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

The Committee notes the Government’s first and second reports and requests it to provide information on the following points.

Article 1 of the Convention. Measures adopted to secure the prohibition and elimination of the worst forms of child labour. The Committee notes with interest that Nicaragua signed a new Memorandum of Understanding (MOU) with ILO/IPEC on 15 May 2002, thereby reaffirming its commitment to the elimination of child labour, with emphasis on its worst forms.

Article 3. Worst forms of child labour. (a). 1. Sale and trafficking of children. Under section 203 of the Penal Code, any person is guilty of the offence of trafficking who recruits or otherwise enlists individuals with their consent, or by means of threats, deceit or other similar forms of subterfuge, for the purposes of prostitution, either within or outside Nicaragua, or who brings persons into the country for this purpose. Under section 552 of the Penal Code, any person commits the offence of the "white slave trade" who engages in the international trafficking of women or children for the purposes of prostitution or commercial sex work. While noting that sections 203 and 552 of the Penal Code concern the sale and trafficking of persons for the purposes of sexual exploitation, the Committee reminds the Government that Article 3(a) of the Convention also covers the sale and trafficking of young persons under 18 years of age for the purposes of economic exploitation. It notes that the national legislation does not appear to contain provisions prohibiting this form of exploitation. It therefore requests the Government to provide information on the measures adopted or envisaged to secure the prohibition of the sale and trafficking of young persons under 18 years of age for the purposes of economic exploitation. The Committee also requests the Government to indicate the age limits defining the term "child" used in section 552 of the Penal Code.

2. Debt bondage, serfdom and forced or compulsory labour. Under article 40 of the Constitution, no one may be subjected to servitude. Slavery and trafficking, of any nature whatsoever, are prohibited in all their forms.

3. Forced or compulsory recruitment of children for use in armed conflict. Under article 96 of the Constitution, military service is not compulsory and forced recruitment into the army of Nicaragua is prohibited in all its forms. Under section 79 of the Code of Childhood and Adolescence of 1998, any person found to be responsible for inciting girls, boys and young persons to participate in armed conflict or activities of any nature whatsoever is liable to penal sanctions.

Clause (b) 1. Use, procuring or offering of a child for prostitution. Under section 202 of the Penal Code, the crime of procuring or pimping is committed by any person who: (i) establishes or exploits premises for prostitution or, with a view to profit, makes use of physical or moral violence, abuses her or his authority or position, in a fraudulent manner or by means of any similar subterfuge, so that an individual is engaged in a place of prostitution or obliged to remain there, or to oblige her or him to engage, in any manner whatsoever, in any other form of commercial sexual activities; (ii) with a view to profit or to satisfy the needs of another person, encourages, facilitates or promotes prostitution. Section 67 of the Code of Childhood and Adolescence of 1998 prohibits publicity agencies and media owners, and their workers, from disseminating publicity messages of a commercial, political or other nature making use of girls, boys and young persons, through any medium of social communication whatsoever, to promote prostitution.

2. Use, procuring or offering of a child for the production of pornography or for pornographic performances. Section 67 of the Code of Childhood and Adolescence of 1998 prohibits publicity agencies, media owners and their workers from disseminating publicity of a commercial, political or other nature which makes use of girls, boys and young persons through any medium of social communication whatsoever, to promote child pornography. The Committee notes that section 67 of the Code of Childhood and Adolescence only prohibits publicity agencies, media owners and their workers from using young persons for the purposes of child pornography. The Committee reminds the Government that the prohibition contained in Article 3(b) of the Convention, namely upon the use, procuring or offering of a young person under 18 years of age for the production of pornography or for pornographic performances, covers what is considered to be one of the worst forms of child labour, which is prohibited for all persons. The Committee therefore requests the Government to indicate the measures adopted or envisaged with a view to the prohibition of the use, procuring or offering by anyone of a young person under 18 years of age for the production of pornography or for pornographic performances, in accordance with Article 3(c) of the Convention, and to adopt appropriate sanctions.

Clause (c). Use, procuring or offering of a child for illicit activities. The Committee notes that, under section 71 of Act No. 285 respecting narcotic, psychotropic and other controlled substances, the act of: (a) inciting or exerting pressure on a young person to commit an offence set out in the law; (b) using a young person to commit an offence; or (e) taking advantage of the situation of being an elder relative or of the authority exercised over a young person, all constitute aggravating factors in the determination of penalties. The Committee notes that the offences defined by Act No. 285 include: the internal or international trafficking of drugs (sections 51 and 52), the production of drugs (section 53), the illegal transport of drugs (section 54), the cultivation of drugs (section 55), the storage of drugs (section 56), the production or trafficking of chemical substances (section 57) and the laundering of money (sections 61 and 62).

Article 3(d) and Article 4, paragraphs 1 and 3. Types of hazardous work and revision of the list of the types of hazardous work determined. The Committee notes that under section 133 of the Labour Code, in conjunction with section 136, it is prohibited to cause young persons, girls and boys under 18 years of age to perform types of work which are unhealthy and involve risks for their morals. The Committee also notes that section 74 of the Code of Childhood and Adolescence of 1998 prohibits the performance by young persons (persons of between 13 and 18 years of age) of types of work which are unhealthy or imperil their life, health and physical and moral integrity. Section 133 of the Labour Code and section 74 of the Code of Childhood and Adolescence of 1998 specify certain activities considered to be hazardous, such as work in mines, underground work, the removal of rubbish, work in places of nocturnal entertainment, work involving the handling of toxic objects and substances, and those involving night work in general. The Committee also notes that, under section 16 of the Ministerial Decision respecting health and safety with regard to the maximum weight which may be carried by a worker, of 22 February 2002, young persons under 18 years of age may not be engaged in the manual transport of a load which requires physical effort, nor in work for which the psycho-physical power required is in excess of their strength. Finally, under section 78 of the Ministerial Decision respecting occupational health at the workplace, of 28 July 2000, it is prohibited to cause children and young persons to perform types of work exposing them to chemical, physical and biological pollutants.

The Committee notes the information provided by the Government in its report that the elimination of the worst forms of child labour is one of the priorities set forth in the National Strategic Plan for the progressive elimination of child labour and the protection of young workers (2001-05). It also notes that the Government undertook, when engaged in consultations in the country with a view to the development of the strategic plan, a preliminary identification of activities which, by their nature or the circumstances in which they are carried out, are likely to harm the health, safety or morals of children. The following activities have been identified as a preliminary step: work in rubbish dumps, streets, public spaces, small, medium and large enterprises and agriculture, as well as in the mining, fishing and shellfish sectors, and at the frontiers of the country. The Committee requests the Government to provide a detailed list of activities considered to constitute the newly determined hazardous forms of work.

Article 4, paragraph 2. Identification of where the types of hazardous work exist. The Committee notes that, in addition to the preliminary identification of activities which, by their nature or the circumstances in which they are carried out, are likely to harm the health, safety or morals of young persons, the Government has undertaken the identification in geographical terms of these types of activities.

Article 5. Mechanisms to monitor the implementation of the provisions giving effect to the Convention. The Committee notes that the National Commission for the Progressive Elimination of Child Labour and the Protection of Young Workers (CNEPTI) is the institution which ensures the enforcement of the national and international laws and standards ratified by Nicaragua relating to the prevention and elimination of child labour and the protection of young workers. The Committee also notes that the CNEPTI is composed of the following institutions: the First Lady of the Republic, the Ministry of Labour, the Ministry of Education, Culture and Sports, the Ministry of Health, the Ministry of the Family, the National Council for Integral Care and Protection of Childhood and Adolescence (CONAPINA), the Nicaraguan Institute of Municipal Authorities, the Nicaraguan Institute of Small and Medium-sized Enterprises, the National Institute of Technology, the Nicaraguan Institute for Women, the Special Ombudsperson for Human Rights and the Rights of Children and Young Persons, two representatives of the Higher Council of Private Enterprise (COSEP), three representatives of workers’ organizations and two representatives of NGOs. In addition, UNICEF, ILO/IPEC and an NGO (Save the Children) participate in the activities of the CNEPTI. The CNEPTI is responsible for the implementation of the National Strategic Plan for the progressive elimination of child labour and the protection of young workers (2001-05). The Strategic Plan forms part of a process of the development of a specific public policy for the prevention and elimination of child labour and the protection of young workers. The persons targeted by the plan are girls, boys and young persons performing work determined to constitute the worst forms of child labour and which are prejudicial to their dignity and moral development. Priority is also given to extremely poor families. The Committee requests the Government to provide information on the activities of the CNEPTI, on the mechanisms established in practice for the implementation of the National Strategic Plan and the results achieved.

Article 6. Programmes of action to eliminate the worst forms of child labour. The Committee notes the Government’s information that social and economic policies targeted at the prevention and elimination of child labour and the protection of young workers, in conformity with the National Policy for integral action covering childhood and adolescence, have been formulated with the participation of the various government institutions, employers’ and workers’ organizations and other groups concerned. The Committee also notes that, in the context of these social and economic policies, a Public policy against the commercial sexual exploitation of girls, boys and young persons, and a National Strategy and Plan on Education have been developed. Furthermore, it notes that a series of activities on the theme of the prevention and elimination of child labour have been undertaken by the National Commission for the Progressive Elimination of Child Labour and the Protection of Young Persons (CNEPTI), in collaboration with ILO/IPEC and other institutions.

Article 7, paragraph 1. Penalties. Under section 203 of the Penal Code, any person who commits the crime of the trafficking of persons is liable to a sentence of imprisonment of four years. Under section 552 of the Penal Code, any person found guilty of committing the crime of trafficking for prostitution is liable to a sentence of imprisonment of from three to five years. Section 79 of the Code of Childhood and Adolescence of 1998 provides that persons found responsible for inciting girls, boys and young persons to participate in conflicts or armed acts are liable to penal sanctions. In accordance with section 202 of the Penal Code, any person who commits the offence of procuring or pimping is liable to a sentence of imprisonment of from three to six years. By virtue of Act No. 285 on narcotic, psychotropic and other controlled substances, fines and sentences of imprisonment are envisaged for violations of the various crimes set out in the Act. The fines vary between 1 and 5 million cordobas and sentences of imprisonment vary between five and 20 years. Under section 135 of the Labour Code, violations of the labour rights of girls, boys and young persons shall be punished by a fine of between 500 and 5,000 cordobas. The Committee requests the Government to provide information on the application of these penalties in practice.

Article 7, paragraph 2. Effective and time-bound measures. The Committee notes that the National Strategic Plan for the progressive elimination of child labour and the protection of young persons (2001-05)places emphasises on the three following areas: education, health and the family. It requests the Government to provide information on the implementation of the National Strategic Plan for the progressive elimination of child labour and the protection of young workersand the results achieved.

Clause (a). Prevent children from being engaged in the worst forms of child labour. The Committee notes that the Strategic Plan is intended to: contribute to the development of a national inter-sectoral policy for the prevention and elimination of child labour and the protection of young workers; give priority to the elimination of the worst forms of child labour and contribute to its prevention; and eliminate child labour through the adoption of preventive measures in the fields of health and education, with these measures also applying to parents. The Committee requests the Government to provide information on the measures adopted in the context of the Strategic Plan which prevent children from being engaged in the worst forms of child labour.

Clause (b). Assistance for the removal of children from the worst forms of child labour. The Committee notes that the National Strategic Plan envisages the removal from work of at least 70 per cent of girls, boys and young persons engaged in the worst forms of child labour. The Plan also envisages the prevention of work by girls, boys and young persons in the five biggest rubbish dumps in the country and, at the very least, the removal from their work of 85 per cent of the boys and girls working there. The Committee also notes the Government’s collaboration with ILO/IPEC in the context of various direct action programmes, namely: the Programme for the immediate elimination of child labour in the collection of rubbish in the Department of Managua; the Programme for the prevention and elimination of child labour in the coffee industry in the Departments of Jinotega and Matagalpa; and the Programme for the prevention and elimination of child labour in agricultural work, such as rice, bean and maize growing, in the Department of Chontales. The Committee notes that, on the basis of these programmes, the Government hopes to remove 9,115 girls, boys and young persons from work in 2005. Of these, 3,258 will be withdrawn with a view to preventing their entry into the labour market at a young age and 5,237 will be withdrawn and reintegrated into the school system. The Committee requests the Government to provide information on the results achieved, particularly with regard to the number of children actually withdrawn from the worst forms of child labour.

Clause (c). Access to free basic education. Under section 43 of the Code of Childhood and Adolescence of 1998, public education is free and compulsory. The Committee notes that the National Strategic Plan envisages securing free access to primary education for 100 per cent of girls, boys and young workers who are not attending school. It also envisages increasing access to secondary and technical education to at least 50 per cent of young persons who are engaged in the worst forms of child labour. The Committee requests the Government to provide information on the results achieved.

Clause (d). Identification of children at special risk. The Committee notes that the National Plan against the commercial sexual exploitation of girls, boys and young persons (2003-08) includes a series of actions to prevent, detect and penalize acts relating to the sexual exploitation of girls, boys and young persons. The National Plan emphasizes the following forms of sexual exploitation: prostitution, pornography, sexual tourism and the trafficking of boys and girls for sexual purposes. The Committee requests the Government to continue providing information on the National Plan against the commercial sexual exploitation of girls, boys and young persons, and particularly on the number of children removed from the sex trade and their rehabilitation and social integration.

Clause (e). Special situation of girls. The Committee notes that section 59 of the Code of Childhood and Adolescence provides that the State is under the obligation, in the context of the implementation of the National Policy of integrated action for children and young persons, to promote the role of girls so as to facilitate the development of their personal identity and dignity and integrate them fully under equal conditions with boys.

The Committee also notes that the Government, in the context of the subregional project "Preventing and eliminating the worst forms of domestic work by children in Central America and Nicaragua", is conducting a study on domestic work by children with a view to identifying its characteristics and scope. According to this study, entitled "Domestic work by children in Nicaragua" undertaken in 2002, over 200,000 girls, boys and young persons engaged in domestic work are the victims of exploitative conditions, do not attend school and are exposed to hazardous products and tools. Of this number (200,000), 90 per cent are girls. They begin working between 8 and 12 years of age and their responsibilities are equivalent to or greater than those of adults. The Committee requests the Government to provide information on the time-bound measures adopted or envisaged to secure the protection of girls engaged in domestic work against the worst forms of child labour.

Article 7, paragraph 3. Designation of the competent authority responsible for the implementation of the provisions giving effect to the Convention. The Committee notes the Government’s indication that the competent authorities responsible for the implementation of the provisions giving effect to the Convention are, with regard to the Labour Code, courts of appeal, labour judges and the Ministry of Labour. The Government adds that the Directorate of Labour Inspection for Young Persons, coordinated by the Ministry of Labour, is responsible for dealing with denunciations relating to child labour, verifying the application of the legislation governing labour relations and occupational health and safety conditions in workplaces or work centres, and reporting violations of the provisions of the law respecting child labour. The Government also indicates that, with a view to strengthening the labour inspection services, inspectors have received training and, so that they can fulfil their duties more effectively, the necessary material resources and supporting measures have been placed at their disposal. A specific methodological approach to child labour has been developed with a view to carrying out repeated inspections, giving priority to the agricultural sector. The Committee requests the Government to provide information on the inspections carried out by the labour inspection services relating to the worst forms of child labour, including copies and extracts of the reports of the labour inspectorate.

Article 8. Enhanced international cooperation and/or assistance. The Committee notes that one of the social and economic policies developed in the context of the National Policy for integrated action covering childhood and adolescence is the reinforced strategy for economic growth and poverty reduction (ERCERP). According to the information available to the ILO, Nicaragua has established a new cooperation programme with UNICEF (2002-2006), the objective of which is to prevent and eliminate child labour. The strategy of this programme is to reduce the participation rate in work of girls, boys and young persons through education. The Committee also notes that Nicaragua is a member of Interpol, the organization which assists cooperation between the countries of the various regions, particularly to combat the trafficking of children. The Committee requests the Government to provide information on the reinforced strategy of economic growth and poverty reduction (ERCERP), particularly in so far as it contributes to the elimination of the worst forms of child labour. It also encourages the Government to continue providing information on enhanced international cooperation and assistance, including support for social and economic development, poverty eradication programmes and universal education.

Parts IV and V of the report form. Application of the Convention in practice. The Committee notes the statistical data on the worst forms of child labour supplied by the Government in its report. It notes that, according to these data, the activities in which the largest number of young workers are to be found are the agricultural, forestry and fishing sectors, with a total of 253,057 girls, boys and young persons. Another sector in which a large number of young workers are engaged is that of mines and quarries, with around 140,332 girls, boys and young workers aged between 5 and 17 years. Furthermore, according to these data, the manufacturing industry employs around 501 young persons. The Committee notes the national report on work by children and young persons in Nicaragua of 2000 (ENTIA), prepared in collaboration with ILO/IPEC. It notes that this report contains data which are also worrying: 44 per cent of boys and girls who work are under the minimum age for admission to employment; 13.5 per cent of young workers are under 10 years of age; while 71.5 per cent of young workers are boys and 28.5 per cent girls.

The Committee expresses concern at the situation of children in Nicaragua who have to engage in the worst forms of child labour. It therefore urges the Government to renew its efforts to improve this situation. It also calls upon the Government to continue providing statistics and information on the nature, extent and trends of the worst forms of child labour, the number of children covered by the measures giving effect to the Convention, the number and nature of the infringements reported, investigations, prosecutions, convictions and sentences. To the extent possible, all information provided should be disaggregated by sex.