Observation (CEACR) - adoptée 2022, publiée 111ème session CIT (2023)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Nicaragua (Ratification: 1967)

Autre commentaire sur C111

Observation

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Article 1(1)(a) of the Convention. Discrimination on the basis of sex. Sexual harassment. The Committee takes note of the labour legislation provisions (Labour Code, section 17(p)) and in the field of criminal justice (Criminal Code, section 174, as amended by Act No. 779 against violence towards women) which sanction sexual harassment and quid pro quo sexual harassment. The Committee also notes from the Government’s report that: (1) in October 2020, the Supreme Court of Justice adopted the “Protocol to prevent and address labour and sexual harassment in the Nicaraguan legal system”, which aims to prevent, address and eliminate all forms of violence arising from labour and sexual harassment throughout the legal system; (2) the Ministry of Labour has been implementing processes to address labour complaints, including complaints of labour harassment, with mechanisms providing immediate action and prompt investigation by the labour inspectorate, in strict compliance with the labour legislation, and without prejudice to action that the workers affected may take through appropriate judicial channels; (3) between 2018 and 2021 the Ministry of Labour received 111 complaints of ill-treatment, labour and sexual harassment (in 40, the complaint was not upheld; 36 were accepted; 15 were settled with an agreement between the parties; 5 were withdrawn; and 4 went to criminal proceedings); (4) the Ministry of Labour has a Technical Gender Unit, which promotes equality of treatment and opportunity for women and men; and (5) between April 2020 and March 2021, none of the 19 labour courts of the first instance recorded a complaint for sexual harassment at the workplace. The Committee welcomes the initiative taken by the Supreme Court of Justice and observes that the above-mentioned Protocol defines sexual harassment as including harassment that is assimilated to blackmail (quid pro quo harassment) as well as harassment derived from a hostile work environment. The Committee requests the Government to:

(i)indicate the extent to which the provision of the Labour Code (section 17(p)) also covers the “hostile work environment”;
(ii)provide details of the penalties imposed where complaints submitted to the Ministry of Labour are upheld and identified as acts of sexual harassment;
(iii)provide details of any administrative complaint or legal action filed with the labour or criminal courts under the provisions of the Labour Code or Criminal Code in respect of sexual and quid pro quo harassment; and
(iv)continue to provide information on all measures adopted regarding awareness-raising and prevention of sexual harassment.

Discrimination on the basis of political opinion. The Committee notes that the Government: (1) refers to the Political Constitution and its provisions on non-discrimination on grounds of political creed, freedom of expression and equality in the enjoyment and exercise of political rights; (2) reports that none of the labour lawsuits filed against the central State ministries arise from political discrimination against civil or public servants, who enjoy freedom to take up the ideas of any political ideology, as they see fit; (3) in the period between April 2020 and March 2021, the labour courts heard no cases of violations of fundamental rights related to discrimination on ideological or political grounds; (4) the Office of the Procurator for Human Rights is the national institution that promotes, defends and safeguards the constitutional rights of citizens, and conducts, by virtue of Act No. 212 of 1995, ex officio investigations or investigations at the request of the party, of complaints of alleged human rights violations (the Government reports that no complaints of pressure or reprisals for participation in any type of demonstration have been received, and that during the unsuccessful 2018 coup d’état, 47 public servants denounced curtailed freedom of movement); and (5) in 2020, the Office of the Procurator for Human Rights initiated a direct approach and proximity strategy for Nicaraguans, promoting human rights education, and the receipt of complaints (the Government reports that more than 3,000 visits to urban and rural areas have been undertaken, and no complaints on grounds of political opinion have been received from the public).

The Committee notes with concern the serious situation of political discrimination in the country, as reflected in the reports from United Nations bodies and the Inter-American Human Rights System. This context explains the grounds that led to the adoption of resolution 49/3 on the promotion and protection of human rights in Nicaragua, adopted by the United Nations Human Rights Council on 31 March 2022, in which the Council, among other matters: (1) expressed grave concern “at the violations of civil and political rights in the context of the electoral process of 2021, in contravention of the obligations of Nicaragua to uphold the right of every citizen to take part in the conduct of public affairs and to vote and be elected in genuine periodic elections” as well as at “the adoption and use of legal provisions that explicitly aim, or may be used, to restrict the ability of Nicaraguan citizens to participate in the political process;” (2) condemned “the continuation of arbitrary detentions and new arbitrary detentions, including in the context of the electoral process of 2021, of, inter alia, opposition pre-presidential candidates and political leaders, human rights defenders, business people, journalists, peasant and student leaders and members of civil society organizations, and expressing grave concern for their integrity, treatment and detention conditions, including health conditions, which may constitute torture or cruel, inhuman or degrading treatment or punishment, and recognizing the particular vulnerability of older and sick persons, and women and girls, in detention”; (3) expressed “grave concern at the deterioration of democracy and the situation of human rights in Nicaragua, in particular with regard to the enjoyment of civil and political rights, continuing reports of human rights violations and abuses”; and (4) decided to “establish, for a period of one year, a group of three human rights experts on Nicaragua, to be appointed by the President of the Human Rights Council”, which, among other activities, will “conduct thorough and independent investigations into all alleged human rights violations and abuses committed in Nicaragua since April 2018, including the possible gender dimensions of such violations and abuses, and their structural root causes” (A/HRC/RES/49/3, preambular paragraphs 9 and 12, substantive paragraphs 1 and 14(a)). The Committee also notes that the Human Rights Committee (United Nations Covenant on Civil and Political Rights (CCPR)) refers to a generalized repression to restrain the people (CCPR/C/NIC/CO/4, 3 November 2022, paragraphs 31, 35 and 37), and that the United Nations Committee on Economic, Social and Cultural Rights, in its concluding observations on the fifth periodic report of Nicaragua, expressed deep concern to note allegations that persons who oppose or criticize the Government are subjected to discrimination on the basis of political opinion that affects the exercise and enjoyment of their economic, social and cultural rights, in particular their right to work and their access to health services (E/C.12/NIC.CO/5, 11 November 2021, paragraph 17). Lastly, the Committee notes the press release from the Inter-American Commission on Human Rights (IACHR) of 4 November 2022 which notes the “recrudescence of repression and persecution of political opponents”.

In the same vein, the Committee notes with concern that the Inter-American Court of Human Rights adopted on 22 November 2022 a resolution on provisional measures (Matter of Juan Sebastián Chamorro et al. and 45 inmates in 8 prisons, regarding Nicaragua) in which it declared the State of Nicaragua to be in permanent contempt of court for failing to comply with the provisional measures, whose purpose is precautionary and protective, in violation of its obligations under the American Convention on Human Rights. The Committee considers that a climate of violence, insecurity and intimidation, as described by the United Nations bodies or the IACHR is propitious for serious acts of discrimination in employment and occupation against persons who express their political opinion. The Committee urges the Government to adopt the necessary measures to comply with its observations on matters of non-discrimination in employment and occupation, and requests the Government to report on: (i) any additional measure taken to eliminate discrimination on political grounds and provide adequate protection for workers in the event of discrimination on the basis of political opinion; and (ii) the outcome of any investigation conducted into complaints against the administrative or judicial authorities for acts of discrimination on the basis political opinion.

Discrimination on the basis of race. Indigenous peoples. The Committee notes the Government’s indication that the global registry of enrolment in higher education and vocational training for the 2020 and 2021 period shows a total of 308,699 students, of whom 49,911 were from indigenous or Afro-descendent peoples and of whom more than half were women. The Government provides detailed statistics disaggregated by sex, region and university, and reports on measures taken in them to prevent and eradicate discrimination in education. The Committee also notes the concluding observations of the United Nations Committee on the Elimination of Racial Discrimination (CERD), in particular that the Committee: (1) “urges the State to take the urgent action required to guarantee effective protection and respect for the rights of indigenous and Afro-descendent peoples, particularly in the Atlantic Coast region” and “urges the State Party to continue its efforts to effectively promote social inclusion, reduce the incidence of poverty and inequality affecting members of indigenous or Afro-descendent peoples, including through the adoption of specific or affirmative action to eliminate the structural discrimination that they continue to face”; and (2) “recommends that the State Party combat the multiple forms of discrimination faced by indigenous and Afro-descendent women, including through the incorporation of a gender perspective in all policies and strategies against racial discrimination”. Equally, the CERD recommend that Nicaragua adopt measures ensuring that indigenous and Afro-descendent women have access to all of their rights, including education, employment and health, taking account of cultural and linguistic differences” (CERD/C/NIC/CO/15-21, 30 August 2022, paragraphs 17 and 39). In this respect, the Committee requests the Government to continue reporting on all measures adopted or envisaged to protect indigenous and Afro-descendent peoples against racial discrimination in employment and occupation.

Article 2. National policy on equality of opportunity and treatment. Public service and private sector. With regard to its previous comments, the Committee welcomes and notes the detailed information provided by the Government on: (1) the legal framework recognizing equality as the starting point for promoting and obtaining non-discrimination; (2) various initiatives to generate employment for women; (3) statistical data on the employment of men and women in the public sector (in 2021, 59 per cent were women; in the judiciary, more than 60 per cent of administrative and managerial posts were occupied by women); (4) the constitutional decision on equality between men and women in posts assigned by popular election; (5) many programmes, strategies, plans and projects to eliminate gender stereotypes, and action to provide protection against discrimination in early childhood, adolescence and youth; and (6) continuous training processes for public servants in the area of legislation on equality. The Committee requests the Government to continue reporting on the outcomes of the many actions taken relating to the national policy of equality of opportunity and treatment.

Enforcement. Labour inspection. The Committee notes the number of inspections undertaken relating to equality and non-discrimination at work as reported by the Government. The Committee requests the Government to provide information on the type of violations identified relating to the application of the Convention, the corrective measures introduced and the penalties imposed.

In light of the situation described above, the Committee notes with deep concern the climate of violence, insecurity and intimidation in the country which is propitious for serious acts of discrimination in employment and occupation against persons who express their political opinion. In this context, the Committee notes the arbitrary detentions of political leaders, human rights defenders, business people, journalists, peasant and student leaders and members of civil society organizations. It further notes the continuing reports of human rights violations and abuses, including gender-based discrimination. The Committee considers that this case meets the criteria set out in paragraph 114 of its General Report to be asked to come before the Conference.

[The Government is asked to supply full particulars to the Conference at its 111th Session and to reply in full to the present comments in 2023.]