Demande directe (CEACR) - adoptée 2003, publiée 92ème session CIT (2004)

1. Article 1(a) of the Convention. In its previous comments, the Committee noted that the obligation to work, laid down in section 90 of Decree No. 63-103 establishing the organization and rules of penitentiary establishments, applies to all convicted persons regardless of the nature of the offence for which they were convicted, which means that work may be exacted from prisoners convicted of political offences. In addition, various provisions in the national legislation allow the imposition of prison sentences which may involve the obligation to work in instances covered by Article 1(a) of the Convention, namely:

-  section 169 of the Penal Code of 15 July 1961 under which a prison term of from three to six months may be imposed with respect to insulting an official;

-  sections 54-61 of Act No. 98-23, amending Act No. 97-26 on freedom of the press, which provide for prison terms of varying lengths for libel.

The Committee also noted that, by virtue of sections 2 and 23 of Ordinance No. 84-6 of 1 March 1984 regulating associations, prison terms may be imposed on persons convicted on political grounds. Under section 2, any association founded for a cause or purpose which is contrary to the laws and regulations in force or offends against morality, or for the purpose of breaching the peace or the territorial integrity of the nation, for a purpose which conflicts with the form of government, shall automatically be null and void. Under section 23, whosoever participates in the creation or administration of an undeclared association may be punished by a prison term ranging from one month to one year. Furthermore, section 2 prohibits regional or ethnic associations. The latter are defined as any association the purpose of which is to maintain the particularities of one region or ethnic group in another region and/or any association of Niger nationals from one region who live in another region.

The Committee recalled that the Convention prohibits the use of forced or compulsory labour in any form, including compulsory prison labour, as a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. The protection afforded by the Convention is not limited to activities expressing or demonstrating opinions that differ from established principles. Activities intended to bring about fundamental changes in State institutions are also covered by the Convention provided that they do not involve the use of, or incitement to, violent methods as a means of achieving the ends sought. The Committee also emphasized the importance, for the effective application of the Convention, of legislation guaranteeing freedom of association, of expression, of demonstration and the right to organize, and the direct impact that the restriction of these rights may have on the application of the Convention. Indeed, it is often in the exercise of these rights that political opposition to the established order is expressed.

The Committee notes the information supplied by the Government that no one has been actually convicted for insult of a public official, violation of press laws or the creation of an illegal association. It requests the Government to continue to provide information on the application in practice of the above provisions, including on the number of persons convicted under these provisions and the nature of the sanctions imposed. Please include copies of the relevant court decisions.

2. Article 1(d). With regard to the right to strike of public servants, the Committee noted that, under the terms of section 9 of Ordinance No. 96-009 of 21 March 1996 regulating the exercise of the right to strike of officials of the State and officials of territorial communities, a minimum service shall be guaranteed in vital and/or strategic state services. Officials requisitioned for ensuring the minimum service are bound to provide it. Furthermore, in accordance with the provisions of section 119(2) of the Penal Code, public servants deemed to have abandoned their posts are punished by a prison term ranging from two to five years (as could be the case for public servants who refuse to provide the minimum service and participate in a strike). Having been convicted for participating in a strike, these public servants may thus be subjected to compulsory prison labour. The Committee recalled that the Convention does not prohibit the imposition of sanctions for participating in strikes in the public service or other essential services. Nevertheless, such sanctions should be applied only to essential services in the strict sense of the term, that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population.

Section 2 of Ordinance No. 96-010 of 21 March 1996 sets forth a list of services deemed to be strategic and/or vital. The Committee observed that the list is very long and includes services which, according to the Committee on Freedom of Association, do not constitute essential services in which strikes may be forbidden (paragraph 545 of the Digest of decisions and principles of the Freedom of Association Committee). Such is the case for state media, petroleum provision, banking and finance, public transport and garbage collection.

In its latest report, the Government indicates that, before calling a strike, state officials or their union give prior notice to the competent authorities. During the period of notice, the list of officials requisitioned to provide the minimum service in strategic or vital services of the State is drawn up by the authorities, in collaboration with trade unions. The Government indicates that the list of strategic and/or vital services remains in force but that the regulations governing strikes are in the process of being revised by the Government and employers’ and workers’ representatives.

The Committee notes this information. It hopes that the above process will lead to the amendment of the provisions of section 2 of Ordinance No. 96-010, mentioned above, so as to ensure that the list of services cited as strategic or vital conforms to the criteria of "essential services" in the strict sense of the term (that is services the interruption of which would endanger the life, personal safety or health of the whole or part of the population). The Committee requests the Government in the meantime to provide information on the application in practice of section 9 of Ordinance No. 96-009 regulating the exercise of the right to strike of state officials and officials of territorial communities. It requests the Government to indicate whether requisitioned public officials who refuse to provide the minimum service in a vital or strategic service of the State are deemed to have abandoned their post, within the meaning of section 119(2) of the Penal Code. Please also state whether any public servants have been punished for refusing to provide the minimum service, and indicate the nature of the sanctions imposed.

3. The Committee also requests the Government to provide copies of the legislation governing the defence of the internal and external security of the State and the state of siege.