Solicitud directa (CEACR) - Adopción: 2020, Publicación: 109ª reunión CIT (2021)

Convenio sobre las peores formas de trabajo infantil, 1999 (núm. 182) - Somalia (Ratificación : 2014)

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The Committee notes the Government’s first report and the observations of the Federation of Somali Trade Unions (FESTU) received on 1 September 2018.

Article 1 of the Convention. Legal framework. The Government indicates in its report that it has drafted a new Labour Code in 2019, to replace the existing Labour Code of 1972. Section 127 of the draft Labour Code prohibits the worst forms of child labour, which are defined in section 2 of the Code, using the same definition as in the Convention, with the exception of forced or compulsory labour, which is expressly prohibited under section 7 of the Code. The Committee requests the Government to provide information on any progress made regarding the adoption of the draft Labour Code of 2019, and to provide a copy of thereof once adopted.

Article 2. Definition of the term “child”. The Government indicates that Article 29 of the Provisional Constitution of 2012 provides that the word “child” means a person under 18 years of age (paragraph 8). The Government further states that Sharia law does not indicate any specific age at which one is considered an adult. There is a measure of maturity. If the young person is sexually mature, he or she is no longer considered a child. He is then responsible for his own actions and can get married and work. That applies to both sexes and is the general rule in traditional Somali Sharia law, as practised in Somalia.

According to the Report of the UN Secretary-General on Children and armed conflict in Somalia of March 2020, the Committee notes that the regional Constitutions of Puntland and the South-West State set the age of majority at 15 years (S/2020/174, paragraph 64). There is no information regarding the provisions of the other Federal member States in this regard. The Committee requests the Government to ensure that all persons under the age of 18 are considered children, including in the legislations of the Federal member States. It requests the Government to provide information on the progress made in this regard, as well as information on the definition of the term “child” contained in the other regional Constitutions of the Federal member States. The Committee also requests the Government to clarify the status of the Federal Provisional Constitution within the national legal order, in particular whether its provisions prevail over the legislations of the Federal member States and over the customary legal system and Sharia law.

Articles 3 and 7(1). Worst forms of child labour and penalties. Clause (a). All forms of slavery or practices similar to slavery. 1. Sale and trafficking of children. The Government indicates that article 14 of the Provisional Constitution of 2012 provides that a person may not be subjected to trafficking. It also indicates that, in November 2017, Puntland State passed new Penal and Criminal Procedure Codes, criminalizing trafficking in persons.

According to the Government, trafficking of children to Europe and other western countries from Somalia exists, and may result in forced labour and other types of slavery. It further states that cases of trafficking of children have been identified in the South-West State and that the perpetrators have been arrested. Since 2015, the Federal Government has regularly carried out awareness-raising activities to reduce trafficking of children.

In its report to the Committee on the Rights of the Child of October 2019, the Government stated that the Sexual Offences Bill, which is awaiting parliamentary approval, addressed trafficking in persons (CRC/C/SOM/1, paragraphs 161 and 165). Furthermore, the Committee notes that section 127 of the draft Labour Code of 2019 provides that a person who uses a child in any activity constituting one of the worst forms of child labour (including the sale and trafficking of children according to section 2) commits an offence and is liable to a fine or to imprisonment for a term not exceeding 12 months or to both, unless severe penalties are provided for the relevant offence (subsection 11). Given the seriousness of the offence and the dissuasive effect that the penalties should have (see 2012 General Survey on the fundamental Conventions, paragraph 637), legislation providing for the possibility of a fine alone cannot be considered effective. Therefore, the Committee requests the Government to take the necessary measures to ensure that the sale and trafficking of persons, including children, for the purposes of both labour and sexual exploitation, is punishable by sufficiently effective and dissuasive sanctions of imprisonment and not just fines. It also requests the Government to provide information on the number of cases of trafficking of children investigated, prosecuted, convicted, and the penalties imposed, and to indicate under which provisions of its national legislation the perpetrators were punished. Lastly, the Committee requests the Government to supply information on the laws of the Federal member States relating to trafficking of children, as well as information on the adoption of the Sexual Offences Bill, and a copy of the text, once adopted.

2. Slavery, debt bondage, serfdom, forced or compulsory labour. In its report, the Government refers to a study of 2019 conducted by UNICEF entitled “No Mother Wants Her Child to Migrate, Vulnerability of children on the move in the Horn of Africa”, according to which, during the journey, young people may be subjected to forced labour and slavery (page 54 of the report).

The Committee notes that, in its section 455, the Penal Code of 1962 provides that whoever reduces a person to slavery or to similar condition shall be punished with imprisonment from five to 20 years. Section 456 provides for the same penalty for whoever deals or in any manner trades in slaves or persons in a condition similar to slavery. In addition, section 464 provides for a penalty of imprisonment from six months to five years and a fine for whoever forces another to compulsory labour or avails himself of the services of persons forced to compulsory labour, where the act does not constitute a more serious offence.

The Committee also notes that the draft Labour Code of 2019 provides, in its section 7 entitled “Slavery and forced labour and recruitment of children into the armed forces”, that forced or compulsory labour is forbidden in any form (subsection 1), and that no person is permitted to assist any other person to recruit, traffic or use forced or compulsory labour (subsection 2). A person convicted under this section is liable to a fine or to imprisonment for a term of not less than three years and not exceeding ten years or to both (subsection 4). The Committee observes that, according to this provision, a person committing the offence of forced labour and slavery may be sentenced to a fine only, which does not constitute a sufficiently dissuasive penalty. The Committee requests the Government to provide information on the application in practice of sections 455, 456 and 464 of the Penal Code regarding slavery and forced or compulsory labour of children under 18 years of age, including the number of investigations, prosecutions and penalties imposed. It also requests the Government to ensure that the draft Labour Code, once adopted contains sufficiently dissuasive penalties of imprisonment for the offence of forced labour and slavery.

Clause (b). Use, procuring or offering of a child for the production of pornography or for pornographic performances. The Government indicates that laws related to the commercial sexual exploitation of children are not sufficient, as the use, procuring and offering of a child for prostitution, pornography, and pornographic performances are not effectively prohibited. However, it underlines that Islamic Sharia and the customary law of the Somali people strongly oppose these practices. In Somalia, child prostitution and the use of children in pornographic performances are practically non-existent.

The Committee notes that section 407 of the Penal Code of 1962 provides for the prohibition of the instigation, aiding and exploitation of prostitution and imprisonment from two months to two years as well as a fine for the perpetrators of such offences. It provides for increased penalties when the act is committed against a person incapable of giving consent (according to section 59, read in conjunction with section 47, a child under the age of 14 is considered as a person incapable of giving consent) or against a person entrusted to the offender for care, education, instruction, supervision, or custody. Section 408 of the Penal Code stipulates that whoever, by violence or threats, compels another to commit prostitution shall be punished with imprisonment from two to six years and with fine; the punishment shall be increased under the same conditions of section 407.

The Committee further notes that, in its report to the Committee on the Rights of the Child of October 2019, the Government indicated that the Sexual Offences Bill, which is awaiting parliamentary approval, defines sexual exploitation, addresses sexual grooming and sex tourism, and provides for penalties for offenders and assistance to victims and witnesses (CRC/C/SOM/1, paragraphs 161 and 165). The Committee trusts that the Sexual Offences Bill will contain provisions prohibiting the use, procuring or offering of a child under 18 years of age for prostitution, for the production of pornography or for pornographic performances, with effective and sufficiently dissuasive penalties, and that it will be adopted in the near future. It requests the Government to provide information on the progress made in this regard. The Committee also requests the Government to provide information on the application in practice of sections 407 and 408 of the Penal Code regarding the use, procuring or offering of a child under 18 years of age for prostitution, including the number of investigations, prosecutions and penalties imposed.

Clause (c). Use, procuring or offering a child for illicit activities, in particular for the production and trafficking of drugs. The Government indicates that children are used for illicit activities, including the selling of drugs. Since 2015, it has conducted awareness-raising activities to protect children from their use in illicit activities.

The Committee notes that there is no provision explicitly prohibiting the use, procuring or offering of a child for illicit activities. However, the draft Labour Code of 2019 provides, in its section 127 on the employment of children, that a person who uses a child in any activity constituting one of the worst forms of child labour (including use, procuring or offering of a child for illicit activities, including the production and trafficking of drugs as defined in the relevant international conventions or treaties, according to section 2) commits an offence and is liable to a fine or to imprisonment for a term not exceeding 12 months or to both, unless severe penalties are provided for the relevant offence (subsection 11). Given the seriousness of the offence and the dissuasive effect that the penalties should have (see 2012 General Survey on the fundamental Conventions, paragraph 637), legislation providing for the possibility of a fine alone cannot be considered effective. Therefore, the Committee requests the Government to include in its legislation provisions which would provide for sufficiently effective and dissuasive sanctions of imprisonment and not just fines for the use, procuring or offering of a child for illicit activities, including the production and trafficking of drugs. The Committee also requests the Government to indicate under which provisions of its national legislation the perpetrators of this offence may be punished, as well as the number of violations reported, of prosecutions conducted and the nature and number of penalties applied.

Clause (d) and Article 4. Hazardous work and determination of hazardous work. The Government indicates that Article 29 of the Provisional Constitution states that no child may perform work or provide services that are not suitable for the child’s age or create a risk to the child’s health or development in any way. The Government further indicates that the list of hazardous work determined under Article 4(1) of the Convention has been periodically examined and monitored. It states that in some instances, child perform hazardous work while working on the street. Since 2015, the Government has conducted regular awareness-raising activities to reduce the exposure of children to hazardous work.

The Committee notes that the existing Labour Code of 1972 states, in its section 90, that the Secretary may, by decree, prescribe the types of work prohibited for children and young persons (subsection 1). Section 110 provides that the labour inspectors shall have powers to give due warning to employers, and to fix a time limit within which the irregularities shall be rectified (subsection 11). Section 144 provides that any person who contravenes the provisions of this Code or regulations made hereunder for which no penalty is specifically provided in this Part, shall be guilty of an offence punishable with imprisonment for a term not exceeding six months or with a fine or with both such imprisonment and fine.

The Committee also notes that the draft Labour Code of 2019 provides, in its section 127, that the employment of a child under 18 years of age must be consistent with the fullest physical and mental development of the child (subsection 2). The minimum age for admission to any type of employment or work which by its nature or the circumstances in which it is carried out is likely to jeopardize the health, safety or moral of children is 18 years (subsection 3). The Minister may authorize employment covered by subsection 3 from the age of 16 years on condition that the health, safety and morals of children concerned are fully protected and that they have received relevant and adequate instructions or training in that type of work (section 128). Section 128 requires the Minister to make regulations declaring any work, activity or contract of employment harmful to the health, safety or morals of a child.

According to section 127 of the draft Labour Code, a person who uses a child in any activity constituting the worst forms of child labour commits an offence, and, if convicted, is liable to a fine or to imprisonment for a term not exceeding 12 months or to both (subsection 11). If a child is killed, becomes disabled, dies or suffers any bodily injury in consequence of his or her employer having contravened any provision of this Chapter, the employer is, in addition to any other penalty, liable to a fine or to imprisonment for a term not exceeding three years or to both (subsection 13). The Committee requests the Government to communicate the list of hazardous types of work determined pursuant to Article 4(1) of the Convention. It trusts that the draft Labour Code of 2019 will be adopted in the near future, and requests the Government to provide information on the progress made in this regard. Lastly, the Committee requests the Government to provide information on the number of violations reported, prosecutions conducted and the nature and number of penalties applied, with regard to hazardous types of work performed by children under the age of 18.

Article 5. Monitoring mechanisms. 1. Somali National Tripartite Consultative Committee (SNTCC). The Government indicates that the Somali National Tripartite Consultative Committee (SNTCC), comprising the Federal Government, Federal member States representatives of labour ministries, and trade unions and employer’s representatives, has been established in order to deal with all labour issues. The Government stresses that the SNTCC has improved social protection and encouraged social dialogue, including for the elimination of the worst forms of child labour. The Committee requests the Government to provide information on the activities of the SNTCC and on their impact in eliminating the worst forms of child labour.

2. Inter-Ministerial Task-Force on Trafficking and Smuggling of migrants and children. The Committee notes that, in its report to the Committee on the Rights of the Child of October 2019, the Government indicated that it has set up the Inter-Ministerial Task-Force on Trafficking and Smuggling of migrants and children at the federal level. The Committee requests the Government to provide information on the activities of the Inter-Ministerial Task-Force on Trafficking and Smuggling of migrants and children and of the impact of these activities in reducing trafficking of children.

3. Coordination mechanism comprising the Panel Ministerial Committee and the Joint steering Committee. The Government indicates that a Panel Ministerial Committee, consisting of the line ministers, including the Ministry of Women and Human Rights Development, Ministry of Justice, Ministry of Internal Security, Ministry of Defence, Ministry of Education, and Ministry of Labour and Social Affairs, meets monthly to discuss and develop policies and directions concerning the protection of children’s rights and the eradication of the worst forms of child labour in Somalia. It also indicates that a Joint steering Committee has been established in 2014 by the Ministry of Women and Human Rights Development, which comprises representatives of the Federal Government, representatives of Federal member States, civil society organisations, national non-governmental organizations as well as United Nations and International Organizations working in the child protection sector.

The Panel Ministerial Committee and the Joint Steering Committee have been structured in a coordination mechanism and programmes have been implemented in this framework for the protection of children. The major activities of this coordination mechanism include reforming the existing policies and laws, monitoring the military bases for the recruitment of children in armed forces, awareness raising to eliminate child labour and providing human rights training to the national Somali army. The Committee requests the Government to continue to provide information on the activities of the coordination mechanism, comprising the Panel Ministerial Committee and the Joint steering Committee, and to provide information on the impact of these activities on the elimination of the worst forms of child labour.

4. Labour inspectorate. According to the Government’s report, the labour inspectorate is weak, resulting in a lack of routine workplace labour inspections. The Committee requests the Government to provide information on the structure and organisation of the labour inspection in Somalia, including the number of labour inspectors as well as the training they undertake, if any. Please also provide information on the potential role of the Federal member States regarding labour inspection. The Committee also requests the Government to supply copies or extracts of inspection reports regarding the monitoring of the worst forms of child labour.

Article 7(2). Effective and time-bound measures. Clause (b). Direct assistance for the removal of children from the worst forms of child labour and for their rehabilitation and social integration. Child victims of trafficking. The Committee notes the absence of information in the Government report on this point. The Committee requests the Government to provide information on any measures taken to identify child victims of trafficking and to ensure their rehabilitation and social integration.

Clause (d). Identifying and reaching out to children at special risk. 1. Street children. The Government indicates that children work in the street (including shining shoes, washing cars, conducting minibuses, vending and/or assisting khat – a plant containing an amphetamine-like stimulant – traders). It further states that it has facilitated the establishment of care centres for street children, in order to minimize their number in the country.

The Committee notes that the Social Protection Policy of the Government of 2019 underlines that orphans and street children are amongst the poorest and most vulnerable children, and that it is important that all social protection schemes be child-sensitive, which would mitigate the effects of poverty on families (page 8). The Committee requests the Government to provide information on the measures taken to protect street children from the worst forms of child labour and to ensure the rehabilitation and social integration of children actually removed from the streets. It also requests the Government to provide information on the number of children living and working on the street identified and provided with direct assistance for their rehabilitation and social integration, including through care centres and social protection measures.

2. Refugees and internally displaced children. The Government indicates that there is a high number of internally displaced persons (IDPs), living in and around the major cities, and estimates that more than 60 per cent of them are children. In Mogadishu and surroundings, it is estimated that there are more than 369 000 IDPs. It also indicates that some parents, particularly in poor and internally displaced families, make their children work to generate income and survive. The Government has initiated several projects to assist and improve the lives of IDPs.

The Committee notes that the Social Protection Policy stresses that IDPs face greater risk of trafficking in persons, and that the social protection system will pay special attention to their needs (pages 9 and 26). The Committee also notes that the Government has developed a National Policy on Refugee-Returnees and Internally Displaced Persons , with a view to protect refugee-returnees, IDPs and host communities, including children. The guiding principles of the policy include protecting displaced persons during displacement, including against sexual exploitation, forced labour, and recruitment and use of children by parties in conflicts (pages 16-17). The policy acknowledges the responsibility of the Federal Government of Somalia and of the Federal member States in creating durable solutions for IDPs and returning refugees, including access to education.

The Committee further notes that, in its report to the Committee on the Rights of the Child of October 2019, the Government indicated that it established the Somalia National Commission for Refugees and IDPs to address the needs of refugees and IDPs (CRC/C/SOM/1, paragraph 296). The Committee requests the Government to provide information on the adoption and implementation of the National Policy on Refugee-Returnees and IDPs, including the activities conducted in this framework to protect displaced children from the worst forms of child labour, and the results achieved in this regard. It further requests the Government to provide information on the measures taken to ensure access to education for internally displaced children. Lastly, the Committee requests the Government to provide information on any other mechanism, including the National Commission for Refugees and IDPs and any mechanism at the Federal member State-level, that has been put in place to protect refugees and internally displaced children from the worst forms of child labour, including in IDPs settlements.

Clause (e). Special situation of girls. The Government indicates that children, mainly girls, are involved in domestic work. Furthermore, the National Employment Policy of 2019 states that young girls are exploited for domestic chores or face sexual and gender-based violence. The Committee requests the Government to provide information on the measures taken or envisaged to take account of the special situation of girls working in domestic service so as to protect them against the worst forms of child labour.

Article 8. Poverty reduction. The Committee notes that the Social Protection Policy aims to build a comprehensive and coherent social protection system (developed for the period 2019 to 2040) that combats poverty and vulnerability in Somalia. It will prevent people from falling into poverty and provide essential support to people who live in poverty.

The Committee also notes that the Federal Government has developed its ninth National Development Plan (NDP-9), for the period 2020–24, which aims at reducing poverty and inequality through inclusive economic growth and employment, improved security and rule of law, and strengthened political stability (page 20). Considering that poverty reduction programmes contribute towards breaking the cycle of poverty, which is essential for eliminating the worst forms of child labour, the Committee requests the Government to supply information on the impact of the Social Protection Policy and the NDP-9 in eliminating the worst forms of child labour.

Application of the Convention in practice. The Government indicates that efforts to eliminate the worst forms of child labour in Somalia have been increasing year after year. Government institutions and social partners work together for the protection of children. The practical difficulties encountered in the application of the Convention include security problems, high levels of poverty, negative public attitudes, drug selling, the economic situation of the country, a lack of political will, and weak law enforcement. The Government further indicates that there is no available information concerning investigations made in the area of the worst forms of child labour in Somalia. It states that law enforcement is the greatest challenge for the implementation of the Convention, as no labour inspector is specifically responsible for it.

The observations of the Federation of Somali Trade Unions (FESTU), received on 1 September 2018, stated that the Government has not taken any meaningful measures to implement the Convention. The Committee requests the Government to provide any information, including copies of studies and reports, on the worst forms of child labour, to enable the Committee to assess developments in relation to the nature, extent and trends of the worst forms of child labour and the number of children protected by the measures giving effect to the Convention.