Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes that no report has been received from the Government. It must therefore repeat its previous observation on the following matters:

1. Work exacted for national development purposes. For several years the Committee has been requesting the Government to repeal Act No. 76-011 of 21 May 1976 concerning national development efforts and its Implementing Order No. 00748/BCE/AGRI/76 of 11 June 1976 concerning the performance of civic tasks in the context of the national food production programme. These legal texts, which aim to increase productivity in all sectors of national life, are contrary to the Convention inasmuch as they require, on pain of penal sanctions, every able-bodied adult person who is not already considered to be making his contribution by reason of his employment to carry out agricultural and other development work as decided by the Government (those already deemed to be making their contribution are political representatives, wage earners and apprentices, public servants, tradesmen, members of the liberal professions, the clergy, students and pupils). In this regard the Government previously stated that Act No. 76-011 and its implementing legislation were not applied. It explains in its last report that the Ministry of Labour and Welfare asked the Monitoring Committee at the Ministry of Human Rights to examine the provisions of national legislation which conflict with the application of the Conventions ratified by the Democratic Republic of the Congo. The Committee trusts that further to this examination the necessary measures will be adopted to repeal or amend the abovementioned texts so as to ensure their conformity with the Convention.

2. Work exacted as a means of levying taxes. In its previous comments the Committee drew the Government’s attention to sections 18 to 21 of Legislative Ordinance No. 71/087 of 14 September 1971 on minimum personal contributions, which provides for imprisonment involving compulsory labour, by decision of the chief of the local community or the area commissioner, of taxpayers who have defaulted on their minimum personal contributions. The Committee noted the information repeated by the Government reporting draft amendments to the provisions in question. It notes that, as for the texts referred to in point 1 of this observation, the provisions of Legislative Ordinance No. 71/087 will be submitted to the Monitoring Committee for examination. Recalling that this matter has been the subject of its comments for many years, the Committee expresses the firm hope that the Government will shortly adopt the necessary measures to ensure the conformity of the legislation with the Convention.

3. Article 2, paragraph 2(c), of the Convention. Work exacted from detainees who have not been convicted. For many years the Committee has been drawing the Government’s attention to Ordinance No. 15/APAJ of 20 January 1938 concerning the prison system in indigenous districts which allows work to be exacted from detainees who have not been convicted. It noted in its last observation that, contrary to what the Government indicated, this Ordinance was not formally repealed by Ordinance No. 344 of 17 September 1965 governing prison work. In its last report the Government again indicates that the 1938 Ordinance concerning the prison system in indigenous districts has fallen into disuse and that since the country’s independence the indigenous districts have ceased to exist. The Government also states that, under section 64.3 of the Ordinance of 1965 governing prison labour, detainees who have not been convicted are not subject to the obligation to work. The Committee notes this information. It hopes that the next time the legislation in this field is revised the Government will not fail to adopt the necessary measures to repeal formally Ordinance No. 15/APAJ, so as to avoid any legal ambiguity.

4. Forced labour of children. On the basis of the concluding observations of the Committee on the Rights of the Child (CRC/C/15/Add.153), of the Committee on the Elimination of Discrimination Against Women (A/55/38), and of the observations of the Special Rapporteur of the Commission on Human Rights (E/CN.4/2001/40), the Committee previously requested the Government to provide information on the situation of children working in mines (notably the Kasaï mines and certain locations in Lubumbashi), on the recruitment of child soldiers and on the allegations concerning the sale, trafficking and exploitation for pornographic purposes of girls and boys and concerning the prostitution of girls.

Regarding the situation of child soldiers, the Government indicated in its report communicated in 2002 the adoption on 9 June 2000 of Legislative Decree No. 066 concerning the demobilization and reintegration of vulnerable categories of persons forming part of combatant groups. This Decree is aimed at the demobilization and reintegration into families and/or socio-economic structures of vulnerable categories of persons in the Congolese armed forces or in any other public or private armed group. Child soldiers - boys and girls under 18 years of age - form part of a particular vulnerable category justifying urgent humanitarian intervention. The same year, a national awareness campaign on the demobilization and reintegration of child soldiers was launched by the President of the Republic. The Government indicates that, in collaboration with the National Office for Demobilization and Reintegration (BUNADER), the test phase of the demobilization project has made it possible to demobilize 300 child soldiers enrolled in the army in the city of Kinshasa. Demobilization is continuing in the other provinces of the country and the goal of the project is to demobilize 1,500 child soldiers.

The Committee notes all the above information. It also notes that section 3 of the Labour Code provides for the abolition of all the worst forms of child labour, including the forced or compulsory recruitment of children for use in armed conflicts. Despite the action taken by the Government in this field, the Committee notes with concern that the United Nations Security Council, in Resolution No. 1493 adopted on 28 July 2003, "… strongly condemns the continued recruitment and use of children in the hostilities in the Democratic Republic of the Congo, especially in North and South Kivu and in Ituri …". In addition, the United Nations Commission on Human Rights, in Resolution No. 84 adopted on 21 April 2004, "… urges all the parties … to put an end to the recruitment and use of child soldiers, contrary to international law …".

The Committee notes that the Government has ratified the Worst Forms of Child Labour Convention, 1999 (No. 182), and this year has provided the first report on its application. Inasmuch as Article 3, paragraphs (a) and (d) of Convention No. 182 state that the worst forms of child labour include "all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict" and "work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children", the Committee considers that the problem of the recruitment of child soldiers, the situation of children working in mines and the allegations concerning the sale, trafficking and exploitation for pornographic purposes of girls and boys and concerning the prostitution of girls may be examined more specifically in the context of Convention No. 182.

5. Article 25. Penal sanctions. In its previous comments the Committee stressed the need to include a provision in national legislation establishing penal sanctions for persons who unlawfully exact forced or compulsory labour, in accordance with Article 25 of the Convention. It notes with interest that, under section 323 of the Labour Code adopted in 2002, any infringement of section 2.3, which prohibits the use of forced or compulsory labour, shall be punished by a maximum of six months’ penal servitude plus a fine or by only one of these penalties, without prejudice to criminal  legislation laying down more severe penalties. In this regard, the Committee would be grateful if the Government would indicate the criminal law provisions which prohibit and penalize the use of forced labour. It once again requests the Government to send an up-to-date copy of the Penal Code and of the Code of Penal Procedure.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.