Demande directe (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

The Committee notes with regret that the Government’s report has not been received. It 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:

Article 1(a) of the Convention. Punishment for expressing political views. In its earlier comments, the Committee noted that sentences of imprisonment (which involve compulsory prison labour) may be imposed under sections 47 and 48 of the Penal Code on any person who prints, makes, imports, publishes, sells, distributes or reproduces any publication prohibited by the President “in his absolute discretion” as being “contrary to the public interest”; similar sentences may be imposed under section 51(1)(c), (d) and (2) concerning seditious publications. The Committee also noted that sentences of imprisonment may also be imposed under sections 66–68 of the Penal Code on any person who manages or is a member or in any way takes part in the activity of an unlawful society, particularly of a society declared unlawful as being “dangerous to peace and order”.

The Committee recalled that Article 1(a) of the Convention prohibits the use of forced or compulsory labour as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. It also refers in this connection to paragraph 154 of its General Survey of 2007 on the eradication of forced labour, where it observed that the Convention does not prohibit punishment by penalties involving compulsory labour of persons who use violence, incite to violence or engage in preparatory acts aimed at violence; but sanctions involving compulsory labour fall within the scope of the Convention where they enforce a prohibition of the expression of views or of opposition to the established political, social or economic system, whether such prohibition is imposed by law or by a discretionary administrative decision.

While having noted the Government’s repeated indication that the above provisions of the Penal Code have not been applied in practice, the Committee expresses the hope that measures will be taken, on the occasion of the future revision of the Penal Code, in order to bring these provisions into conformity with the Convention and the indicated practice, and that the Government will provide information on the progress made in this regard.

Article 1(c). Punishment for breaches of labour discipline. The Committee previously noted that section 43(1)(a) of the Trade Disputes Act (No. 15 of 2004) makes punishable with imprisonment (involving compulsory prison labour) any wilful breach of a contract of employment by an employee who is acting either alone or in combination with others, if such a breach results in a deprivation of the public of an essential service or in substantial diminishing of the enjoyment of such service by the public.

The Committee recalled that Article 1(c) prohibits the use of forced or compulsory labour as a punishment for breaches of labour discipline. It also refers in this connection to paragraph 175 of its General Survey of 2007 on the eradication of forced labour, in which it has considered that it is not incompatible with the Convention to impose penalties (even involving an obligation to perform labour) for breaches of labour discipline that impair or are liable to endanger the operation of essential services, provided that such provisions are applicable only to essential services in the strict sense of the term (that is, services, the interruption of which would endanger the life, personal safety or health of the whole or part of the population). However, some of the services listed in the Schedule to the Trade Disputes Act (such as the Bank of Botswana, operational and maintenance services of the railways, transport and telecommunications services necessary to the operation of the above services) do not seem to satisfy these criteria.

The Committee notes the Government’s statement in its report that consultation with the social partners is ongoing with a view to amend the essential services schedule. The Committee reiterates its hope that the necessary measures will be taken in order to amend the Schedule to the Trade Disputes Act referred to above (e.g. by reducing the list of essential services to a strict minimum), in order to bring the legislation into conformity with the Convention on this point. It requests the Government to provide, in its next report, information on the progress made in this regard.