Demande directe (CEACR) - adoptée 1990, publiée 77ème session CIT (1990)

1. In its previous comments, the Committee referred to Legislative Decree No. 1/16 of 29 May 1979 which establishes the obligation for all natural and able-bodied persons of 18 years of age residing in Burundi to carry out community development work one-half day per week, on pain of a one-month prison sentence. The Committee noted the Government's indications to the effect that the penalty provided for in section 5 of the above Legislative Decree is not applied in practice and that the Government was considering abolishing it. With regard to the nature of the compulsory work, the Committee noted the Government's statement that it consisted of reforestation and erosion operations in the hills, marking out small communication tracks, installing water points, and other minor services which are decided upon by the population itself, through its elected representatives and supported by the Community Council. The Committee also noted the Government's indications that it was considering amending the provisions of the Legislative Decree with a view to ensuring, in particular, fuller participation by the populations concerned in the drawing up of the work programmes. The Committee noted that Decrees Nos. 100/78 and 100/79 of 29 May 1979, issued under Legislative Decree No. 1/16, provide that decisions concerning the need for work to be done and its nature lie within the competence of the National Commission for Regional Planning and its subcommittees, which are composed only of public servants in their capacity as representatives of the Government. The competence of the Community Council covers the supervision and practical implementation of the work decided upon by the superior body, but it does not have the right to express itself on the need for such work.

The Committee notes that the Government again states in its report that it is considering abolishing the penalty provided for in section 5 of Legislative Decree No. 1/16, but that procedural difficulties might arise. With regard to the measures to give effect to the Legislative Decree, the Government considers that they are not contrary to the spirit of Article 2 of the Convention, particularly as the regional planning subcommittee is an advisory rather than a decision-making body.

The Committee observes that, under section 3 of Legislative Decree No. 1/16, the community development work programme, adopted by the National Commission, takes account of the objectives of the National Development Plan and is drawn up in close co-operation with the Ministry of the Interior, and that section 3 also provides that a portion of the receipts is to be placed in a solidarity fund managed by the National Commission, that the Ministry of the Interior determines the quotas and that the fund must be used to finance national or local investment projects. The Committee also notes that, in accordance with Decree No. 100/79 of 29 May 1979, the regional planning subcommittee advises the National Commission on the general outline of the work and draws up the work programme on the basis of general guide-lines from the National Commission. As the Committee has already noted, the above-mentioned texts limit the role of the communities to supervision and day-to-day implementation of the work, in accordance with the general plan of the subcommittee.

The Committee refers once again to paragraph 37 of its General Survey of 1979 on the Abolition of Forced Labour, in which the criteria determining the limits of the exception provided for in Article 2, paragraph 2(e), of the Convention are enumerated:

- the services must be "minor services", i.e. relate primarily to maintenance work and - in exceptional cases - to the erection of certain buildings intended to improve the social conditions of the population of the community itself (a small school, a medical consultation and treatment room, etc.);

- the services must be "communal services" performed "in the direct interest of the community", and not relate to the execution of works intended to benefit a wider group;

- the "members of the community" (i.e. the community which has to perform the services) or their "direct" representatives (e.g. the Community Council) must "have the right to be consulted in regard to the need for such services".

In view of the Government's previous indications concerning the practice in this matter, the Committee again expresses the hope that the Government will reconsider the texts in question in the light of these indications and that the necessary measures will be taken rapidly in order to bring the legislation into conformity with the Convention and with the practice described.

2. In its previous comments, the Committee referred to sections 340 and 341 of the Penal Code, under which persons can be placed at the disposal of the Government as a penalty for mendacity and vagrancy for periods of between one and five years, during which time they are compelled to work in a specialised institution. The Committee noted the Government's statement to the effect that, as part of the campaign against the rural exodus, the persons placed at the disposal of the Government by virtue of sections 340 et seq. of the Penal Code are generally returned to their place of origin and it is only where there is repetition or an obvious offence that they are placed in prison establishments devoted to various activities that enable them to receive training and prepare them for social rehabilitation. The Committee requested the Government to indicate which authorities are responsible for placing persons at the disposal of the Government and to furnish copies of the most relevant judgements, if any, handed down in the matter.

The Committee notes that the Government again states that the matter is under study and that a reply will be furnished with the next report, and hopes that the Government will supply the information requested.

3. In its earlier comments, the Committee requested the Government to indicate the conditions under which students may now benefit from state financial assistance for the completion of their studies. The Committee notes the information supplied by the Government to the effect that study grants are provided by the State without any particular conditions other than that beneficiaries must be in possession of a recognised diploma. The Committee again requests the Government to provide a copy of the relevant texts in this connection.

4. The Committee noted previously that, by virtue of section 43 of Presidental Decree No. 1/106 of 25 October 1967, to issue the conditions of service of non-commissioned officers in the armed forces, and of section 44 of Presidential Decree No. 1/111 of 10 November 1967, to issue the conditions of service of officers, the Minister of Defence may refuse to accept a resignation when he considers that it is incompatible with the interests of the service. The Committee requested the Government to supply information regarding the criteria used in evaluating the interests of the service.

The Committee notes that, in its last report, the Government indicates that it is not appropriate to provide information on the manner in which the armed forces are managed; the competent authority is entitled to use its discretion in evaluating the interests of the service.

The Committee draws the Government's attention to paragraph 67 to 73 of its General Survey of 1979 on the Abolition of Forced Labour, in which it observes that the worker's right to free choice of employment is inalienable, and that the effect of statutory provisions preventing termination of employment of indefinite duration by means of notice of reasonable length is to turn a contractual relationship based on the will of the parties into service by compulsion of law. Referring more particularly to career servicemen, the Committee observes that persons who have voluntarily entered into an engagement may not be deprived of the right to leave the service in peacetime within a reasonable period, either at specified intervals, or with previous notice, subject to the conditions which may normally be required to ensure the continuity of the service. Accordingly, the discretionary power of the authority is limited by the workers' rights. The Committee requests the Government to indicate in what circumstances the authority considers that the interest of the service requires servicemen to be retained in employment, the nature of the sanctions to which they are liable and the possibilities of appeal against decisions to refuse resignation.

The Committee also noted that, under section 4 of Legislative Decree No. 1/53 of 1 June 1971 to lay down the procedure for recruitment to the armed forces and the military obligations, these obligations last for 15 years. It also noted that Presidential Decree No. 1/118 of 18 November 1967 to lay down the situation of other ranks within the armed forces, contains no provision relating to resignation since engagement is by fixed-term contract. The Committee requested the Government to indicate the duration of the contracts referred to in section 3 of Presidential Decree No. 1/118.

The Committee takes note of the Government's indications in its report to the effect that the duration of the contracts referred to in section 3 of Presidential Decree No. 1/118 is generally six years, renewable once.