Demande directe (CEACR) - adoptée 2016, publiée 106ème session CIT (2017)

Repetition

Article 1(a) of the Convention. Penal sanctions involving compulsory labour as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. In its previous comments, the Committee noted that the following sections of the Criminal Code provide for sanctions of imprisonment which may involve an obligation to perform labour (by virtue of section 29(1)) in circumstances covered by the Convention:

• – section 48(1) and (2) (possession, importation, publishing, selling, distribution or reproduction of prohibited publications);
• – section 52(1) and (2), as amended by Act No. 3 of 2005 (uttering any seditious words; printing, publishing, selling, distribution or reproduction of seditious publication; possession or importation of seditious publication); and
• – section 59(1) (publishing or reproduction of false statements, rumours or reports which are likely to cause fear or alarm to the public or to disturb the public peace).

The Committee notes the Government’s indication that the offences prescribed under the abovementioned provisions are restrictively interpreted and applied. Their application is limited when the threat to the public is real and where there is concrete evidence to suggest that the suspect intended to cause fear or bring harm to the public.

However, the Committee notes the information in the compilation report prepared by the Office of the High Commissioner for Human Rights (OHCHR), for the Universal Periodic Review of 13 November 2009, that the Human Rights Committee expressed concern that numerous members of the political opposition, independent journalists and human rights defenders had been subjected to arbitrary arrests and periods of detention of varying length, without charges (A/HRC/WG.67/GMB/2, paragraph 24). The Human Rights Committee also stated that the legislation adopted in 2002, creating a National Media Commission vested with the power to order the detention of journalists, as well as the resort to libel and defamation charges against journalists, was indicative of unjustifiable restrictions of freedom of thought and expression, and of a pattern of harassment of independent media (A/HRC/WG.67/GMB/2, paragraph 38). This OHCHR compilation further indicates that both the UN Special Rapporteur on the situation of human rights defenders and the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression have raised several cases regarding the detention, without charges, of journalists and staff of non governmental organizations in the country (A/HRC/WG.67/GMB/2, paragraph 37). Moreover, this OHCHR compilation indicates that, in 2008, the Resident Coordinator of the United Nations Development Group in Gambia stated that the overall human rights situation had deteriorated significantly, particularly with regard to arbitrary arrests and detention, free and fair trials, freedom of expression and of the press, and that that there had been a number of arrests of members of the National Assembly, journalists, prominent civilians and private lawyers (A/HRC/WG.67/GMB/2, paragraph 28).

The Committee recalls that limitations may be imposed by law on individual rights and freedoms in order to ensure respect of the rights and freedoms of others and to meet the requirements of morality, public order and the general welfare in a democratic society, and 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. However, the Committee wishes to emphasize that if such restrictions are formulated in such wide and general terms that they may lead to penalties involving compulsory labour as punishment for the peaceful expression of views or of opposition to the established political, social or economic system, such penalties fall within the scope of the Convention.

In light of the above considerations, the Committee urges the Government to take the necessary measures to ensure that no prison sentences involving compulsory labour are imposed on persons who, without having recourse to violence, express political opinions or views opposed to the established political, social or economic system. The Committee requests the Government to provide information, in its next report, on the application of sections 48(1) and (2), 52(1) and (2), and 59(1) of the Criminal Code in practice, supplying copies of the court decisions defining or illustrating their scope. The Committee once again requests the Government to supply, with its next report, copies of the legislation in force in the following fields: laws governing the press and other media; laws governing political parties and associations and laws governing assemblies, meetings and demonstrations.

Article 1(c). Punishment for breaches of labour discipline in the public service. In its previous comments, the Committee noted that under section 113 of the Criminal Code (neglect of official duty), public servants who wilfully neglect to perform their duty are guilty of a misdemeanour, in which case a punishment of imprisonment (which may involve an obligation to perform labour) for a term not exceeding two years may be applied, in accordance with section 34 (general punishment for misdemeanours).

The Committee notes the Government’s statement with reference to section 131 of the Labour Act, which concerns secret balloting. The Committee recalls however, with reference to section 113 of the Criminal Code, that normally, breaches of labour discipline give rise only to disciplinary sanctions or other kinds of sanctions (for example, sanctions of a monetary character) which do not involve any obligation to perform labour (2007 General Survey on forced labour, paragraph 172). In order to enable the Committee to ascertain that section 113 is not used as a means of labour discipline within the meaning of the Convention, it requests the Government to indicate whether section 113 is used in practice, and under which conditions.

Article 1(d). Punishment for having participated in strikes. In its previous comments, the Committee noted that, under section 139(1) of the Labour Act, 2007, certain industrial actions which are conducted in breach of procedure are deemed improper and may be prohibited by order of the High Court. In the absence of any information from the Government, the Committee requests it to indicate, in its next report, whether participation in industrial actions under section 139(1) is punishable with penal sanctions. In the affirmative, please supply a copy of the relevant provisions, as well as information on their application in practice, indicating the penalties imposed.