Demande directe (CEACR) - adoptée 2005, publiée 95ème session CIT (2006)

Referring to its observation under the Convention, the Committee notes the Government’s reply to its previous direct request, and in particular, the adoption of the new Trade Disputes Act (No. 15 of 2004), a copy of which was communicated by the Government with its report. The Committee again requests the Government to supply copies of the following legislation: Public Service Act, as amended; laws governing the press and other media; laws governing public assemblies, meetings, marches and demonstrations; and laws governing political parties and associations.

Article 1(a) of the Convention. The Committee previously noted that sentences of imprisonment (which involve compulsory prison labour) may be imposed under sections 47 and 48 of the Penal Code on any person who prints, makes, imports, publishes, sells, distributes or reproduces any publication prohibited by the President "in his absolute discretion" as being "contrary to the public interest"; similar sentences may be imposed under section 51(1)(c), (d) and (2) concerning seditious publications. The Committee also noted that sentences of imprisonment may also be imposed under sections 66-68 of the Penal Code on any person who manages or is a member or in any way takes part in the activity of an unlawful society, particularly of a society declared unlawful as being "dangerous to peace and order".

The Committee notes the Government’s indication in the report that the above provisions of the Penal Code have not been applied in practice. While noting this indication, the Committee recalls again that Article 1(a) of the Convention prohibits the use of forced or compulsory labour as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. It also refers in this connection to paragraphs 133-140 of its General Survey of 1979 on the abolition of forced labour, where it observed that the Convention does not prohibit punishment by penalties involving compulsory labour of persons who use violence, incite violence or engage in preparatory acts aimed at violence; but sanctions involving compulsory labour fall within the scope of the Convention where they enforce a prohibition of the expression of views or of opposition to the established political, social or economic system, whether such prohibition is imposed by law or by a discretionary administrative decision.

The Committee therefore requests the Government to provide information on measures taken or contemplated in order to ensure the observance of the Convention in this regard. Pending the adoption of such measures, the Committee requests the Government to continue to provide information on the application of the above Penal Code provisions in practice, including copies of court decisions defining or illustrating their scope and indicating the penalties imposed.

Article 1(c). The Committee notes that section 43(1)(a) of the new Trade Disputes Act (No. 15 of 2004) makes punishable with imprisonment (involving compulsory prison labour) any wilful breach of a contract of employment by an employee who is acting either alone or in combination with others, if such a breach results in a deprivation of the public of an essential service or in substantial diminishing of the enjoyment of such service by the public.

The Committee recalls that Article 1(c) of the Convention prohibits the use of forced or compulsory labour as a punishment for breaches of labour discipline. It also refers in this connection to paragraphs 110-116 of its General Survey of 1979 on the abolition of forced labour, in which it has considered that it is not incompatible with the Convention to impose penalties (even involving an obligation to perform labour) for breaches of labour discipline that impair or are liable to endanger the operation of essential services, provided that such provisions are applicable only to essential services in the strict sense of the term (that is, services whose interruption would endanger the life, personal safety or health of the whole or part of the population). However, some of the services listed in the Schedule to the Trade Disputes Act (such as the Bank of Botswana, operational and maintenance services of the railways, transport and telecommunications services necessary to the operation of the above services) do not seem to satisfy these criteria.

Referring also to its comments made under Convention No. 87, likewise ratified by Botswana, the Committee hopes that the necessary measures will be taken in order to amend the above provisions of the Trade Disputes Act (e.g. by amending the list of essential services as indicated above), in order to bring the legislation into conformity with the Convention on this point. It requests the Government to provide, in its next report, information on the progress made in this regard.