Observación (CEACR) - Adopción: 1992, Publicación: 79ª reunión CIT (1992)

The Committee notes the Government's report and the discussion which took place in the Conference Committee in 1991.

For a number of years the Committee has been commenting on serious discrepancies between national law and practice and the provisions of the Convention.

The Committee referred in particular to provisions of the Local Government (District Authorities) Act, 1982, the Employment Ordinance, 1952, as amended, the Human Resources Deployment Act, 1983, the Penal Code, the Resettlement of Offenders Act, 1969, the Ward Development Committees Act, 1969, and the Local Government Finances Act, 1982, under which compulsory labour may be imposed inter alia by administrative authority, on the basis of a general obligation to work and for purposes of economic development.

As The Government had indicated that it considered the observations by the Committee as valid and that legislation was under revision, the Committee expressed the hope that the Government would provide information on the measures taken to bring national law into conformity with the Convention.

The Committee notes that during the discussion in the Conference Committee in 1991, the Government stated that a new Employment Act, taking into account the Committee's comments, had been drafted and submitted to the Attorney-General's Department and the competent authorities within the Government in May 1991 and was expected to be tabled before the National Assembly by the end of 1991. The Government representative indicated that consultations were also progressing towards amending other provisions of concern.

The Committee notes that the Government's latest report contains no information on any action taken nor does it give any indication on any progress made in amending the legislation.

The Committee refers to article 25, paragraph (1), of the 1985 Constitution of the United Republic of Tanzania under which every person is obliged to voluntarily and honestly participate in lawful and productive work, to observe labour discipline and strive to achieve the individual and communal production targets required or prescribed by law; article 25, paragraph (2), provides that, notwithstanding paragraph 1, there shall be no forced labour in the United Republic. However, according to paragraph (3)(d) of article 25, no work will be considered as forced labour if that work is relief work that is part of compulsory nation-building initiatives, in accordance with the law, or if it is part of national efforts in harnessing the contribution of everyone in the work of developing the society and national economy and ensuring success in development.

The Committee also notes the indications provided by the Government in its report on the application of the International Covenant on Civil and Political Rights according to which the Chama Cha Mapinduzi (CCM) Party Constitution sets out as part of its objectives in article 1, paragraph 5(6), that the CCM seeks to ensure that every able-bodied person works (CCPR/C/42/Add.12 of 26 August 1991).

The Committee has moreover taken note of several by-laws made between 1988 and 1990 under section 148 of the Local Government (District Authorities) Act, 1982, entitled "self-help and community development", "nation building", "enforcement of human resources deployment", "cultivation of agriculture", "planting and maintaining trees". The Committee notes in this regard for example that under the Mwanga District Council Self-help and Community Development by-laws 1989, Government Notice No. 246 of 20 July 1990, "the Council may direct that any kind of development activities be done by all residents in the affected area within the Council or persons with special knowledge"; while no limitation is imposed on the nature of the projects, the intended beneficiaries or the duration of the participation, full-time employees of Government, Council, the Chama Cha Mapinduzi Party, the parastatal organisations and private companies are inter alia exempted from participation. For other residents, participation is mandatory and enforceable through fines and "extortion of property". Such compulsory labour is not necessarily "minor" nor performed "by the members of the community in the direct interest of the said community" and thus is not confined to "minor communal services" under Article 2(2)(e) of the Convention. It is also contrary to Article 1(b) of Convention No. 105, ratified by Tanzania, which prohibits the use of compulsory labour for development purposes.

The Committee cannot but express its concern at the institutionalised and systematic compulsion to work established in law at all levels, from the National Constitution through Acts of Parliament to District by-laws.

The Committee firmly hopes that the Government will reconsider all the provisions contrary to the Convention and that it will report on action taken to repeal or amend the provisions in question. In particular, action is called for on the following points already raised in earlier comments.

Tanzania mainland

General obligation to work. 1. In previous comments the Committee referred to the Human Resources Deployment Act, 1983, which makes provision for the establishment of machinery designed to regulate and facilitate the engagement of all able-bodied persons in productive work. Under section 3 of this Act, every local government authority shall make arrangements to ensure that every able-bodied person over 15 years of age and resident within its area of jurisdiction engages in productive or other lawful employment; for this purpose, the local authority shall establish and maintain registers of employers and of all residents capable of working (sections 13 and 14), and work out a system which will enable the registered employer to utilise the available registered unemployed residents within its area of jurisdiction (section 20). Under section 17 of the Act, arrangements made by the Minister of Labour and Manpower Development are to provide for the transfer to other districts and subsequent employment of unemployed residents, and under section 24, failure to comply with any provision of the Act is punishable with a fine and imprisonment. Referring to the explanations provided in paragraphs 34 to 37 and 45 to 48 of its 1979 General Survey on the Abolition of Forced Labour, the Committee pointed out that legislation obliging all able-bodied citizens to engage in a gainful occupation subject to penal sanctions is incompatible with the Convention.

The Committee again expresses the hope that the necessary measures will rapidly be taken to bring the Human Resources Deployment Act into conformity with the Convention and that the Government will indicate the provisions adopted.

2. The Committee previously noted that the Written Laws (Miscellaneous Amendments) (No. 2) Act, 1983, amended section 176 of the Penal Code by inserting, inter alia, a new paragraph (8), punishing "any able-bodied person who is not engaged in any productive work and has no visible means of subsistence". Noting also that persons chargeable under section 176 of the Penal Code may be subjected to administrative measures under the Human Resources Deployment Act, the Committee requested the Government to supply full information on the application in practice of section 176(8), including any court decisions defining or illustrating its scope and any guidelines followed by administrative authorities in deciding who is chargeable under this provision. The Committee hopes once more that the Government will re-examine section 176(8) of the Penal Code in the light of the Convention and the explanations provided in paragraphs 34 to 37 and 45 to 48 of the 1979 General Survey on the Abolition of Forced Labour, referred to above, and that it will indicate the measures taken or contemplated in this regard to ensure the observance of the Convention.

Compulsory labour for public purposes and development schemes. 3. In comments made over a number of years, the Committee observed that, contrary to the Convention, Part X of the Employment Ordinance permits forced labour to be exacted for public purposes, and section 6 of the Ward Development Committees Act, 1969, gives ward development committees the power to make orders requiring all adult citizens resident in the area of the ward to participate in the implementation of any scheme for agricultural or pastoral development, the construction of works or buildings for the social welfare of residents, the establishment of any industry or the construction of any public utility. The Committee noted previously the Government's indication that the non-conformity of Part X of the Employment Ordinance, and section 6 of the Ward Development Committees Act will be corrected when the new Labour Code under preparation is adopted.

The Committee hopes that the necessary action will soon be taken to bring Part X of the Employment Ordinance and section 6 of the Ward Development Committees Act into conformity with the Convention and that the Government will indicate the provisions adopted to this end.

4. The Committee had previously noted that under paragraph 103 of the first schedule to section 118(4) of the Local Government (District Authorities) Act, 1982, the performance of unpaid communal labour or the payment of compensation in lieu thereof may be required for a wide range of purposes "not barred by the Convention respecting the use of forced labour". Referring to paragraphs 36 and 37 of its 1979 General Survey on the Abolition of Forced Labour, the Committee requested the Government to indicate any measures taken or envisaged to ensure that such a requirement is limited to emergency work required by circumstances endangering the existence or well-being of the population, or to minor communal services - i.e. primarily maintenance work - performed in the direct interest of the local community and not intended to benefit a wider group. The Government indicated previously that in practice the local government legislation was used only for communal works for the benefit of the community, resulting from decisions of the community.

The Committee had, however, noted that by-laws imposing compulsory cultivation on resident landholders had indeed been made by district councils and approved by the national Government and that, under section 148 of the Act, by-laws may be adopted by district councils, subject to the consent of the Minister, for carrying into effect and for the purpose of any of the functions conferred by or under the Act or any other written law.

Referring also to the recent example, mentioned before, of sweeping by-laws made under section 148 of the Act and providing for compulsory labour for development purposes, the Committee hopes that paragraph 103 of the first schedule to section 118(4) of the Local Government (District Authorities) Act, 1982, will be amended so as to remain within the limits of Article 2, paragraph 2(d) and (e), of the Convention, and that measures will also be taken to ensure that no by-laws providing for the imposition of compulsory labour are approved under section 148 of the Act.

5. Compulsory cultivation. The Committee has noted that the Local Government Ordinance and following its repeal, the Local Government (District Authorities) Act, 1982, and section 121(e) of the Employment Ordinance (as amended by Act No. 82 of 1962) empower local authorities to impose compulsory cultivation. By-laws which restrict the production of food crops and oblige resident landholders to cultivate and maintain a fixed area of cash crops, under pain of a fine and improvement have indeed been made by district councils and approved by the national Government.

The Committee trusts that the necessary measures will be taken without further delay to bring the Local Government (District Authorities) Act, 1982 and section 121(e) of the Employment Ordinance, as well as any by-laws made and approved thereunder into conformity with the Convention, and that the Government will indicate the provisions adopted to this end.

6. Article 2, paragraph (2)(c), of the Convention. In previous comments, the Committee noted that sections 4 to 8 of the Resettlement of Offenders Act, 1969, and sections 4 and 17 of the Resettlement of Offenders Regulations, 1969, permit resettlement orders, with an obligation to perform compulsory labour, to be made by administrative decision. In addition, under sections 26 and 27 of the Human Resources Deployment Act, the Minister shall make such arrangements as will provide for a smooth and co-ordinated transfer or any other measure which will provide for the rehabilitation and full deployment of persons chargeable, or previously convicted under sections 176 and 177 of the Penal Code. In its report for the period ending 15 October 1988 the Government stated that since work in the United Republic of Tanzania can only be exacted from a person as a consequence of a conviction in a court of law, it follows, therefore, that no compulsory labour can be imposed by an administrative or non-judicial body. The Committee expresses the hope that the provisions of the Resettlement of Offenders Act, 1969, and the Resettlement of Offenders Regulations, 1969, referred to above, which appear to authorise the imposition of compulsory labour by administrative order will accordingly be amended so as to ensure in law that no compulsory labour may be imposed on offenders otherwise than as a consequence of a conviction in a court of law, and that the Government will indicate the action taken to this end.

[The Government is asked to supply full particulars to the Conference at its 79th Session and to report in detail for the period ending 30 June 1992.]