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

Articles 1(1) and 2(1) of the Convention. Use of conscripts for non-military purposes. For a number of years, the Committee has been referring to Act No. 76 of 1973, as amended by Act No. 98 of 1975, concerning general (civic) service of young persons on completion of their studies. According to section 1 of the Act, young persons, male and female, who have completed their studies and who are surplus to the requirements of the armed forces, may be directed to work, such as development of rural and urban societies, agricultural and consumers’ cooperative associations and work in production units of factories. The Committee referred to paragraphs 49 to 62 of its General Survey of 1979 on the abolition of forced labour where it recalled that the Conference, while adopting the Special Youth Schemes Recommendation, 1970 (No. 136), had rejected the practice of making young people participate in development activities as part of their compulsory military service, or instead of it, as being incompatible both with the present Convention and Convention No. 105, which provides for the abolition of any form of compulsory labour as a means of mobilizing and using labour for purposes of economic development.

The Committee has noted the Government’s repeated statement in its reports that performing the general (civic) service does not include any compulsion or obligation, since the law does not provide for any penalty to be imposed on those who have not performed it. The Government reiterates that such service is meant to be voluntary. On the other hand, the Government referred to exemption of some categories of young persons from such service and indicated that conscripts may be also exempted from it upon their request. The Government has also repeatedly stated that the services defined by the above Act are considered social and rural services provided in the direct interest of the local community.

While noting these indications, the Committee considers that exemption of some categories of young persons from the service can only confirm the non-voluntary character of such service for other categories. Besides, a service cannot be deemed voluntary merely by the fact that a person may apply for exemptions, since the Convention defines the term "forced or compulsory labour" as work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.

The Committee further considers that, although the young people concerned may render services useful to the local population under the Act on general (civic) service, such services cannot come under the definition of "minor communal services" excluded from the scope of the Convention under Article 2(2)(e), since they do not satisfy the criteria which determine the limits of this exception and serve to distinguish it from other forms of compulsory labour. These criteria are as follows: (1) the services must be "minor services", i.e. relate primarily to maintenance work; (2) the services must be "communal services" performed "in the direct interest of the community", and not relate to the execution of works intended to benefit a wider group; (3) the members of the community or their direct representatives must "have the right to be consulted in regard to the need for such services". The Committee points out, referring also to paragraph 37 of its General Survey of 1979 on the abolition of forced labour, that the general (civic) service provided for under section 1 of Act No. 76 of 1973 (as amended by Act No. 98 of 1975) does not appear to satisfy the abovementioned criteria, since the level and magnitude of the services imposed are not limited as indicated above.

The Committee again draws the Government’s attention to paragraph 52 of its General Survey of 1979 on the abolition of forced labour, in which it pointed out that "the principle that only volunteers perform such service should be reflected in the legislation; so that there can be no question of indirect pressure, governments wishing to create a service for development purposes consisting of people who have joined the service quite freely could separate this corps from the compulsory national service … Should the development volunteers be excused from compulsory military service, this should take the form of an exemption and not be used as a means of pressure so that a civic service can recruit a number of people for whom there would in any case not be any place in the armed forces."

The Committee therefore hopes that the necessary measures will at last be taken in order to ensure the observance of the forced labour Conventions, both in legislation and in practice, for example by clearly providing that the participation of young people in the civic service programme is voluntary. Pending the adoption of such measures, the Committee requests the Government to continue to provide information on the application of the above legislation in practice, including information on the number of persons who applied for exemption from such service before the Ministry of Social Affairs and those whose applications had been refused.

The Committee is also addressing a request on certain other points directly to the Government.