b). Direct assistance for the removal of children from the worst forms of child labour and for their rehabilitation and social integration. The Committee notes that, according to the research study on trafficking in women and children in the southern Africa region carried out by the International Organization for Migration (IOM), southern Africa hosts a diverse range of human trafficking activities. The region’s young women and children are especially vulnerable to the recruitment tactics of traffickers because civil unrest and economic deprivation leave them with few opportunities at home, and makes migration to South Africa or Europe a natural and common solution. The absence of domestic anti-trafficking legislation offers law enforcement little incentive to pursue the criminal syndicates responsible for this activity. Southern Africa also offers little in the way of rehabilitation support for trafficking victims and the illegal status of most victims gives them little motivation to seek it. The Committee requests the Government to provide information on the impact of the TBP with regard to removing children from trafficking and providing for their rehabilitation and social integration.

Clause (c). Ensure access to free basic education and vocational training of all children removed from the worst forms of child labour. The Committee requests the Government to indicate the effective and time-bound measures taken to ensure access to free basic education or vocational training of the girls and boys targeted by the TBP.

Clause (d). Identifying and reaching out to children at special risk. Child orphans of HIV/AIDS. The Committee notes that, according to the Swaziland Humanitarian Situation Report, issued in 2004 by the Emergency Response Unit, United Nations Resident Coordinator’s Office, one of the most complex problems the country is currently facing is the HIV/AIDS epidemic which is exacerbating poverty and creating pockets of extreme vulnerability in rural and urban areas across the country. The report estimates that the HIV prevalence in the country has increased to 34.7 per cent in a ten-year time period and an estimated 50 Swazis are dying every day from AIDS and 55 new infections are occurring daily, mostly among young people. Swaziland’s orphan population is estimated to have reached 60,000 in 2004 and will double by the year 2010. According to information from UNICEF, conditions in southern Africa such as, inter alia, the HIV/AIDS epidemic, have resulted in the deterioration of conditions for all families. Many children are dropping out of school and engaging in hazardous work to support their families. The crisis has left children and women vulnerable to sexual exploitation to meet their basic needs. The Committee also notes that UNFPA in collaboration with the World Food Programme (WFP) have embarked on a project to address the gender dimensions of HIV/AIDS. The project aims to train 358 women in the Lowveld and Middleveld as community counsellors for a range of health and safety issues, specifically HIV/AIDS, sexual abuse and exploitation. It further notes that the aims of the agreement of 2001-05 between the Government of Swaziland and UNICEF on HIV/AIDS include the mitigation of adverse impacts on orphans and vulnerable children, infection prevention among young people, prevention of parent to child transmission, care and support of affected children and their families and "breaking the silence" (advocacy and communication). Considering that the pandemic of HIV/AIDS has consequences on orphans who might more easily engage in the worst forms of child labour, the Committee asks the Government to provide further information on effective and time-bound measures taken to address the situation of these children.

Clause (e). Take account of the special situation of girls. The Committee asks the Government to provide information on the manner in which the TBP will take account of the special situation of girls.

Article 8. International cooperation and assistance. The Committee notes that Swaziland is a member of Interpol, which helps cooperation between countries in the different regions especially in the fight against trafficking of children. It also observes that Swaziland ratified the Convention on the Rights of the Child in 1995. It further notes that Swaziland signed in 2001 but has not yet ratified the Supplementary Protocols to the UN Convention against Transnational Organized Crime to Prevent, Suppress and Punish Trafficking in Persons and on Smuggling of Migrants. The Committee asks the Government to provide information on any steps taken to assist other member States or on assistance received giving effect to provisions of the Convention through enhanced international cooperation and assistance including support for social and economic development, poverty eradication programmes and universal education, in conformity with the requirements of the Convention.

Part III of the report form. The Committee notes the absence of information in this regard. It encourages the Government to supply any court decisions regarding the legislation relevant to the application of the Convention, even if the provisions of the Convention as such were not among the focus of the decisions.

Parts IV and V of the report form.  Application of the Convention in practice. The Committee notes the absence of information on this point in the Government’s report. It therefore requests the Government to provide information on the application of the Convention in practice and on any practical difficulties encountered in the application of the Convention. The Committee also asks the Government to supply copies of extracts from official documents including inspection reports, studies and inquiries and where such statistics exist, 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 reports, investigations, prosecutions, convictions and penalties applied.