Demande directe (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

The Committee takes note of the Government’s succinct first report, and requests it to supply further information on the following points.

Article 3 of the Convention. Worst forms of child labour. Clause (a). All forms of slavery or practices similar to slavery. 1. Slavery, sale and trafficking of children and forced or compulsory labour. The Committee notes that article 6, paragraphs (1) and (2), of the Constitution provide that no person shall be held in slavery or servitude and prohibit forced labour. Regarding slavery, the Committee observes that under section 260 of the Penal Code, anyone who detains a person, as a slave against his/her will is guilty of an offence. Section 261 of the Penal Code also states that anyone who buys, sells, or disposes of a person as a slave, or who traffics or deals in slaves is guilty of an offence. The Committee also notes that, by virtue of section 256 of the Penal Code, anyone who kidnaps or abducts a person to subject him/her to grievous harm, or slavery or to the unnatural lust of any person, is guilty of an offence. The Committee observes that section 250 of the Penal Code defines a kidnapper as a person who conveys any person beyond the limits of Botswana without the consent of that person, or without the consent of some person legally authorized to consent on behalf of that person. According to section 252 of the Penal Code, abduction means any person who by force compels, or by any deceitful means induces, a person from any place. The Committee further observes that section 71 of the Employment Act, 1982, states that any person who exacts or imposes forced labour or causes or permits forced labour to be exacted or imposed for his/her benefit or for the benefit of any other persons shall be punished by a fine of 2,000 pula and to imprisonment for 18 months. It also notes that under section 262 of the Penal Code, any person who unlawfully compels any person to labour against the will of that person is guilty of an offence. The Committee however notes that none of these provisions specifically apply to children. The Committee accordingly asks the Government to provide information on the practical application of the abovementioned provisions which prohibit slavery, the sale and trafficking of persons, and forced or compulsory labour, to children under 18 years of age.

2. Compulsory recruitment of children in armed conflict. The Committee notes the absence of information in the Government’s report on this point. However, it notes that recruitment in the Botswana Defence Force is on a voluntary basis and that the minimum age for voluntary recruitment into the armed forces is 18. The Committee requests the Government to provide a copy of the Botswana Defence Forces Act of 15 April 1977 and of any other relevant legislation.

Clause (b). 1. The use, procuring or offering of a child for prostitution. The Committee notes that, under section 149(b) of the Penal Code, it is an offence to procure or attempt to procure a girl or a woman under the age of 21 years to become a prostitute either in the country or elsewhere. Pursuant to section 149(d) of the Penal Code, it is an offence to procure or attempt to procure a woman or a girl to leave her usual place of abode in Botswana with the intent that she may, for the purposes of prostitution, become an inmate of or frequent brothels in Botswana or elsewhere. The Committee also notes that section 153(b) of the Penal Code provides that a person who detains any woman or girl against her will in a brothel, is guilty of an offence. Section 158 of the Penal Code further states that any person who keeps or manages or assists in the management of a brothel is guilty of an offence. The Committee notes that most of the sexual offences provisions in the Penal Code refer to girls, and there do not appear to be any similar provisions protecting boys. The Committee recalls that under Article 3(b) of the Convention the use, procuring or offering of a child for prostitution refers to all persons (boys and girls) under 18 years of age. The Committee consequently requests the Government to take the necessary measures to secure the prohibition of the use, procuring or offering of both boys and girls under 18 years of age for prostitution.

2. The use, procuring or offering of a child for the production of pornography or for pornographic performances. The Committee notes the absence of information in the Government’s report on this point. The Committee observes that section 178 of the Penal Code provides that a person who makes, produces, imports, conveys or possesses obscene pictures, photographs, films, for the purpose of trade or distribution, is guilty of an offence. The Committee observes however, that the provisions of the Penal Code do not appear to prohibit the use, procuring or offering of a child for the production of pornography or for pornographic performances. The Committee reminds the Government that, by virtue of Article 3(b) of the Convention, such an activity is considered to be one of the worst forms of child labour and that under Article 1 of the Convention, each member State which ratifies this Convention shall take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. The Committee accordingly requests the Government to provide information on the measures taken or envisaged to ensure that the use, procuring or offering of both boys and girls under 18 years of age, by anyone, for the production of pornography or for pornographic performances is prohibited, as well as applicable penalties.

Clause (c). The use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs. The Committee notes the absence of information in the Government’s report on this issue. The Committee observes that the Drugs and Related Substances Act, 1992 regulates the manufacturing, import, export or distribution of drugs. However, it observes that no provisions prohibit the use, procuring or offering of a child for the production and trafficking of drugs. The Committee recalls that, by virtue of Article 3(c) of the Convention, such activities are considered to be one of the worst forms of child labour and are therefore prohibited for children under 18 years of age. The Committee asks the Government to provide information on measures taken or envisaged to prohibit the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs, and sanctions envisaged. It also requests the Government to supply a copy of relevant legislation.

Clause (d). 1. Hazardous work. The Committee notes that section 110(1) of the Employment Act, 1982 states that no young persons shall be employed in any work which is harmful to his/her health and development, dangerous or immoral. Section 2(1) of the Employment Act defines a young person as anyone who has attained the age of 15 but is under 18 years of age. The Committee also notes that underground and night works are prohibited for young persons by virtue of sections 108 and 109 of the Employment Act.

2. Self-employed workers. The Committee notes that by virtue of section 110(1) of the Employment Act, children under 18 shall not be employed on any work which is harmful to their health or development, dangerous or immoral. However, the Committee observes that, by virtue of section 2 of the Employment Act, the scope of application of this Act is limited to persons working under an employment contract and domestic employees. The Committee therefore requests the Government to indicate the measures adopted or envisaged to ensure the protection of self-employed workers under 18 years of age against types of work, which, by their nature or the circumstances in which they are carried out, are likely to harm their health, safety or morals.

Article 4, paragraph 1. Determination of hazardous work. The Committee observes that section 110(2) of the Employment Act states that the Commissioner may notify any employer in writing or, by notice published in the Gazette, all employers or every employer belonging to any class or description of employers specified in the notice that the kind of work on which a young person is employed by him or them is harmful to his/her health and development, dangerous, immoral or otherwise unsuitable, and every employer who is so notified shall immediately cease to employ the young person concerned. The Committee also notes the Government’s statement that the types of hazardous work have not been determined yet. The Committee draws the attention of the Government to Article 4, paragraph 1, of the Convention, which provides that the types of hazardous work referred to under Article 3(d) shall be determined by national laws or regulations or by the competent authority, after consultation with the organizations of employers and workers concerned, taking into consideration relevant international standards, in particular Paragraph 3 of the Worst Forms of Child Labour Recommendation, 1999 (No. 190). In this regard, the Committee also draws the Government’s attention to Paragraph 3 of Recommendation No. 190, which provides that in determining the types of such hazardous work, consideration should be given, inter alia, to: (a) work which exposes children to physical, psychological or sexual abuse; (b) work underground, underwater, at dangerous heights or in confined spaces; (c) work with dangerous machinery, equipment and tools, or which involves the manual handling or transport of heavy loads; (d) work in unhealthy environment which may, for example, expose children to hazardous substances, agents or processes, or to temperatures, noise levels, or vibrations damaging to their health; (e) work under particularly difficult conditions such as work for long hours or during the night or work where the child is unreasonably confined to the premises of the employer. The Committee requests the Government to take the necessary measures to determine the types of work to be considered as hazardous in consultation with the organizations of employers and workers concerned, in conformity with Article 4, paragraph 1, of the Convention. In determining the types of work to be considered as hazardous, the Committee trusts that the Government will take into consideration the types of work enumerated in Paragraph 3 of the Worst Forms of Child Labour Recommendation, 1999 (No. 190). The Committee requests the Government to inform it of any developments in this regard.

Paragraph 2. Identification of hazardous work. The Committee notes the absence of information in the Government’s report on efforts made to identify where work that, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children, exists. The Committee draws the attention of the Government to Article 4, paragraph 2, of the Convention, which requires the competent authority, after consultation with the organizations of employers and workers concerned, shall identify where the types of hazardous work exist. The Committee requests the Government to provide information on the measures taken or envisaged to identify where hazardous work exists, in consultation with the organizations of employers and workers concerned.

Article 5. Monitoring mechanisms. The Committee notes the Government’s indication, in its report, that the labour inspectorate will monitor the implementation of the provisions giving effect to this Convention. The Government also states that the organizations of employers and workers were consulted within the tripartite Labour Advisory Board on the establishment of monitoring mechanisms, as provided under section 149 of the Employment Act. The Committee notes that by virtue of section 11 of the Employment Act, the Commissioner or labour officer may enter, inspect and examine any land, building, place where or about which an employee is housed or employed. He/she may question any employer or employee or other person, copy documents or records in possession of an employer regarding matters connected with this Act. The Committee also notes that, by virtue of section 11(4) of the Act, the Commissioner may prohibit the engagement of employees at any place where he/she is satisfied that the conditions therein do not comply with the Act. The Committee asks the Government to provide information on inspections carried out by the labour inspectorate regarding infringements of the national provisions giving effect to the Convention. It also asks the Government to supply copies of reports of the labour inspectorate.

Article 6. Programmes of action to eliminate the worst forms of child labour. The Committee notes the Government’s statement, in its report, that no programmes of action to eliminate the worst forms of child labour have been designed as yet. The Committee reminds the Government that Article 6 of the Convention requires ratifying member States to take measures to design and implement programmes of action to eliminate as a priority the worst forms of child labour and that Article 1 requires the Government to take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. The Committee accordingly requests the Government to urgently design and adopt the necessary programmes of action, in consultation with workers’ and employers’ organizations and taking into account the views of other concerned groups, to ensure that the worst forms of child labour do not exist or arise in Botswana.

Article 7, paragraph 1. Penalties. The Committee takes note of the absence of information in the Government’s report on the penalties applicable for violations of provisions giving effect to the Convention. The Committee notes however, that the Employment Act, 1982 and the Penal Code provide for penalties in case of violations of its provisions. For instance, section 260 of the Penal Code states that anyone who detains a person as a slave, is liable to imprisonment for a term not exceeding five years. According to section 261 of the Penal Code anyone who buys, sells or disposes of a person as a slave, or who traffics or deals in slaves, is liable to imprisonment for a term not exceeding seven years. The Committee also observes that by virtue of sections 71 and 172(d) of the Employment Act, a person who exacts, imposes or permits forced labour is punishable by a fine of 2,000 pula (approximately US$420) and imprisonment for 18 months; he/she is also criminally responsible under section 262 of the Penal Code. It also notes that the procurement of a girl under 21 to become a prostitute in Botswana or elsewhere or to work in a brothel is punished by imprisonment for a term not exceeding two years and/or with a fine (sections 33 and 149 of the Penal Code). Moreover, anyone who employs a young person at night (in contravention of section 109 of the Employment Act) or in any work that is harmful to their health and development, dangerous or immoral (as prohibited under section 110(1) of the Employment Act) is liable to a fine of 1,000 pula and to imprisonment for six months (section 172(b) of the Employment Act). Anyone who employs a young person for night work or for underground work is liable to a fine of 1,500 pula and to imprisonment for 12 months (section 172(c) of the Employment Act). The Committee requests the Government to provide information on the practical application of the penalties laid down in the Employment Act, 1982 and in the Penal Code.

Article 7, paragraph 2. Time-bound and effective measures. The Committee takes note of the Government’s indications on the absence of time-bound and effective measures: (b) providing the necessary and appropriate direct assistance for the removal of children from the worst forms of child labour, and for their rehabilitation and social integration; (c) ensuring access to free basic education; and (e) taking into account the special situation of girls. The Committee requests the Government to supply information on actions taken or envisaged, as required under Article 7(2)(b), (c) and (e) of the Convention. It also asks the Government to provide a copy of the legislative measures regulating basic education.

Clause (a). Preventing the engagement of children in the worst forms of child labour. The Committee observes that, according to the Ministry of Education’s annual report on education of 1999, the 1994 Revised National Policy on Education improved access to education at the primary level. Indeed in 1993, 85 per cent of children aged 6 to 12 enrolled in primary education. In 1999, this enrolment rate increased to 89 per cent. For children aged 7 to 13 years the enrolment rate was 95 per cent in 1993 and reached 99.5 per cent in 1999. However, the Committee notes that, according to the abovementioned report, approximately 87 per cent of pupils in primary education dropped out of school in 1999. The Committee asks the Government to provide information on the measures taken or envisaged to ensure that children enrolled in primary education do not drop out of school.

Clause (d). Identifying and reaching out to children at special risk. The Committee notes that according to the United Nations Development Programme (UNDP), HIV prevalence rate is 36 per cent for persons aged between 15 and 49 years old. By 2010, 20 per cent of all children are projected to be orphans. It takes due note that the Government and UNDP signed the HIV/AIDS Programme Support Document in June 1997. The programme was later evaluated in 1999 and extended for completion in 2002. The Committee observes that the pandemic of HIV/AIDS has consequences on orphans who might more easily engage in the worst forms of child labour. The Committee requests the Government to provide information on measures envisaged or taken to address the situation of these children.

Article 8. The Committee notes that Botswana is a member of Interpol which helps cooperation between countries in the different regions especially in the fight against trafficking of children. The Committee asks the Government to indicate any steps taken to assist other member States in giving effect to provisions of the Convention through enhanced international cooperation and/or assistance including support for social and economic development, poverty eradication programmes and universal education, in conformity with the requirements of the Convention.

Part III of the report form. The Committee notes the Government’s indication that courts of law have not yet given decisions involving questions of principle relating to the application of the Convention. It asks the Government to supply any court decisions regarding the legislation relevant to the application of the Convention.

Part IV. The Committee requests the Government to provide a general appreciation of the manner in which the Convention is applied in Botswana, including any practical difficulties encountered in the application of the Convention, or any factors which may have prevented or delayed actions against the worst forms of child labour.

Part V. The Committee asks the Government to provide information on the worst forms of child labour, including for example copies or extracts from official documents including inspection reports, studies and inquiries, and information on the nature, extent and trends of those forms of child labour, the number of children covered by the measures giving effect to the Convention, the number and nature of infringements reported, investigations, prosecutions, convictions and penal sanctions applied.