Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

Communication of texts. The Committee has noted the Government’s indication in its report that the drafting of the new Penal Code has reached its final stage and that a copy will be communicated to the ILO, as soon as the Code is enacted by the National Assembly. The Committee hopes that the Government will supply a copy of the new Penal Code, once it is adopted. It also hopes that the Government will not fail to provide, with its next report, copies of laws and regulations governing the execution of penal sentences, as well as compulsory military service laws.

Articles 1(1) and 2(1) of the Convention. 1. Compulsory national service. The Committee previously noted that, under section 3(17) of the Labour Proclamation of Eritrea (No. 118/2001), the expression “forced labour” does not include compulsory national service. It has also noted that, under article 25(3) of the Constitution of Eritrea, citizens must complete their duty in national service. The Government indicates in its latest report that, under the compulsory national service programme, the whole society is compelled to participate in the activities of agriculture, construction and defence. According to the report, though the required service has been planned for 18 months, the National Assembly of Eritrea promulgated a declaration which is known as “Warsai Yikaallo Campaign”, through which the population has been engaged in considerable programmes, mainly in reforestation, soil and water conservation, as well as reconstruction activities, as part and parcel of food security programme. The Government states that the current factual situation in Eritrea can be characterized as “no war no peace situation”. It also concludes that, since Eritrea is in a threat of war, the current situation amounts to an emergency situation.

The Committee recalls in this connection, referring also to the explanations provided in paragraphs 62–64 of its 2007 General Survey on the eradication of forced labour, that Article 2(2)(d) of the Convention exempts from its provisions “any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population”. This exception, which involves the concept of emergency, applies in restricted circumstances where a calamity or threatened calamity endangers the existence or well-being of the whole or part of the population. In order to respect the limits of the exception provided for in the Convention, the power to call up labour should be confined to genuine cases of emergency, or force majeure, i.e. a sudden, unforeseen happening calling for instant countermeasures. Moreover, the duration and extent of compulsory service, as well as the purpose for which it is used, should be limited to what is strictly required by the exigencies of the situation. On the other hand, the exception in Article 2(2)(d) concerning emergencies should not be understood as allowing the exaction of any kind of compulsory service in case of war, fire or earthquake; this exception can be invoked only for work or service that is strictly required to counter an imminent danger to the population.

The Committee has noted the provisions of article 27 of the Constitution of Eritrea, according to which a state of emergency may be declared by the President by a proclamation published in the Official Gazette, which is subject to approval by the National Assembly and remains in force for a period of six months, which may be extended by the National Assembly for a period of three months at a time. In the absence of such a declaration of emergency, which should have been also limited in duration, if adopted, and taking into account the Government’s description of the factual situation in the country, which is referred to as “no war no peace situation”, it appears that the recourse to compulsory labour in these circumstances cannot be justified by invoking the exception of “emergency” under Article 2(2)(d).

Referring also to the explanations provided in paragraphs 89–91 of its General Survey of 2007 on the eradication of forced labour, the Committee emphasizes that the existing large-scale and systematic practices of imposing compulsory labour on the population within the framework of the national service programme is incompatible both with Conventions Nos 29 and 105, which prohibits the use of forced or compulsory labour as a method of mobilizing and using labour for purposes of economic development. The Committee therefore trusts that the necessary measures will be taken, both in law and in practice, so as to limit the exaction of compulsory work or services from the population to genuine cases of emergency, or force majeure, i.e. to circumstances endangering the existence or the well-being of the whole or part of the population, and to ensure that the duration and extent of such compulsory work or services, as well as the purpose for which it is used, is limited to what is strictly required by the exigencies of the situation. Pending the adoption of such measures, the Committee requests the Government to continue to provide information on the compulsory national service programme and its application in practice, supplying copies of rules and regulations governing such service.

2. Freedom of career military personnel and public service employees to leave their service. Having noted that the Government’s report contains no information on this issue, the Committee again requests the Government to indicate any provisions applicable to career military officers and other career members of the armed forces, as regards their right to leave the service, in time of peace, at their own request, either at certain reasonable intervals or by means of notice of reasonable length. Please also provide information on provisions applicable to public service employees as regards their right to leave the service at their own request.

Article 2(2)(a). Compulsory military service. Referring to the above considerations concerning compulsory national service (article 25(3) of the Constitution of Eritrea, section 3(17) of Labour Proclamation No. 118/2001), the Committee has noted the Government’s indication in its report that the main purpose of compulsory national service is to carry out military service. The Committee recalls, referring also to the explanations provided in
paragraphs 43–46 of its 2007 General Survey on the eradication of forced labour, that under Article 2(2)(a) of the Convention, compulsory military service is excluded from its scope only if used “for work of a purely military character”. The Committee therefore again requests the Government to indicate whether guarantees are provided to ensure that services exacted under compulsory military service laws are used for purely military ends and to supply copies of the relevant provisions.

Article 2(2)(c). Prison labour. As regards guarantees to ensure that convicted persons are not hired to or placed at the disposal of private individuals, companies or associations, the Committee has noted the Government’s indication in its report that such guarantees will be provided by the draft Penal Code of Eritrea. The Committee requests the Government to supply a copy of the new Penal Code, once it is adopted, and to provide information on the provisions governing the work of convicted persons, supplying copies of relevant texts.

Article 2(2)(e). Minor communal services. The Committee previously noted that, under section 3(17) of the Labour Proclamation, the expression “forced labour” does not include communal services. The Committee has noted that, in its latest report, the Government refers in this connection to various micro dams, roads and forestation programmes, which have been completed over the past 16 years.

The Committee recalls that Article 2(2)(e) of the Convention exempts from its provisions “minor communal services of a kind which, being performed by the members of the community in the direct interest of the said community, can therefore be considered as normal civic obligations incumbent upon the members of the community, provided that the members of the community or their direct representatives shall have the right to be consulted in regard to the need for such services”. Referring also to the explanations provided in paragraphs 65–66 of its General Survey of 2007 on the eradication of forced labour, the Committee draws the Government’s attention to the following criteria which determine the limits of this exception and serve to distinguish it from other forms of compulsory services which, under the terms of the Convention, must be abolished (such as forced labour for general or local public works):

–      the services must be “minor services”, i.e. relate primarily to maintenance work and – in exceptional cases – to the erection of certain buildings intended to improve the social conditions of the population of the community itself (a small school, a medical consultation and treatment room, etc.);

–      the services must be “communal services” performed “in the direct interest of the community”, and not relate to the execution of works intended to benefit a wider group;

–      the “members of the community” (i.e. the community which has to perform the services) or their “direct” representative (e.g. the village council) must “have the right to be consulted in regard to the need for such services”.

The small scale of such works must also be reflected in their short duration, which should be such as to make these services really “minor”.

The Committee therefore requests the Government to describe the measures, taken or envisaged, in order to ensure full compliance with the Convention on this point, both in legislation and in practice. Pending the adoption of such measures, please continue to describe such communal services programmes, supplying copies of relevant provisions and indicating, in particular, whether the members of the community or their direct representatives have been consulted in regard to the need for such services.

Article 25. Penal sanctions. The Committee previously noted the provision of section 9 of the Labour Proclamation, according to which an employer who engages in forced labour shall be punishable under the Penal Code. It has also noted the Government’s statement in its latest report that the new Penal Code now under elaboration will provide adequate penalties for the violation of the provisions of the Convention. Recalling that Article 25 of the Convention requires that the penalties imposed by law for the illegal exaction of forced or compulsory labour should be really adequate and strictly enforced, the Committee reiterates its hope that the new Penal Code will be adopted in the near future and that it will contain provisions giving effect to this Article of the Convention.