Demande directe (CEACR) - adoptée 1996, publiée 85ème session CIT (1997)

The Committee notes that the Government's report contains no reply to previous comments. It hopes that the next report will include full information on the following matters raised in its previous direct request:

The Committee recalls that its comments relate to certain provisions of the Swaziland Administration Act, No. 79 of 1950:

1. The Committee observed that under section 10(1)(p) of the Swaziland Administration Act, orders may be issued requiring any Swazi to cultivate land to such extent and with such crops as will secure an adequate supply of food for his support and that of his dependents. The Government stated in this connection that the food produced remains the worker's property, that the provision is used as a method of precaution against deficiency of food supplies and that it reflects a long-standing custom, under which the food thus produced is used by the chief, who has responsibility to ensure his people have enough food, and at times by the community.

The Committee observed that on condition that the food remains the property of the individual, Article 19 of the Convention authorizes recourse to compulsory cultivation, but only as a method of precaution against famine or a deficiency of food supplies. The Committee noted however that while section 11 of the Swaziland Administration Act No. 79 of 1950 is limited in scope to such cases of emergency, section 10(1)(p) is not. The Committee likewise noted that while the powers of chiefs are limited under section 11 of the Act to cases when "there is or is likely to be such shortage of food that famine exists or is likely to ensue", no such limitations are provided for regarding orders made under section 10(1)(p).

Having regard also to the actual practice mentioned by the Government, the Committee expressed the hope that the necessary measures would be taken to bring legislation into conformity with the Convention on this point. The Committee suggested in this relation that the Government might envisage 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" and insert after the world "food" the words: "which will remain his property" (having regard to the custom referred to by the Government that the supply of food produced remains the worker's property).

The Committee expresses the hope that the review of legislation will also take into consideration the Swaziland Administration Act and that the Government will be in a position to indicate in its next report the amendments made.

2. The Committee 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 as well as to section 10(1)(u) providing for the making, maintenance and protection of roads.

The Government has indicated in 1982 that steps were being taken to amend section 10(1) of the Act. In 1987 the Government stated that section 10(1)(q) was being used to prevent soil erosion and to encourage people to engage in agriculture, considered 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, known as "EKHAYA" Policy, was declared in 1985, and had met with a good response among some of those previously unemployed in towns. As regards section 10(1)(u) of the Act, the Government stated that it had been used after a case of natural calamity in 1984.

While taking note of these explanations the Committee pointed out that sections 10(1)(q) and 10(1)(u) are not limited to the exceptions regarding minor communal services and emergency work as defined in Article 2, paragraphs 2(e) and 2(d), of the Convention: 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, 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 sections 10(1)(q) nor 10(1)(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 that section 10(1)(q) had been used since 1985 to transfer persons previously unemployed in towns to agricultural work with a view to reducing dependence on food imports. The Committee pointed out, referring also to point 1 above, that compulsory labour for such purposes was not compatible with the Convention.

The Committee expressed the hope that the Government would henceforth rely on free labour for agricultural production as well as for the building, maintenance and protection of roads benefiting a wider group that a local community, and that sections 10(1)(q) and 10(1)(u) of the Swaziland Administration Act, would be amended to ensure observance of the Convention. Noting the Government's statement that steps were being taken to insert consultation requirements as in section 144(4) of the Employment Act into the Swaziland Administration Act, the Committee expressed the hope that the requirements of Article 2, paragraph 2(e), of the Convention regarding the minor nature of the work and its local purview would likewise be embodied.

The Committee again expresses the hope that the Government will indicate the measures taken and report on the amendments made.

The Committee also hopes that the Government will indicate the manner in which the "EKHAYA" Policy is being implemented.