Demande directe (CEACR) - adoptée 2006, publiée 96ème session CIT (2007)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the following matters raised in its previous direct request:

1. Freedom of public servants to leave their employment. In its previous comments over many years, the Committee has noted that sections 158 and 159 of Act No. 013/98/AN of 28 April 1998 establishing the legal framework for public service employment and public servants, reproduced word for word the provisions of sections 178 to 181 of YATU No. AN VI-008/FP/TRAV of 26 October 1988 issuing the General Public Service Regulations. Under the above provisions, public servants wishing to resign must apply in writing to the Minister of the Public Service two months before the presumed date of departure. The Minister has one month within which to notify his acceptance or rejection. Public servants who end their employment despite a refusal from the competent authority are dismissed on grounds of abandoning their duties. The Committee drew the Government’s attention to the fact that, where employment is the result of a freely concluded agreement, the effect of statutory provisions preventing termination of employment by means of notice of reasonable length is to turn a contractual relationship based on the will of the parties into service by compulsion of law, which is incompatible with the Convention.

The Government indicates in its report that Act No. 013/98/AN is going through a second reading and that measures will be taken to align it with the Convention, particularly regarding freely concluded contractual relationships, so as to grant a notice period of reasonable length to public servants who wish to resign. The Committee takes note of this information and hopes that the Government will be able to indicate in its next report the measures taken in this respect. It would also appreciate receiving information on the criteria used by the competent authority in accepting or rejecting the resignation of public servants, and the number of applications rejected in relation to the number of applications filed.

2. Article 2, paragraph 2(a), of the Convention. Work or service exacted under compulsory military service laws: work in the national interest. The Committee notes that, under Act No. 009/98/AN of 16 April 1998, issuing general staff regulations for the national armed forces, any unmarried national of Burkina Faso aged from 18 to 25 years may enrol freely or be required to serve in the national army. The obligation to serve is governed by sections 33 et seq. of the Act. The obligation comprises statutory active service of 18 months involving civic and military instruction and work in the national interest (section 36). The Committee notes that the Government stated, referring to similar provisions in the old legislation (section 5 of Act No. 49-62/AN), that work in the general interest in the context of compulsory military service applied solely in cases of force majeure, in accordance with Article 2, paragraph 2(d), of the Convention and that, in practice, these provisions had never been applied.

The Committee draws the Government’s attention to the fact that work exacted under laws on compulsory military service is excluded from the scope of the Convention only when the work is of a purely military nature. It requests the Government to take the necessary steps to ensure that work in the national interest, as provided for in section 36 of Act No. 009/98/AN, is limited strictly to cases of force majeure.

3. Article 2, paragraph 2(c). Work exacted as a consequence of conviction in a court of law.

(a) Prison labour. In response to the Committee’s previous comments, the Government indicates that work by detainees in and outside the prison is carried out under the supervision of prison guards and mainly involves inmates who enjoy semi-free status because of good conduct. The Committee asks the Government to indicate whether, and under what conditions, inmates having this status may be required to perform work for private individuals, companies or associations. Please also indicate whether the prison system is still governed by Order No. 642 APAS of 4 December 1950 issuing the prison regulations.

(b) Work in the general interest. The Committee notes that, following the adoption of Act No. 006-2004/AN of 6 April 2004, the provisions of sections 11 and 35 of the Penal Code have been amended to introduce a new correctional penalty: that of work in the general interest. The correctional jurisdiction may sentence offenders, in their presence and with their consent, to work in the general interest as a principal penalty where an offence is punished by imprisonment. Offenders who so agree will be required to perform non-remunerated work in the general interest for a public legal entity or a non-profit-making association recognized as being of public utility. According to the provisions of Act No. 007-2004/AN of 6 April 2004 on the administration of work in the general interest, the duration of such work may not be less than 40 hours or more than 150 hours. The Committee notes that the magistrate responsible for enforcing penalties establishes the arrangements for the execution of work in the general interest, monitors execution and settles incidents. The magistrate’s decision on the placement of the offender specifies the entity for which the work will be performed, the tasks the offender is to accomplish and the conditions in which the work will be executed. The Act gives persons sentenced to such work a number of rights, including the right to change domicile, institution or type of work, with the magistrate’s authorization. The Committee notes that the legislation contains several provisions for supervising and controlling the arrangements for the performance of work in the general interest. It would appreciate receiving information on the types of work that may be imposed under this penalty, on the criteria used for granting associations the authorization to receive persons sentenced thereto, as well as the list of these associations.

4. Punishment of vagrancy. In its previous comments, the Committee noted that, under section 246 of the Penal Code, anyone found in a public place who is unable to show proof of known abode or means of subsistence and has no trade or profession, is guilty of vagrancy and liable to a prison term of from two to six months. The Committee pointed out that the laws on vagrancy are drafted in such general terms that they may act as a direct or indirect constraint to work, and so should be amended to make them conform to a narrower concept of vagrancy. The Government provides no information on this subject. The Committee hopes that in its next report it will be able to indicate the measures taken to this end, so that only persons considered to be vagrants who disturb the public order may incur any penalty.