Demande directe (CEACR) - adoptée 1991, publiée 78ème session CIT (1991)

With reference to its previous direct request, the Committee notes the Government's statement in its report that there has been no change. The Committee expresses the hope that the Government will soon report on progress made concerning the following matters raised previously.

1. In comments made for several years, the Committee observed that under section 10(1)(p) of the Swaziland Administration Act, No. 79 of 1950, orders may be issued requiring any Swazi to cultivate land to such an extent and with such crops as will secure an adequate supply of food for his support and that of his dependants. The Committee noted the Government's statement that under section 10(1)(p) of the Swaziland Administration Act, the adequate supply of food produced remains the worker's property. The Committee observed that on condition that the food remains the property of the individual, Article 19 of the Convention authorises recourse to compulsory cultivation but only as a method of precaution against famine or a deficiency of food supplies; while section 11 of the Swaziland Administration Act, No. 79 of 1950, is limited in scope to such case of emergencies, section 10(1)(p) is not.

In its report for the period ending June 1987 the Government stated that section 10(1)(p) is used as a method of precaution against deficiency of food supplies. While reaffirming that under the terms of this provision the food remains the property of the individual, the Government added that the provision reflects long-standing custom, under which the food thus produced is used by the chief, who has a responsibility to ensure his people have enough food, and at times by the community.

The Committee took note of these indications. It observed that, while powers of chiefs under section 11 of the Swaziland Administration Act are limited to cases when "there is or is likely to be such shortage of food that a famine exists or is likely to ensue", no such limitation is provided regarding orders made under section 10(1)(p) of the Act. The Committee accordingly hopes that, having regard also to actual practice as mentioned by the Government, the necessary measures will be taken to bring the legislation into conformity with the Convention on this point, e.g. by inserting at the beginning of section 10(1)(p) the words "when there is or is likely to be such shortage of food that a famine exists or is likely to ensue -". Having regard also to the custom referred to by the Government, it appears furthermore necessary to clarify the ownership of the food produced, e.g. by inserting in section 10(1)(p), after the word "food" the words: "which will remain his property". The Committee hopes that the Government will be in a position to indicate in its next report the amendments made.

2. The Committee previously also referred to section 10(1)(q) of the Swaziland Administration Act, under which orders may be issued to be obeyed by Swazis, preventing soil erosion and for the protection and construction of anti-soil erosion work, and to section 10(1)(u), providing for the making, maintenance and protection of roads. The Committee had expressed the hope that these provisions would be amended so as to restrict orders to minor communal services falling within Article 2, paragraph (2)(e), of the Convention, and the Government had indicated in its report received in 1982 that steps were being taken to amend section 10(1) of the Act.

In its report for the period ending 30 June 1987, the Government stated that section 10(1)(q) of the Swaziland Administration Act is being used to prevent soil erosion and to encourage people to engage in agriculture, which it considers as minor communal services forming part of normal civic obligations, given the shortage of home-produced food. The Government added that this policy of encouragement, which is known as "EKHAYA" Policy, was declared in early 1985, has met with a good response among some of those previously unemployed in towns, and is designed in particular to reduce dependence on food imports from South Africa. As regards section 10(1)(u) of the same Act, the Government stated that it was used particularly after a cyclone in 1984, i.e. a case of natural calamity under Article 2, paragraph (2)(d), of the Convention, but that recourse to this provision has since dropped off.

The Committee took note of these indications. It pointed out, however, that the present wording of section 10(1)(q) and (u) of the Swaziland Administration Act is not limited to the exceptions regarding minor communal services and emergency work, as defined in Article 2, paragraph 2(e) and (d), of the Convention. As the Committee explained in paragraph 37 of its 1979 General Survey on the Abolition of Forced Labour, the scope of Article 2, paragraph (2)(e), is limited by three criteria:

- 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; and

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

None of these limitations is embodied in section 10(1)(q) and (u) of the Act, since the level and magnitude of the services imposed are not limited; orders under section 10(1) may be issued at the national level by the King in Council and enforced against the opposition of the area chief (section 12), and consultation of the local community or its representatives is not required. Similarly, neither section 10(1)(q) nor (u) are limited in scope to emergency work required in circumstances that would endanger the existence or well-being of the whole or part of the population.

As regards actual practice, the Committee noted from the Government's report that section 10(1)(q), although formally limited to anti-erosion work has been used since 1985 to transfer persons previously unemployed in towns to agricultural work with a view to reducing dependence on food imports. Referring also to the explanations in point 1 above, the Committee must point out that compulsory labour for such purposes is not compatible with the Convention.

Having regard to the Government's assurances that its policy has met with a good response from those concerned, the Committee trusts that the Government will henceforth rely on free labour for agricultural production as well as for the building, maintenance and protection of roads benefiting a wider group than a local community, and that section 10(1)(q) and (u) of the Swaziland Administration Act will be amended, as announced by the Government in 1982, so as to ensure observance of the Convention. In this connection the Committee noted with interest the Government's statement that steps are being taken to insert consultation requirements as in section 144(4) of the Employment Act into the Swaziland Administration Act, and hopes that the requirements of Article 2, paragraph (2)(e), of the Convention regarding the minor nature of the work and its local purview will likewise be embodied.

The Committee requests the Government to indicate in its next report the measures taken to this effect and also to supply details on the manner in which the "EKHAYA" Policy is being implemented, indicating the number of people involved, their home towns or areas and places of affectation, and their rights and duties.