Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes 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:

Articles 1(1) and 2(1) of the Convention. 1. Freedom of public servants to leave their employment. For many years, the Committee has been drawing the Government’s attention to the provisions of the national legislation of which the application in practice could restrict the freedom of public servants to leave their employment, subject to a notice period of reasonable length. It referred in particular to sections 158 and 159 of Act No. 013/98/AN of 28 April 1998 establishing the legal framework for public service employment and public servants, under the terms of which public servants wishing to resign have to apply in writing to the Minister of the Public Service two months before the presumed date of departure. The Minister has one month in which to notify acceptance or rejection. Public servants who end their employment despite a refusal from the competent authority, before the specific acceptance of their resignation or before the date set by the authority, are dismissed on grounds of abandoning their duties.

In its report, the Government indicates that Act No. 013/98/AN has been amended, but that the provision on freedom of contract, including the granting of notice of reasonable duration to public servants wishing to resign, has not been changed since in practice no resignation duly submitted has yet been refused by the competent authority. The Committee notes this information. It requests the Government to continue providing statistical data in future reports on the number of resignations submitted by public servants and the number rejected, with an indication of the reasons for their rejection. Furthermore, in so far as similar provisions are also applicable to officials in territorial communities
(sections 159–161 of Act No. 027-2006/AN of 5 December 2006 establishing the legal framework applicable to jobs and officials of territorial communities), the Committee requests the Government to provide information on the resignations submitted by officials of these communities which have been rejected or deferred and, where appropriate, on the criteria used by communities to reject such resignations.

2. Punishment of vagrancy. In its previous comments, the Committee emphasized that laws on vagrancy when they are drafted in over general terms, may act as a direct or indirect constraint to work. This could be the case of section 246 of the Penal Code, under which any person found in a public place who is unable to show proof of known abode or means of subsistence and has no trade or profession, is guilty of vagrancy and liable to a prison term of from two to six months. The Committee requested the Government to adopt a narrower definition of vagrancy so that only persons considered to be vagrants who disturb the public order may incur any penalty. In its last report, the Government indicates that conviction to a penalty is not automatic in so far as it is necessary to have been found guilty of an offence by a competent jurisdiction to incur any penalty (section 3 of the Penal Code). The Committee observes that while sections 247–248 of the Penal Code set out penalties of imprisonment for vagrants who constitute a threat to public order or who have recourse to violence, section 246 criminalizes vagrancy as such (namely, the fact of being in a public place and being unable to show proof of known abode or means of subsistence and to have no trade or profession). Furthermore, under section 246 this offence is punishable by a sentence of imprisonment. The Committee therefore considers that, as recourse to section 246 of the Penal Code may constitute an indirect constraint to work, the Government should take measures to repeal or amend it so that only persons who disturb the public order or have recourse to violence may be liable to a sentence of imprisonment.

3. Trafficking in persons. The Committee notes the enactment of Act No. 029-2008/AN of 15 May 2008 to combat the trafficking in persons and similar practices. It notes that the Act defines in detail the elements constituting the trafficking in persons and establishes a penalty of imprisonment for from five to ten years for any person found guilty of this crime. The penalty is increased where the violation is committed under aggravating circumstances. The Committee also notes that the Act contains provisions respecting the protection of victims and witnesses, including the possibility for victims to seek to remain on the national territory on a temporary or permanent basis. The Committee would be grateful if the Government would provide information on the effect given to this Act in practice. Please indicate in this respect whether any particular publicity concerning the Act was undertaken for the authorities entrusted with its enforcement (police authorities, Office of the Public Prosecutor, the judiciary) and provide copies of court rulings that have already been handed down on this basis. More generally, the Committee would be grateful if the Government would provide information on the phenomenon of the trafficking in persons in Burkina Faso, and particularly the trafficking of women for sexual exploitation. Please indicate in particular the other measures adopted to raise awareness of the population concerning this phenomenon, and particularly those most vulnerable to this form of exploitation, and indicate the difficulties facing the competent authorities in relation to both prevention and repression.

Article 2(2)(a). Work or service exacted under compulsory military service laws: work in the national interest. In reply to the Committee’s comments on work of national interest envisaged in the context of the obligation to serve in the national armed forces (section 33 et seq. of Act No. 009/98/AN of 16 April 1998 issuing general staff regulations for the national armed forces), the Government confirms that the work in the general interest in which conscripts may participate is strictly limited to cases of force majeure. Conscripts who are engaged in training may intervene in support of career members of the armed forces in certain exceptional situations in the event of imminent need. The Committee notes this information and hopes that, on the occasion of a future revision of the legislation, the Government will take the necessary measures for the inclusion of specific provision in the Act laying down that the work of national interest which may be assigned to conscripts in the context of their compulsory service in the army shall be strictly limited to cases of force majeure.

Article 2(2)(c). Work exacted as a consequence of a conviction in a court of law. In reply to the Committee’s previous comments, the Government indicates that the prison system is governed by KITI No. AN VI-103/FP/MIJ of 1 December 1988 determining the organization of and issuing regulations governing prisons. Under section 102, convicts are under the obligation to work. Detainees accepted into the correctional division may be employed outside the prison: (i) on worksites, gardens and agricultural undertakings of the prison administration; (ii) on work of general interest carried out on behalf of public communities and administrations; and (iii) in private industrial or commercial enterprises (section 106). The Government specifies that, when the prison administration makes available to a private or public user a group of detainees for work outside the prison, it does so under the system of hiring for payment. Furthermore, in the context of the semi-free system, the Government specifies that detainees placed outside the prison discuss their conditions of work and remuneration directly with the employer, prior to approval by the prison administration.

The Committee notes all of this information. It requests the Government to provide a copy of KITI No. AN VI-103/FP/MIJ of 1 December 1988 determining the organization of and issuing regulations governing prisons. It would be grateful if the Government would provide further information on the employment of detainees by private industrial and commercial enterprises under the hiring system and, where appropriate, to supply a copy of any relevant regulations. Please indicate whether the prior consent of detainees is required, the manner in which they are remunerated and their working conditions.