Demande directe (CEACR) - adoptée 1997, publiée 86ème session CIT (1998)

The Committee notes that the Government's report has not been received. Referring to its observation under the Convention, the Committee 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:

Tanzania mainland

In its earlier comments the Committee referred to a certain number of provisions under which forced or compulsory labour may be imposed under circumstances falling within Article 1(a), (b), (c) and (d) of the Convention.

The Committee referred to the following provisions:

Article 1(a) of the Convention. 1. Under section 25 of the Newspapers Act, 1976, the President may, if he considers it necessary in the public interest or in the interest of peace and order, prohibit the further publication of any newspaper; printing, publishing, selling or distribution of such newspaper being punishable by imprisonment (involving an obligation to perform labour). Under sections 6, 8, 9(a), 12(i) and (ii), 19 to 21 of the Societies Ordinance, administrative authorities enjoy discretionary powers to refuse or cancel the registration of societies; participation in an unregistered society being punishable by imprisonment.

The Committee had noted the Government's indication in its report received in 1992 that section 25 of the Newspapers Act is not intended to curb political purposes, but material, local or foreign, likely to cause public unrest and disorder. With the adoption of a multi-party system newspapers expressing various political views not in line with the established political system are published, and no prosecutions have been made by virtue of section 25. As concerns sections 6, 8, 9(a), 12(i) and (ii), 19 to 21 of the Societies Ordinance, the Government stated that the Ordinance dates back to colonial times and was intended to curb African/native societies from going against the colonial government. As from 1965, when the one party State was established, it ceased to apply to political parties. Following the recent constitutional changes, the Political Parties Act, 1992, was adopted to cater specifically for the establishment and registration of political parties. The Ordinance remains applicable to registration of societies other than political parties and cooperatives which are deemed not to be of a political nature; if so they are to fall under the Political Parties Act. These sections are intended to curb groups which would likely instigate violence, terrorism and other acts aimed at breaking peace and harmony. The Committee requested the Government to provide information on the application in practice of the aforementioned provisions of the Societies Act, including copies of any court decisions.

The Government indicates in its latest report that the general approach of the Registrar of Societies is rather to ensure that all the conditions necessary for registration are fulfilled. It states, however, that in practice the Registrar may refuse registration; the refusal has to be published in the Government Gazette. As regards section 19 of the Societies Ordinance referred to above, the Government indicates that it has not been implemented due to the fact that preference has been given to a similar provision of the Penal Code (Cap.16). It also states that a new policy regarding the formation of societies and application of the Societies Ordinance is under way, and that the said policy intends to facilitate and promote the establishment of societies.

The Committee has taken due note of these indications. It would appreciate it if the Government would describe this new policy in more detail, as soon as it is adopted, and supply copies of relevant texts, as well as of the provisions of the Penal Code corresponding to section 19 of the Societies Ordinance. The Committee asks the Government to continue to provide information on the application in practice of the aforementioned provisions of the Societies Act, as well as of the corresponding provision of the Penal Code, including copies of any court decisions defining or illustrating their scope. It also takes due note of the Governments indication that a copy of the Political Parties Act, 1992, is to be supplied as soon as the process of printing copies thereof is completed.

2. In its earlier comments the Committee asked the Government to provide copies of any provisions adopted pursuant to paragraph 56 of the First Schedule to section 118(4) of the Local Government (District Authorities) Act, 1982, prohibiting, regulating or controlling meetings and other assemblies (i.e. copies of any by-laws on these matters). The Committee noted the Governments indication in its report that the intention/purpose of this provision is health-oriented and aimed at preventing gatherings, meetings or assemblies of people or congestion of people in areas where there has occurred an outbreak of disease and/or any other health hazards such as meningitis, cholera, tuberculosis, etc. The Committee notes from the Government's latest report that no such provisions have been adopted to this effect pursuant to paragraph 56 referred to above. The Committee requests the Government to supply in its future reports information on any changes in the position.

Article 1(b). 3. The Committee has requested for many years information on the practical application of section 89(c) of the Penal Code (concerning certain offences in connection with self-help schemes), such as the number of convictions for offences thereunder and the particulars of any court decisions which may define or illustrate their effect or scope. The Committee notes the Governments indication in the report that time will be required to gather such information across the country. The Committee again expresses the hope that the Government will be soon in a position to provide the information requested.

Article 1(b) and (c). 4. In its earlier comments the Committee noted that, under section 176(9) of the Penal Code, any person employed under lawful employment of any description who is, without lawful excuse, found engaged in a frolic of his own at a time he is supposed to be engaged in activities connected or relating to the business of his employment may be punished with imprisonment (involving an obligation to work). In addition, under section 26 of the Human Resources Deployment Act, the Minister shall make such arrangements as will provide for a smooth and coordinated transfer or any other measure which will provide for the rehabilitation and full deployment of persons chargeable with or previously convicted under section 176 of the Penal Code.

The Government indicates in its latest report that section 176 of the Penal Code refers to idle and disorderly persons, and that the purpose and practice of this section is to avert sending persons convicted under the Penal Code to prison by deploying them in income-generating activities. The Government also states that the Human Resources Deployment Act seeks to provide such persons with necessary employment when and where available.

The Committee takes due note of these indications. Referring to the explanations provided in paragraphs 45 to 48 of its 1979 General Survey on the abolition of forced labour, the Committee must point out that provisions under which idle and disorderly persons may be punished for the mere fact of not engaging in socially useful work are incompatible with both the Forced Labour Convention, 1930 (No. 29) and Article 1(b) of the Abolition of Forced Labour Convention. Moreover, it would appear that section 176(9) of the Penal Code is primarily applicable to persons who are under lawful employment but are absent from work; the imposition of penal sanctions involving compulsory labour on such persons falls within the scope of Article 1(c) of the Convention, which prohibits the use of forced or compulsory labour as a means of labour discipline.

The Committee therefore hopes that appropriate measures will be taken by the Government in order to repeal or amend these provisions, and that, pending their repeal or amendment, the Government will continue to provide information on their application in practice, as well as on measures taken or contemplated in regard to these provisions to ensure that no form of forced or compulsory labour may be imposed as a means of labour discipline.

Article 1(c). 5. In its earlier comments the Committee also referred to section 284A of the Penal Code (under which any employee of a specified authority who causes pecuniary loss to his employer or damage to his employers property, by any wilful act or omission, negligence or misconduct, or failure to take reasonable care or to discharge his duties in a reasonable manner, may be punished with imprisonment for up to two years). The Committee took note of the Government's statement in its report received in 1992 that section 284A of the Penal Code had been repealed by section 63 of Act No. 13 of 1984, but that the substance of this section is contained in the Economic and Organized Crime Act and relates to criminal activities which became prevalent (i.e. the prevalence of losses under circumstances provided for in the said section in parastatals). The Government stated that, such cases being difficult to prove, there are few convictions made thereunder, the provisions being more of a preventive than punitive nature. The Committee requests the Government once again to provide copies of the Economic and Organized Crime Act, of Act No. 13 of 1984 and of the Penal Code as in force. It also asks the Government to indicate, in its next report, any measures taken or contemplated in order to ensure compliance with Article 1(c).

Article 1(c) and (d). 6. In its earlier comments the Committee noted that, under sections 145(1)(b), (c) and (e) and 147 of the Merchant Shipping Act, 1967, various breaches of discipline by seamen are punishable with imprisonment (involving an obligation to perform labour). Under section 151, any seaman who deserts from a foreign ship may be forcibly returned on board ship or delivered to the master, mate or owner of the ship or his agent. The Committee also noted the Government's statement in its report received in 1992 that consultations were progressing regarding these provisions with a view to accommodating the current socio-political changes and that information would be provided on any changes when completed and incorporated in the statute.

Referring to its observation under the Convention, the Committee notes the Government's indication in its latest report concerning the submission of proposals to amend the Merchant Shipping Act, with a view to bring it into conformity with the Convention, to the tripartite Labour Advisory Board for consideration. The Committee, referring also to the explanations provided in paragraphs 117 to 119 of its 1979 General Survey on the abolition of forced or compulsory labour, trusts that appropriate measures will be adopted in the near future in order to repeal or amend the provisions in question so as to bring the Merchant Shipping Act into conformity with the Convention.

Article 1(d). 7. In its earlier comments the Committee noted that sections 4, 8, 11 and 27 of the Industrial Court of Tanzania Act, 1967, contain provisions for compulsory arbitration in labour disputes, which make it possible in practice to render all strikes illegal and punishable with imprisonment (involving an obligation to perform labour). The Committee noted with interest that the Government recognizes that striking is an inalienable right of a worker; that the Act was under review to ensure compliance with the Convention and that discussions were proceeding between social partners.

The Committee notes with interest from the Government's latest report that sections 4, 8 and 11 of the above-mentioned Act have been amended by Act No. 2/1992, a copy of which is going to be provided by the Government before the submission of its next report. The Committee hopes that a copy of Act No. 2/1992 will be supplied by the Government in the very near future.

Zanzibar

Article 1(a), (b) and (c) of the Convention. 8. In its earlier comments the Committee requested information on a number of provisions imposing penalties of imprisonment (involving under section 50 of the Offenders' Education Act an obligation to perform labour). It notes the Governments indication in its latest report that the issues raised have been communicated to the competent authorities in Zanzibar, though no response has yet been received. The Committee trusts that the Government will not fail to provide, in its next report, the information on the following points:

(a) Sections 37 and 38 of the Penal Decree (concerning prohibited publications) and section 41 of the Penal Decree (concerning seditious offences), including the number of convictions under these sections, the circumstances in which such offences were committed, and the penalties imposed.

The Committee noted the Government's indication in its report received in 1993 that court records so far revealed no convictions under these sections, which meant that no penalties were imposed. The Committee expressed the hope that the Government would continue to provide information on the application in practice of these provisions.

The Committee noted the provisions of the Newspaper Act No. 5 of 1988 communicated by the Government. The Committee again requested the Government to provide information on the application in practice of sections 47 and 48 of the Act relating to seditious offences, including any court decisions permitting to assess their scope. The Committee expressed the hope that the Government will send a copy of Order No. 32/1989 as previously requested.

(b) Section 4(b) of the Deportation Decree (Cap. 41), concerning restriction orders in respect of persons conducting themselves so as to be dangerous to peace, good order, good government or public morals.

The Committee noted the Government's indication in its report received in 1993 that court records reveal no such orders being made against any person. The Committee again requested the Government to provide information on measures taken or contemplated with a view to repealing section 4(b) of the Deportation Decree (Cap. 41), so as to bring legislation on this point into conformity with the Convention and the indicated practice.

(c) Sections 55 to 57 of the Penal Decree concerning unlawful societies, including the number of orders issued declaring a society dangerous to good government, the number of convictions for offences under sections 56 and 57, the nature of the offences and the penalties imposed.

The Committee noted the Government's indication in its report received in 1993 that sections 55 to 57 of the Penal Decree concerning unlawful societies had been repealed by the Society Decree No. 20 of 1963, which had been itself repealed by the Afro Shirazi Party Decree No. 11 of 1965, which in turn had been repealed by Decree No. 3 of 1980. The Committee expressed the hope that for the sake of legal certainty the Government would envisage at an appropriate occasion to specifically repeal sections 55 to 57 of the Penal Decree. It also renewed its request for the Government to provide a copy of the different texts mentioned by the Government: Decrees Nos. 20/1963, 11/1965 and 3/1980.

(d) Sections 110 and 110A of the Penal Decree, concerning neglect of duty by persons employed in the public service and employees of a "specified authority" who cause pecuniary loss to their employer or damage to their employer's property, by any wilful act or omission, negligence or misconduct, or failure to take reasonable care or to discharge their duties in a reasonable manner.

Referring to the explanations provided in paragraphs 110 to 119 of its 1979 General Survey on the abolition of forced labour, the Committee pointed out that while the Convention does not protect persons responsible for breaches of labour discipline that are committed either in the exercise of functions which are essential to safety or in circumstances where life or health are in danger, the scope of sections 110 and 110A of the Penal Decree is wider and provides for breaches of labour discipline conducive to pecuniary losses to be punished with penalties involving compulsory labour.

The Committee expressed the hope that the Government would re-examine these provisions in the light of the above explanations and indicate in its next report the measures taken or envisaged to ensure the observance of the Convention.

(e) Section 3 of the Zanzibar Governing Shipping Decree (Cap. 141) concerning certain disciplinary offences by seamen. The Committee noted the Government's information that there have been no convictions under this provision.

The Committee expressed the hope that the Government will provide information on any application in practice of this provision.