Demande directe (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

The Committee has noted the information provided by the Government in reply to its earlier comments. It has also noted the Criminal Procedure Act, 2004 and the Defence Act, 2002, supplied by the Government with its report.

Articles 1(1) and 2(1) of the Convention. Freedom of public servants to leave their service. The Committee has noted the provisions of section 24 of the Public Service Act, 1995, concerning retirement and discharge of staff members. It has noted, in particular, that any staff member of the public service may be discharged from the service for various reasons, such as continued ill-health, abolition of the post or reduction or reorganization of the office, promotion of the efficiency or economy of the office, unfitness for duty, misconduct, inefficiency, etc. The Committee requests the Government to indicate, in its next report, whether staff members of the public service have the right to leave the service at their own request, e.g. by means of notice of reasonable length, and supply copies of the relevant provisions. Having also noted the Government’s statement in its report on the application of Convention No. 105 that the Public Service Act needs to be reviewed in order to bring it into line with the Labour Act, the Committee hopes that, on the occasion of the revision, measures will be taken to insert, into the revised text, a provision authorizing public servants to leave their service by means of notice of reasonable length, and that the Government will provide information on the progress made in this regard. 

Article 2(2)(a) of the Convention. Compulsory military service. The Committee notes that, under section 5(2)(a)(vi) of the Defence Act, 2002, every person serving in the defence forces may be employed on such other service as may be determined by the President. The Committee requests the Government to clarify this provision, indicating the kinds of such service, as distinct from the service in defence of Namibia and other services listed in section 5(2)(a)(i–v) of the Act. Please indicate what guarantees are provided to ensure that services exacted from persons serving in the defence force under compulsory military service laws are used for purely military ends. Please also supply copies of provisions governing alternative (non-military) service in the case of persons who have conscientious objections to serving in the defence force, to which reference is made in article 9(3)(c) of the Constitution of the Republic of Namibia.

Article 2(2)(b) and (e). Normal civic obligations. The Committee previously noted that, under article 9(3)(e) of the Namibian Constitution, the expression “forced labour” does not include any labour reasonably required as part of reasonable and normal communal or other civic obligations. Please describe such “normal communal and other civic obligations” and supply copies of relevant provisions.

Article 2(2)(c). 1. Conviction in a court of law. The Committee previously noted that, under article 9(3)(a) of the Namibian Constitution, the expression “forced labour” does not include any labour required in consequence of a sentence or order of a court. The Committee recalled that, according to Article 2(2)(c) of the Convention, work can only be exacted from a person as a consequence of a conviction in a court of law. Referring to the explanations in paragraphs 51–52 of its General Survey of 2007 on the eradication of forced labour, the Committee again requests the Government to clarify the meaning and the scope of an “order of a court” (as opposed to a sentence in criminal proceedings), under which the exaction of forced labour may be required, supplying sample copies of relevant orders, and to provide information on measures taken or envisaged to ensure the observance of the Convention on this point.

2. Work of prisoners for private enterprises. The Committee notes that section 81 of the Prisons Act, 1998, provides for the obligation of prisoners to perform labour. It also notes that, under section 83(1) of the Act, the Commissioner may enter into a contract with any institution, person or body of persons for the employment of the labour or services of prisoners who are under a sentence of imprisonment, upon such terms and conditions as may be agreed upon between such parties.

The Committee recalls in this connection that Article 2(2)(c) of the Convention expressly prohibits that convicts are hired to or placed at the disposal of private individuals, companies or associations, in a sense that the exception from the scope of the Convention provided for in this Article for compulsory prison labour does not extend to work of prisoners for private employers. However, the Committee has considered, as explained in paragraphs 59–60 of its General Survey of 2007 on the eradication of forced labour, that work for private enterprises can be compatible with Article 2(2)(c) if prisoners voluntarily enter a normal employment relationship with private employers and perform work in conditions approximating a free employment relationship. This arrangement necessarily requires the formal consent of the person concerned and, in the light of the circumstances of the consent, i.e. the basic obligation to perform prison labour, and other restrictions on the prisoner’s freedom to take up normal employment, there must be further guarantees and safeguards covering the essential elements of a labour relationship. In such a situation, work of prisoners for private companies does not come under the scope of the Convention, since no compulsion is involved.

The Committee has considered, in paragraphs 114–122 of its 2007 General Survey referred to above, that the most reliable indicator of the voluntariness of labour is the work performed under conditions approximating a free labour relationship, which include wage levels (leaving room for deductions and attachments), social security and occupational safety and health. In addition, there may also be other factors that can be regarded as objective and measurable advantages which the prisoner gains from the actual performance of the work and which could be considered in determining whether consent was freely given and informed (such as the learning of new skills which could be deployed by prisoners when released; the offer of continuing work of the same type upon their release; or the opportunity to work cooperatively in a controlled environment enabling them to develop team skills).

While having noted the Government’s indication in the report that, in practice, prisoners volunteer for performing work and the opportunity to perform work is conditional on their good behaviour, the Committee hopes that the necessary measures will be taken to ensure that free and informed consent is required for the work of prisoners for private enterprises both inside and outside prison premises, so that such consent is free from the menace of any penalty and authenticated by the conditions of work approximating a free labour relationship, as well as by other objective and measurable factors referred to above. Please also supply sample copies of contracts concluded by the Commissioner with private enterprises for the employment of the labour or services of prisoners, as well as copies of any rules or regulations governing their conditions of work.

Article 25. Penalties for the illegal exaction of forced or compulsory labour. The Committee previously noted the provisions of section 4(3) of the Labour Act, 2004, punishing the illegal exaction of forced labour with the penalties of imprisonment and fines, and requested information on any legal proceedings which have been instituted as a consequence of the application of this section in practice. The Committee has noted the Government’s indication in its 2006 report that the Labour Act, 2004, will be replaced with the Labour Bill, 2006, and the penalties provided for in section 4(3) will be increased. The Government also indicates that, pending the adoption of the Bill, the Labour Act, 1992, remains in force. The Committee previously noted the provisions of section 108 of the Labour Act, 1992, punishing the illegal exaction of forced or compulsory labour with the penalties which may be imposed by law for abduction. Please describe such penalties and communicate copies of relevant texts. Noting also the Government’s indication in its 2006 report that no legal proceeding have been instituted in terms of forced labour, the Committee requests the Government to continue to provide information on the application in practice of section 108 of the Labour Act, 1992, and section 4(3) of the new Labour Act, as soon as it has been adopted, indicating the penalties imposed.