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

The Committee has noted the Government’s brief report on the application of the Convention.

Article 1(1) and Article 2(1) and (2)(b), (d) and (e) of the Convention. The Committee previously noted the observations on the application of the Convention made in June 1999 and June 2001 by the Swaziland Federation of Trade Unions (SFTU). The SFTU alleged that the new Swazi Administration Order, No. 6 of 1998, which repealed the Swazi Administration Act, No. 79 of 1950, legalized forced labour, slavery and exploitation with gross impunity and gave the Chiefs the right to penalize non-compliance with the Order with fines, imprisonment, demolition without compensation, etc. The SFTU referred, inter alia, to sections 6, 27 and 28 of the 1998 Order, which provide for the duty of Swazis to assist the Ngwenyama and Chiefs; the duty to attend before Ngwenyama, Chiefs and government officers when so directed, under the threat of punishment; and the duty to obey orders requiring participation in compulsory works.

The Committee has noted the Government’s view expressed in the report that participation in the national duties is not a form of forced or compulsory labour, since this is not being done for purpose of financial gain and Swazis offer themselves voluntarily for such services.

However, in its earlier comments the Committee noted that the combination of sections 6, 27, 28(1)(p), (q) and (u) and 34 of the new Swazi Administration Order (No. 6 of 1998) provides for orders requiring compulsory cultivation, anti-soil erosion works and the making, maintenance and protection of roads, enforceable with severe penalties for non-compliance. With reference to the comments it has been making for a number of years concerning the abovementioned Swazi Administration Act, No. 79 of 1950, which contained similar provisions, the Committee observed that provisions of this kind are in serious breach of the Convention. Referring also to paragraphs 36, 37 and 74-83 of its General Survey of 1979 on the abolition of forced labour, the Committee pointed out that, in order to be compatible with the Convention, such provisions should be limited in scope to cases of a calamity or threatened calamity endangering the existence or well-being of the population, or (in case of compulsory cultivation) to circumstances of famine or a deficiency of food supplies and always on the condition that the food or produce shall remain the property of the individuals or the community producing it, or (to fall under the exemption made for minor communal services) to cases where work is limited to minor maintenance and its duration is substantially reduced. Since the above provisions of the 1998 Order are not restricted in application to the circumstances contemplated in Article 2(2)(d) and (e) of the Convention, such as e.g. cases of emergency (fire, flood, famine, earthquake, violent epidemic or epizootic diseases, etc.) or minor communal services, they are incompatible with the Convention.

The Committee therefore urges the Government to take the necessary measures in order to repeal or amend the above provisions of the Swazi Administration Order, 1998, so as to bring legislation into conformity with the Convention. Pending the adoption of such measures, the Committee again requests the Government to provide information on the manner in which these provisions are being applied in practice.