Observation (CEACR) - adoptée 2001, publiée 90ème session CIT (2002)

The Committee notes the Government’s response to its previous comments.

1. For several years the Committee has been requesting the Government to repeal or amend Act No. 76-011 of 21 May 1976 concerning national development efforts and its Implementing Order No. 00748/BCE/AGRI/76 of 11 June 1976 which are contrary to the Convention. The abovementioned act and its implementing order require, on pain of penal sanctions, every able-bodied adult person who is not already considered to be making his contribution by reason of this employment (political representatives, wage earners and apprentices, public servants, tradesmen, members of the liberal professions, the clergy, students and pupils), to carry out agricultural work and other development work as decided by the Government.

In its latest report, the Government states that although they have not been repealed, Act No. 76-011 and its implementing legislation are not applied.

The Committee hopes that the Government will take the necessary measures for the repeal or amendment of the abovementioned Act so as to bring the legislation into conformity with the Convention.

2. In its previous reports, the Committee noted problems related to sections 18 to 21 of Legislative Ordinance No. 71/087 of 14 September 1971 on minimum personal contributions which provides for the imprisonment involving compulsory labour of tax defaulters by decision of the chief of the local community or the area commissioner as a means of recovering the minimum personal contributions.

The Committee noted the information reiterated by the Government that draft amendments to the provisions in question were under consideration.

The Committee expresses the firm hope that the Government will shortly take the necessary measures to ensure the observance of the Convention.

3. Article 2, paragraph 2(c), of the Convention. The Committee drew the Government’s attention to Ordinance No. 15/APAJ of 20 January 1938 respecting the prison system in native districts which allows work to be exacted from detainees who have not been convicted.

In its latest report, the Government indicates that the abovementioned ordinance has been repealed by one of the sections of Ordinance No. 344 of 17 September 1965 governing prison labour. The Committee notes, however, that Ordinance No. 15/APAJ of 1938 is not listed among the legislation which is repealed by section 108 of Ordinance No. 344.

The Committee also noted the information supplied by the Government to the effect that the Supreme National Conference has decided to reform the penitentiary system and repeal certain provisions of the law. It expresses the strong hope that measures will be taken in the near future to bring national legislation into conformity with the Convention and that the Government will report on progress made in this regard.

4. Article 25. In its earlier comments, the Committee stressed the need to include a provision in national legislation establishing penal sanctions for persons who unlawfully exact forced or compulsory labour, in accordance with Article 25 of the Convention.

In its latest report, the Government reaffirms its intention to insert into the 1967 Labour Code, which is undergoing revision, provisions laying down effective penal sanctions for persons exacting forced labour.

The Committee expresses the strong hope that the legislation will soon be brought into conformity with the requirements of Article 25 of the Convention in the near future.

5. Article 2, paragraph 2(b). The Committee notes the prohibition of forced or compulsory labour provided in section 2 of the Labour Code of 9 August 1967. Section 2 also provides exceptions to this prohibition, including "any work or service forming part of the legal civic obligations in the public interest or that the community concerned has imposed of its own free will, such as the construction or maintenance of communication routes, the reconstruction and cleaning of dwelling places, delivery of supplies, land development or construction for economic, social or cultural purposes". This exception allows the authorities to force persons to perform general or local public works.

Article 2, paragraph 2(b), of the Convention exempts from its provisions any work or service which forms part of normal civil obligations. Referring to paragraph 34 of its 1979 General Survey on the abolition of forced or compulsory labour, the Committee recalls, however, that this exception cannot be invoked to justify recourse to forms of compulsory service which are contrary to other specific provisions of  the Convention. The work provided under section 2 of the Labour Code allowing the exaction of public works of general interest falls outside the framework provided by the exception in Article 2, paragraph 2(b), and are contrary to the Convention, in the light also of the specific conditions laid down in Article 2, paragraph 2(a), (d) and (e).

The Committee requests the Government to indicate the measures taken or contemplated to ensure compliance with the Convention on this point.

6. The Committee notes the concluding observations of the Committee on the Rights of the Child (CRC/C/15/Add.153, paragraph 66) according to which a large number of children work in dangerous places, notably in the Kasaï mines and in certain locations in Lubumbashi in conditions which are described as inhuman by the Special Rapporteur of the Commission on Human Rights (E/CN.4/2001/40, paragraph 105). Furthermore, according to section 32 of Order No. 68/13 of 17 May 1968, such work is prohibited for children under 18 years of age.

The Committee observes that the conditions described as inhuman bring into question the validity of the child’s agreement to carry out this work.

The Committee notes, furthermore, that the State or other protagonists in the armed conflict recruit children to use as soldiers, including children under 15 years of age (Committee on the Rights of the Child, CRC/C/15/Add.153 of 9 July 2001, paragraph 64).

Referring to the abovementioned observations of the Committee on the Rights of the Child and to the concluding observations of the Committee on the Elimination of Discrimination Against Women (A/55/38, paragraph 26), the Committee notes also the information concerning the sale, trade and exploitation for pornographic purposes of girls and boys as well as cases of prostitution of girls.

The Committee requests the Government to examine the situation of children working in mines, child soldiers and cases of exploitation of children for pornographic purposes in the light of the Convention and to communicate any information on the working conditions of these children. The Committee also requests the Government to indicate the national provisions punishing the trafficking in persons.

7. Possibility for judges to resign. The Committee notes that the status of judges is governed by Legislative Ordinance No. 88-056 of 29 September 1988 of which section 38 provides that judges’ resignations must be accepted by the President of the Republic.

The Committee requests the Government to supply further information in this regard, particularly on the possibility for the President of refusing to accept the resignation and in what circumstances.

8. The Committee requests the Government to supply a copy of the Penal Code, the Penal Procedure Code and the Legislative Ordinance on the suspension of compulsory civic service as well as the legislation on vagrancy and begging.