Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

Absence of conditions to ensure protection against discrimination in employment and occupation. The Committee recalls its previous observation in which it continued to express serious concern at the human rights situation in Darfur, and in particular at the repression of political dissent as well as arbitrary arrests and detention of individuals, including lawyers, community leaders, teachers and business people, predominantly from the Fur, Maasaalit and Zaghawa tribes. The Committee had urged the Government to take measures to ensure that all parts of the population in Darfur, irrespective of race, colour, national extraction, sex, religion, political opinion and social origin, could exercise their occupations free from discrimination. The Committee notes that the Government has taken some legislative steps to address the human rights situation in Sudan, including the passing of the National Human Rights Commission Act on 21 April 2009 and of the Southern Sudan Human Rights Commission Act on 16 February 2009. However, it also notes the most recent report of the Special Rapporteur on the situation of human rights in Sudan indicating that the general human rights situation in Sudan remains critical, including serious problems with respect to the effective administration of justice and continuing arbitrary detention and ill-treatment of members of political opposition and journalists on the account of their work, opinions or peaceful assembly (A/HRC/11/14, June 2009). 

The Committee notes that the Government continues to assert that discrimination in employment and occupation does not exist in Sudan, that no complaints have been submitted to the courts in this regard, and that there is thus no need for specific policies and programmes to address such discrimination. The Committee profoundly regrets the Government’s persisting general statements that no discrimination exists in Sudan. The Committee considers that such a position is contrary to the spirit of the Convention and is a considerable obstacle to its implementation. The absence of discriminatory provisions in the national legislation or the absence of complaints is not sufficient to fulfil the obligations under the Convention; nor is it an indicator of an absence of discrimination in practice. Moreover, the absence of complaints of discrimination in employment and occupation is often due to an inadequate legal foundation or lack of access to dispute resolution and enforcement mechanisms and problems with respect to the administration of justice. The Committee must once again draw the attention of the Government to the fact that in the process of applying the Convention, it is essential to acknowledge that no society is free from discrimination and that continuous action is required to address it. The Committee urges the Government to take immediate measures to:

(i)    ensure that all parts of the population in Darfur, including the Fur, Maasaalit amd Zaghawa tribes, can exercise their occupations free from discrimination, irrespective of ethnic origin or political opinion;

(ii)   ensure the effective enforcement of the right to non-discrimination for all parts of the population, irrespective of race, colour, national extraction, sex, religion, political opinion or social origin, including the establishment of adequate and effective dispute resolution and complaints mechanisms; and

(iii) report on the results achieved with respect to all the measures taken.

In this regard, the Committee urges the Government to take the necessary measures that the National Human Rights Commission and the Southern Sudan Human Rights Commission are established, and asks the Government to provide information on steps taken by them to give effect to the provisions of the Convention.

Article 1, paragraph 1(a), of the Convention. Prohibited grounds of discrimination set out in the Convention. The Committee recalls article 31 of the Interim Constitution of the Republic of Sudan 2005 providing for equal protection of the law to all persons without discrimination based on the grounds set out in the Convention, except social origin. It also recalls the absence of a provision in the 1997 Labour Code of the Republic of Sudan explicitly prohibiting discrimination on the grounds set out in the Convention with respect to all aspects of employment and occupation. The Committee notes that such a provision is included in the Southern Sudan draft Labour Act (section 10(1) and (2)), and that section 18 of the Interim Constitution of Southern Sudan 2005 provides for equal protection without discrimination based on all of the grounds set out in the Convention. The Committee further notes the Government’s statement that social origin discrimination does not exist in Sudan. Noting the Government’s intention to take into account the Committee’s comments regarding the need for a legal provision prohibiting direct and indirect discrimination in employment and occupation with respect to all the grounds set out in Article 1(1)(a) of the Convention, in the process of formulating the final Constitution, the Committee requests that concrete steps be taken to insert such a provision in the final Constitution and the Labour Code.

Article 3. Measures to implement the national policy on equality of opportunity and treatment. With respect to measures taken pursuant to Article 3 of the Convention, the Committee notes the Government’s reply that tripartite dialogue and cooperation with employers’ and workers’ organizations are well-established practices in Sudan; the laws of Sudan do not contain discriminatory provisions nor are there any laws, circulars or administrative practices in force contrary to the Convention. The Government further maintains that following the adoption of the Comprehensive Peace Agreement 2005, any practice contrary to international human rights Conventions was stopped. The Committee stresses that by ratifying the Convention, the Government has undertaken to take proactive measures to promote equality of opportunity and treatment in employment and occupation in the framework of a national policy, with a view to eliminating discrimination. While the choice of the concrete measures to be taken is left to the Government in view of the national conditions and practice, the Convention requires that these measures be effective. The Committee also recalls that under Article 3(f) of the Convention, the Government is called upon to indicate in its reports the action taken in pursuance of this national policy and the results secured by such action. The Committee therefore once again urges the Government to provide full particulars in its next report on the specific measures taken by the Federal Committee of Manpower, the Ministry of Education and the High Council of Vocational Training not only to promote the principle of equality of opportunity and treatment, but also to ensure that no inequalities exist nor discrimination is practised on any of the grounds set out in the Convention.

The Committee is raising other points in a request addressed directly to the Government.