Solicitud directa (CEACR) - Adopción: 2005, Publicación: 95ª reunión CIT (2006)

The Committee notes the Government’s reply to its previous direct request, as well as the legislative texts communicated by the Government with its report.

Article 2(2)(a) of the Convention. The Committee notes the Government’s statement in the report, with reference to section 5 of the Botswana Defence Force Act (Cap. 21:05), that the Defence Force shall be charged with the defence of Botswana and cannot be used for any other purpose than military ends. However, according to the same section of the Act, the Defence Force may be also charged with such other duties as may, from time to time, be determined by the President. The Committee would appreciate it if the Government would describe such "other duties", indicating in particular what guarantees are provided to ensure that services exacted for military purposes are used for purely military ends, as requested by the report form under this Article of the Convention.

Article 2(2)(c). The Committee notes that, under section 94 of the Prisons Act (Cap. 21:03), a prisoner may be employed outside a prison under the immediate order and for the benefit of a person other than a public authority. The Committee recalls that Article 2(2)(c) expressly prohibits that convicted prisoners are hired to or placed at the disposal of private individuals, companies or associations, in a sense that the exception from the scope of the Convention provided for in this Article for compulsory prison labour does not extend to work of prisoners for private employers, even under public supervision and control.

The Committee draws the Government’s attention to the fact that, under this provision of the Convention, work or service exacted from any person as a consequence of a conviction in a court of law is excluded from the scope of the Convention only if two conditions are met, namely: (i) that the said work or service is carried out under the supervision and control of a public authority; and (ii) that the said person is not hired to or placed at the disposal of private individuals, companies or associations. The Committee has always made it clear that the two conditions are cumulative and apply independently, i.e. the fact that the prisoner remains at all times under the supervision and control of a public authority does not in itself dispense the Government from fulfilling the second condition, namely that the person is not hired to or placed at the disposal of private individuals, companies or associations.

The Committee refers in this connection to the explanations given in paragraphs 128-143 of its general report to the 89th Session of the International Labour Conference (2001) and in points 5-11 of its 2001 general observation under the Convention, where it pointed out that it is only when work or service is performed in conditions approximating a free employment relationship that work by prisoners for private companies can be held compatible with the explicit prohibition of the Convention. This necessarily requires the formal consent of the persons concerned, as well as further guarantees and safeguards covering the essential elements of a free labour relationship, such as wages and social security, etc.

The Committee therefore hopes that the necessary measures will be taken, both in law and in practice, to ensure that any work or service by prisoners for private persons is performed in conditions approximating a free employment relationship, including the formal consent of the prisoners concerned, as well as - given the absence of alternative access to the free labour market - further guarantees and safeguards covering the essential elements of a free labour relationship, as referred to above. Pending the adoption of such measures, the Committee requests the Government to supply specimen copies of agreements concluded between prison authorities and private users of prison labour, as well as information concerning conditions of work of prisoners for private employers, including copies of prescribed earnings schemes to which reference is made in section 95 of the Prisons Act.