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

1. Article 2, paragraph 2(c), of the Convention. Prison labour. Hiring of prison labour to private enterprises. For several years, the Committee has been drawing the Government’s attention to Decree No. 59-121 of 27 October 1959 (as amended by Decree No. 63-167 of 6 March 1963) to establish the organization of the prison services, under which prison labour may be hired to private enterprises and prison work may be imposed on persons detained pending trial. The Committee requested the Government to amend or repeal the legislation in question so as to give effect to the Convention. The Committee notes the information provided by the Government that draft regulations setting out the conditions for such hiring have been drawn up and that a system of work of general interest is envisaged as an alternative to imprisonment.

The Committee notes with interest section 4(4) of the new Labour Code. Under the terms of this provision, the hiring of prison labour free of charge to private individuals, enterprises or associations is prohibited.

With regard to the hiring of prison labour to private enterprises, the Committee has considered that, where guarantees are provided that those concerned accept work voluntarily without being subjected to pressure or the menace of any penalty, such work would not be in contradiction with the requirements of the Convention. The Government has often indicated in its reports that prisoners accept work for private enterprises voluntarily as a means of improving their conditions of detention. The Committee observes that, to bring the legislation into conformity with the practice followed, it would be necessary to amend Decree No. 59-121 so that it provides explicitly that prisoners must give their consent to work for private enterprises. It also recalls that work by prisoners for private enterprises can only be compatible with Article 2, paragraph 2(c), of the Convention where the prisoners work under conditions of employment approximating a free labour relationship with regard to wage levels, social security and safety and health. Moreover, the existence of such conditions is the most reliable indicator of the voluntary nature of the work. The Committee observes that, while the prohibition of the free hiring of prison labour constitutes progress, it is still necessary to ensure that the conditions of employment approximate those of a free labour relationship.

With regard to the imposition of work on persons who are detained pending trial, the Committee recalls that the requirement in the Convention that prisoners may only be compelled to work as a consequence of a conviction in a court of law, but that it does not prevent work opportunities of a purely voluntary nature from being offered to persons who are detained, but not convicted.

The Committee notes that under the terms of section 4(4) of the new Labour Code (Act No. 2003-044), the imposition of work on persons detained pending trial is prohibited, but that Decree No. 59-121 has not yet been amended accordingly.

The Committee hopes that the Government will be able to inform it of the amendment of Decree No. 59-121 in its next report.

2. Article 2, paragraph 2(a). National service. The Committee noted in its previous observation the Government’s indications that the revision was being considered of Ordinance No. 78-002 of 16 February 1978 on the general principles of national service, which define national service as the compulsory participation of young Malagasies in national defence and in the economic and social development of the country. The Committee notes from the Government’s reports that changes will be made and transmitted at the appropriate time.

The Committee recalls once again that forcing young people to participate in development work as part of compulsory military service, or as an alternative thereto, is incompatible with the Convention. It once again hopes that the Government will take the necessary measures to bring the legislation into conformity with the Convention, in particular by ensuring that young boys and girls participate in national service on a voluntary basis and that the work required under military service laws is of a purely military character.

The Committee also requested the Government to provide copies of Acts Nos. 94-018 and 94-033, which repeal Act No. 68-018 and Decree No. 92-353. Despite the Government’s indications, the Committee notes that copies of these texts were not attached to the report, and it hopes that they will be received with the Government’s next report.