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

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 reads as follows:

Article 1 of the Convention. Measures taken to secure the prohibition and elimination of the worst forms of child labour. The Committee notes the Government’s statement, in its report, that the Ministry of Labour conducted a Namibia Child Activities Survey in 1999 with financial and technical support from the ILO and UNICEF. The objective of the survey was to provide baseline data on the activities of the child population in Namibia for planning, policy formulation and the implementation of government development programmes. It notes the Government’s indication that the findings of the survey were disseminated throughout the country by means of three workshops. During the workshops the participants were briefed on ILO Conventions Nos. 138 and 182. However, the Committee notes that the survey was not designed to measure the worst forms of child labour, other than on a number of hazardous forms. The Committee asks the Government to continue providing a general overview of the immediate and effective measures taken or envisaged to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency.

Article 2. Definition of a child. The Committee notes the absence of information in the Government’s report on this point. However, it observes that the law does not provide for a comprehensive and unique definition of a child. Thus it observes that article 15(2) of the Constitution states that children under the age of 16 years are entitled to be protected from economic exploitation, and that section 42(a) of the Labour Act fixes a general minimum age for admission to employment of 14 years. Section 42(b)(i) of the Labour Act prohibits the employment of children between the ages of 14 and 15 years from working in or on any mine or other work performed with a view to mining or winning, or prospecting for, any minerals; and in other specific activities listed therein. Section 42(c) of the Labour Act also prohibits the employment of any child between the ages of 15 and 16 years in an underground mine. Recalling that, under this Article of the Convention, the term "child" shall apply to all persons under the age of 18, the Committee requests the Government to take the necessary measures to harmonize the provisions of its legislation and to ensure that the term "child" shall apply to all persons under 18 years of age for the purposes of the Convention.

Article 3. Worst forms of child labour. Clause (a). 1. Forced or compulsory labour. The Committee observes that article 9 of the Constitution prohibits anyone from being held in "slavery or servitude", as well as forced labour. It further notes that section 108(1) of the Labour Act states that any person who causes, permits, or requires any other person to perform forced labour shall be guilty of an offence and be liable for the penalties which may be imposed by the law for abduction. It observes that under section 108 of the Labour Act, there is a special reference to children. Thus any work performed by a child under the age of 18 years for an employee of an employer in terms of any arrangement or scheme in any undertaking, who is for any reason required to perform such work in the interest of such employer is considered as forced labour under section 108(2)(b) of the Labour Act. The Committee requests the Government to provide information on penalties for violations of the law for abduction and the manner in which the prohibitions of slavery and forced labour of article 15 of the Constitution and section 108 of the Labour Act are applied in practice.

2. Sale and trafficking of children. The Committee notes the absence of information in the Government’s report on the sale and trafficking of children. The Committee recalls that, by virtue of Article 3(c) of the Convention, such activities are considered to be one of the worst forms of child labour and are therefore prohibited for children under 18 years of age. The Committee asks the Government to provide information on measures taken or envisaged to prohibit the sale and trafficking of children, and sanctions envisaged. It also requests the Government to supply a copy of relevant legislation.

3. Armed conflict. The Committee notes the absence of information in the Government’s report on the forced recruitment of children for armed conflict. The Committee asks the Government to provide information on legislation regulating the enlisting in military service and recruitment in armed conflict. It also requests the Government to supply a copy of relevant legislation.

Clause (b). 1. The use, procuring or offering of a child for prostitution. The Committee notes the absence of information in the Government’s report on this issue. However, it observes that the Sexual Offences Act No. 23 of 1957, seems to prohibit prostitution, the keeping of a brothel and the act by which a woman or a girl is procured to become a prostitute. The Committee asks the Government to provide a copy of the Sexual Offences Act, No. 23 of 1957 and to provide information on the application of this text in practice.

2. The use, procuring or offering of a child for the production of pornography or for pornographic performances. The Committee notes the absence of information in the Government’s report on this issue. However it observes that section 14 of the Combating of Immoral Practices Act, 1980, seems to prohibit a male from soliciting or enticing a girl to commit an immoral or indecent act and provides for sanctions. The Committee requests the Government to provide information on the definition of an immoral and indecent act and whether a similar provision exists for boys. It also asks the Government to provide a copy of the Combating of Immoral Practices Act, 1980, and any other relevant legislation prohibiting the use, procuring or offering of a child for the production of pornography or for pornographic performances.

Clause (c). The use, procuring or offering of a child for illicit activities. The Committee notes the absence of information in the Government’s report on the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs. The Committee recalls that, by virtue of Article 3(c) of the Convention, such an activity is considered to be one of the worst forms of child labour and is therefore prohibited for children under 18 years of age. The Committee asks the Government to provide information on measures taken or envisaged to prohibit the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs, and sanctions envisaged. It also requests the Government to supply a copy of relevant legislation.

Clause (d), and Article 4, paragraph 1. Hazardous work. The Committee notes the Government’s indication, in its report that, according to article 15(3) of the Constitution, children under the age of 14 years shall not be employed in factories or mines, save under the conditions and circumstances regulated by Act of Parliament. It also observes that article 15(2) of the Constitution provides that children are entitled to be protected from economic exploitation, and shall not be "employed in or required to perform work that is likely to be hazardous or to interfere with their education, or to be harmful to their health or physical, mental, spiritual, moral, or social development". The Committee observes that the Constitution defines "children" as those under the age of 16 years. The Committee reminds the Government that, by virtue of Article 4, paragraph 1, of the Convention, the types of hazardous work referred to under Article 3(d) shall be determined by national laws or regulations or by the competent authority, after consultation with the organizations of employers and workers concerned, taking into consideration relevant international standards, in particular Paragraphs 3 of the Worst Forms of Child Labour Recommendation (No. 190), 1999. In this regard, the Committee draws the Government’s attention to Paragraph 3 of the Worst Forms of Child Labour Recommendation No. 190, which provides that in determining the types of such hazardous work, consideration should be given, inter alia, to: (a) work which exposes children to physical, psychological or sexual abuse; (b) work underground, under water, at dangerous heights or in confined spaces; (c) work with dangerous machinery, equipment and tools, or which involves the manual handling or transport of heavy loads; (d) work in an unhealthy environment which may, for example, expose children to hazardous substances, agents or processes, or to temperatures, noise levels, or vibrations damaging to their health; (e) work under particularly difficult conditions such as work for long hours or during the night or work where the child is unreasonably confined to the premises of the employer. The Committee notes that the national legislation does not seem to prohibit the employment of persons under 18 years of age in 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 therefore requests the Government to indicate the steps taken or envisaged to determine the types of work to be considered as hazardous in consultation with the organizations of employers and workers concerned, in conformity with Articles 3(d) and 4 of the Convention. In determining the types of work to be considered as hazardous, the Committee trusts that the Government will take into consideration the types of work enumerated in Paragraph 3 of the Worst Forms of Child Labour Recommendation, No. 190. The Committee requests the Government to inform it of developments in this regard.

Paragraph 2. Identification of hazardous work. The Committee notes the Government’s statement, in its report, that the Namibia Child Activities Survey, 1999 identifies where work that, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children, exists. The Committee notes that the Survey provides information on the types of activity or work performed by children but does not provide information on where work likely to harm the health, safety or morals of children exists. The Committee reminds the Government that according to Article 4, paragraph 2 of the Convention, the competent authority, after consultation with the organizations of employers and workers concerned, shall identify where the types of hazardous work exist. The Committee requests the Government to provide information on the measures taken or envisaged to identify where hazardous work exists, in consultation with the organizations of employers and workers concerned.

Article 5. Monitoring mechanisms. 1. The Committee notes the Government’s indication, in its report, that the Ministry of Labour (Directorate of Labour Services and the Office of the Labour Commissioner) is responsible for monitoring the implementation of the national legislation giving effect to the Convention. The Government also indicates that the Directorate has a system of labour and safety inspections decentralized throughout the country; inspectors carry out routine and follow-up inspections to ensure the implementation of the Labour Act. The Committee asks the Government to provide information on the inspections carried out by the Labour Inspectorate regarding infringements of the national provisions giving effect to the Convention. It also asks the Government to supply reports or documents drafted by the Labour Inspectorate.

2. The Committee notes that the Ministry of Labour and Human Resources Development appointed a "Commission of Inquiry into Labour Related Matters affecting Agricultural Employees and Domestic Employees". It notes that the Commission of Inquiry is in charge of reporting and making recommendations related to the employment of children contrary to the provisions of article 15 of the Namibian Constitution. The Committee asks the Government to provide information on the findings of this Commission of Inquiry with regard to the worst forms of child labour.

Article 6. Programmes of action to eliminate the worst forms of child labour. The Committee notes the Government’s statement, in its report, that, due to the absence of the worst forms of child labour in Namibia, it does not need to design any special programmes to eliminate them. The Committee reminds the Government that even where the worst forms of child labour appear to be non-existent, the Convention requires ratifying member States to take measures to determine whether such forms of child labour exist and to ensure that they will not arise in the future. In this context, the Committee requests the Government to indicate what steps it envisages, in consultation with workers’ and employers’ organizations and taking into account the views of other concerned groups, to ensure that the worst forms of child labour do not exist or arise in Namibia.

Article 7, paragraph 1. Sanctions. The Committee notes the Government’s statement that penal and other sanctions are not considered as necessary since the worst forms of child labour do not exist in Namibia. The Committee nonetheless observes that for the employment of children contrary to section 42 of the Labour Act, section 44 of the Labour Act provides for the powers of the district labour court in case of contraventions and failure to comply. Upon receipt of a complaint, the district labour court may issue an order to the employer to discontinue the employment of the child in question to the extent specified in the order. It also notes that section 23 of the Labour Act provides that any person who contravenes or fails to comply with an order of the Labour Court or district labour court shall be guilty of an offence and on conviction be liable to the penalties which may by law be imposed for contempt of court. The Committee notes that article 25 of the Constitution provides that those who have constitutional claims related to the violation of child labour rights may approach the Namibian courts and/or an ombudsman for assistance or relief. Regarding the sanctions applicable to the use, procuring or offering of a child for prostitution or pornography, the Committee requests the Government to provide a copy of the Penal Code, the Sexual Offences Act and the Combating Immoral Practices Act, in order to assess penalties regarding these offences. The Committee also requests the Government to provide information on the applicable sanctions for violations of section 42 of the Labour Act.

Paragraph 2. Time-bound measures. The Committee takes note of the absence of information in the Government’s report on the existence of time-bound and effective measures: (a) preventing the engagement of children in the worst forms of child labour; (b) providing the necessary and appropriate direct assistance for the removal of children from the worst forms of child labour, and for their rehabilitation and social integration; and (e) taking into account the special situation of girls. The Committee requests the Government to supply information on actions taken or envisaged, as required under Article 7(2)(a), (b) and (e) of the Convention, to prevent the potential occurrence of the worst forms of child labour and assist the removal and rehabilitation of children from the worst forms of child labour.

Clause (c). Access to free basic education. The Committee notes that according to the report of the Ministry of Basic Education, Sport and Culture of July 2001 on the development of education, 91 per cent of children aged 7 to 13 were enrolled in school, and that the enrolment rate decreased to 45.5 per cent for children aged 14 to 18. The Committee notes that the Ministry launched, in April 2001, a five-year strategic plan aimed at improving the quality of education, providing primary education to children from marginalized groups, and increasing the efficiency and effectiveness of the educational system. The Committee asks the Government to keep it informed of the findings and measures taken pursuant to the five-year strategic plan on education, especially regarding access to primary education of children from marginalized groups and vocational training for children removed from the worst forms of child labour.

Clause (d). Identifying and reaching out to children at special risk. The Committee observes that the pandemic of HIV/AIDS has consequences on child victims of AIDS and orphans who might more easily engage in the worst forms of child labour. The Committee requests the Government to provide information on measures envisaged or taken to address the situation of these children.

Paragraph 3. Designation of the authority responsible for the implementation of the provisions giving effect to the Convention. The Committee notes that the Labour Inspectorate is the competent authority for the implementation of the national labour legislation related to the worst forms of child labour. The Committee requests the Government to provide information on the body responsible for monitoring the implementation of the Penal Law giving effect to the Convention, especially the Penal Code, the Sexual Offences Act and the Combating Immoral Practices Act.

Article 8. International cooperation. The Committee notes that the Government’s report indicates that the South African Development Community (SADC), of which Namibia is a member, has developed a SADC Draft Code on Child Labour, which is awaiting approval by the member States. The Committee also notes that Namibia is a member of Interpol which helps cooperation between countries in the different regions especially in the fight against trafficking of children. It observes that the Government signed, in 2002, the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution, and child pornography and the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, and ratified ILO Convention No. 29 on forced labour in 2000. The Government’s report also acknowledges that the Namibia Child Activities Survey was created through the financial and technical assistance of UNICEF and the ILO. The Committee asks the Government to continue to indicate any steps taken to assist other member States in giving effect to provisions of the Convention through enhanced international cooperation and/or assistance including support for social and economic development, poverty eradication programmes and universal education, in conformity with the requirements of the Convention. It also requests the Government to provide information on the adoption of a Code on Child Labour by the South African Development Community and to provide a copy of it as soon as it is adopted.

Part IV of the report form. The Committee notes the Government’s indication that it faces difficulties in enforcing the Convention due to a relatively small population and a geographically large country. It makes it difficult for labour inspections to be carried out throughout the country on a regular basis due to the limited resources at the disposal of the Ministry of Labour. The Committee asks the Government to indicate any measures taken or envisaged to facilitate regular labour inspections and encourages it to continue to provide information on any practical difficulties encountered in the application of the Convention, or any factors which may prevent or delay actions against the worst forms of child labour.

Part V. Application in practice. The Committee notes with interest that the Government supplied the Namibia Child Activities Survey of 1999 which provides information and statistical data on child labour. It also notes the Government’s statement, in its report, that inspectors who find employers in violation of the Labour Act inform him/her on how to rectify the problem and then conduct a follow-up visit. The Government’s report also includes a chart entitled "Inspections carried out between 1 April 2003 to 30 June 2003" which indicated that a total of 855 establishments were inspected involving 12,211 workers. Inspections were carried out in agriculture; construction; and the hotel, restaurant and catering services and concerned overtime, work on Sundays and public holidays, payment of remuneration, and annual leave. The Committee would be grateful if the Government could provide information on the worst forms of child labour, including for example copies or extracts from official documents including inspection reports, studies and inquiries, and information on the nature, extent and trends of those forms of child labour, the number of children covered by the measures giving effect to the Convention, the number and nature of infringements reported, and penal sanctions applied.