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

Article 3 of the Convention. Clause (b). Worst forms of child labour. 
1. Use, procuring or offering of a child for prostitution. In its previous comments, the Committee noted that most sexual offence provisions in the Penal Code refer only to girls, and that there do not appear to be any similar provisions protecting boys. The Committee requested the Government to take the necessary measures to secure the prohibition of the use, procuring or offering of both boys and girls under 18 years of age for prostitution. The Committee notes the information in the “Discussion document on child labour in Botswana”, released by the Ministry of Social Security in conjunction with the ILO in 2006 (“child labour report”), that a rapid assessment on commercial sexual exploitation indicated that some boys, as well as girls, are involved in commercial sexual exploitation. The Committee recalls that under Article 3(b) of the Convention the use, procuring or offering of a child for prostitution refers to all persons (boys and girls) under 18 years of age. The Committee consequently requests the Government to indicate if measures to secure the prohibition of the use, procuring or offering of both boys and girls under 18 years of age for prostitution have been taken, and if not, to take such measures immediately.

2. Use, procuring or offering of a child for the production of pornography or for pornographic performances. The Committee previously observed that section 178 of the Penal Code provides that a person who makes, produces, imports, conveys or possesses obscene pictures, photographs or films, for the purpose of trade or distribution, is guilty of an offence. The Committee observed however, that the provisions of the Penal Code do not appear to prohibit the use, procuring or offering of a child for the production of pornography or for pornographic performances. Noting the absence of information on this point in the Government’s report, the Committee reminds the Government that, by virtue of Article 3(b) of the Convention, such an activity is considered to be one of the worst forms of child labour and that under Article 1 of the Convention, each member State which ratifies this Convention shall take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. The Committee again requests the Government to take the necessary measures to ensure that the use, procuring or offering of both boys and girls under 18 years of age, by anyone, for the production of pornography or for pornographic performances is prohibited. It also requests the Government to adopt provisions establishing appropriate penalties for this worst form of child labour.

Clause (c). Use, procuring or offering of a child for illicit activities in particular for the production and trafficking of drugs. In its previous comments, the Committee observed that the Drugs and Related Substances Act, 1992, regulates the manufacturing, import, export or distribution of drugs. However, it observed that no provisions prohibit the use, procuring or offering of a child for the production and trafficking of drugs. The Committee notes the information included with the Government’s report that there are instances of the use of children by adults to commit crimes in the Kgalagadi district and in major cities, where children are used for organized street crime, thefts from vehicles and breaking into homes. The Committee again recalls that, by virtue of Article 3(c) of the Convention, the use, procuring or offering of a child for illicit activities are considered to be among the worst forms of child labour and are therefore prohibited for children under 18 years of age. The Committee asks the Government to provide information on measures taken or envisaged to prohibit the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs, and sanctions envisaged. It also requests the Government to supply a copy of the relevant legislation.

Clause (d). Hazardous work. Self-employed workers. The Committee previously noted that by virtue of section 110(1) f the Employment Act (now section 108 (1)), children under 18 shall not be employed in any work which is harmful to their health or development, dangerous or immoral. However, the Committee observed that, by virtue of section 2 of the Employment Act, the scope of application of this Act is limited to persons working under an employment contract and domestic employees. Noting the lack of information on this point in the Government’s report, the Committee recalls that the Convention applies to all branches of economic activity and that it covers all types of employment or work, whether under a contract of employment or not, and whether it is remunerated or not. The Committee therefore requests the Government to indicate the measures adopted or envisaged to ensure the protection of self-employed workers under 18 years of age against types of work, which, by their nature or the circumstances in which they are carried out, are likely to harm their health, safety or morals.

Article 4, paragraph 1. Determination of hazardous work. The Committee noted previously, under the Minimum Age Convention, 1973 (No. 138), that pursuant to section 108 of the Employment Act, “the Commissioner may notify any employer in writing or, by notice published in the Gazette … that the kind of work on which a young person is employed by him or them is harmful to his health and development, dangerous, immoral or otherwise unsuitable, and every employer who is so notified shall immediately cease to employ the young person concerned”. Under the Employment Act, a young person is defined as anyone who has attained the age of 15 but is under 18 years of age. The Committee notes the information in the Government’s reports submitted under the Minimum Age Convention, 1973 (No. 138), that indicate that, as of 2007, the Commissioner had not yet determined the types of hazardous work prohibited to children under 18 years of age, although consultations with social partners on this issue were ongoing. In this regard, the Committee draws the Government’s attention to Paragraph 3 of Recommendation No. 190, which provides that in determining the types of such hazardous work, consideration should be given, inter alia, to: (a) work which exposes children to physical, psychological or sexual abuse; (b) work underground, underwater, at dangerous heights or in confined spaces; (c) work with dangerous machinery, equipment and tools, or which involves the manual handling or transport of heavy loads; (d) work in unhealthy environments which may, for example, expose children to hazardous substances, agents or processes, or to temperatures, noise levels, or vibrations damaging to their health; and (e) work under particularly difficult conditions such as work for long hours or during the night or work where the child is unreasonably confined to the premises of the employer. The Committee hopes that the commissioner will take into consideration the types of work enumerated in Paragraph 3 of the Worst Forms of Child Labour Recommendation, 1999 (No. 190), in determining the types of work to be considered as hazardous. It also requests the Government to provide information on progress made in this regard and to supply a copy of the list once it has been adopted.

Article 5. Monitoring mechanisms. The Committee previously requested the Government to provide information on inspections carried out by the labour inspectorate regarding the worst forms of child labour. The Committee notes that the Government’s information in its report submitted to the Committee on the Rights of the Child (CRC) on 27 February 2004 that, at that time, the labour inspection form being used did not require the employer to specific the ages of employees (CRC/c/51/Add.9, paragraph 353). The Committee notes that Committee on the Rights of the Child (CRC), in its concluding observations of 3 November 2004, encouraged the Government to improve the system and quality of labour inspection in order to reduce the economic exploitation of children. The Committee requests the Government to provide information on the labour inspection form currently in use, and requests the Government to provide an example of this form. Further, the Committee again asks the Government to provide information on inspections carried out by the labour inspectorate regarding infringements of the national provisions giving effect to the Convention.

Article 6. Programmes of action to eliminate the worst forms of child labour. The Committee takes note of the ILO partnership project entitled “Towards the elimination of the worst forms of child labour” (TECL), which focuses on child trafficking, commercial sexual exploitation, and educational rehabilitation in South Africa, Botswana, Namibia, Lesotho and Swaziland. The Committee notes the information in the Government’s report that the TECL project resulted in the drafting of a national action programme on the elimination of the worst forms of child labour (APEC) by the Ministry of Labour and Home Affairs, in broad consultation with other ministries and civil society. The Committee also notes the Government’s statement that the APEC was presented by the Programme Advisory Committee on Child Labour in February 2008 for submission to the Permanent Secretary in the Ministry of Labour and Home Affairs, to secure the necessary government approvals. The Committee further notes that the APEC included plans of action to address the current legislation and policy gaps as well as to create awareness and to disseminate information on child labour. Implementing the APEC will involve various programmes and procedures to address the withdrawal and rehabilitation of children in the worst forms of child labour, the enforcement of the relevant legislation, and the provision of training to relevant stakeholders and implementers, such as labour inspectors, police, social workers, youth officers, diversion service providers, legal representatives and magistrates. The Committee requests the Government to continue providing information on the implementation of the national action programme on the elimination of the worst forms of child labour, as well as results achieved.

Article 7, paragraph 2. Time-bound and effective measures. Clause (b). Direct assistance for the removal of children from the worst forms of child labour. Child victims of commercial sexual exploitation. The Committee notes the information in the Government’s report that there are recorded instances of commercial sexual exploitation of children at truck stops as well as around sheebeens (unlicensed drinking establishments), hotels and bars. The Committee also notes the Government’s statement that commercial sexual exploitation is generally linked to poverty, and that some children are introduced to exploitative sex work by members of their families. The Committee further notes the findings of a study in the child labour report in which 51 commercial sex workers in Gaborone were interviewed. The study indicated that half of those interviewed were aged 15–24 years and a quarter of these girls were aged 12–14 years. Most of these young girls had been recruited into this work by friends or immediate family members at ages as young as 9 years old. In addition, the Committee notes that the CRC, in its concluding observations of 3 November 2004, expressed concern at the increasing incidence of the commercial sexual exploitation of children, and encouraged the Government to prioritize recovery assistance and to ensure that education and training as well as psychosocial assistance and counselling are provided to victims (CRC/C/15/Add.242, paragraph 59). The Committee expresses concern at reports of the commercial sexual exploitation of children and requests the Government to provide information on the measures taken, in the context of the national plan on the elimination of the worst forms of child labour, to provide the necessary and appropriate direct assistance for the removal of child victims of commercial sexual exploitation and to ensure their rehabilitation and social integration.

Clause (c). Access to free basic education and vocational training for all children removed from the worst forms of child labour. The Committee notes the Government’s statement that the Botswana National Youth Council is spearheading a reducing child labour in Southern Africa (RECLISA) project, in Gaborone and Gatsi, which enables out-of-school children who are at risk of, or already involved in, detrimental work, to access education. The Committee notes that this has resulted in the enrolment of 943 street and farm children into primary and secondary schools, including the provision of uniforms for 615 children. The Committee requests the Government to continue providing information on these and other effective and time-bound measures to provide educational opportunities for children removed from the worst forms of child labour.

Clause (d). Identifying and reaching out to children at special risk. HIV/AIDS orphans and other vulnerable children. The Committee notes the Government’s information in its report submitted to the Human Rights Council on 5 September 2008 that a significant share of the Government’s budget has been allocated to the National Aids Coordinating Agency, which is mandated to coordinate the overall response to the epidemic, and that the Government undertook a National Strategic Framework (NSF) for HIV/AIDS (2003–09). The Committee also notes the information in this report that the National Strategic Framework II (2009–16) has been developed (A/HRC/WG.6/3/BWA/1, paragraphs 109–110). The Committee further notes that Phase II of the
ILO–TECL project will focus on HIV/AIDS by supporting and monitoring the implementation of national plans of action in three core countries in southern Africa, including Botswana.

The Committee notes the information in the Government’s report entitled “2008 progress report of the national response to the UNGASS Declaration of Commitment on HIV/AIDS” issued in February 2008, that there is a national orphan care programme that provides food baskets and psychological counselling to orphans, and facilitates the waiving of their school fees. By March 2007, 53,395 orphans had been registered in this programme. While the Committee welcomes these measures, it notes with concern that many children are not reached through this programme. According to UNAIDS data, there are approximately 95,000 orphans aged 0–17 in Botswana due to AIDS-related deaths. The Committee also notes the information in the child labour report which indicates that, while school attendance rates of these children remain very similar to non-orphans, some of these children are engaged in child labour, including commercial sexual exploitation to meet their needs for housing and survival. Recalling that children orphaned by HIV/AIDS and other vulnerable children are at increased risk of being engaged in the worst forms of child labour, the Committee requests the Government to redouble its efforts to ensure that children orphaned by HIV/AIDS and other vulnerable children are prevented from being engaged in the worst forms of child labour. It requests the Government to provide information on the results obtained.

Parts IV and V of the report form. Application of the Convention in practice. The Committee notes the information in the Government’s report that an estimated 9 per cent of children aged 7–17 (38,375 children) are engaged in economic activity, and that 80 per cent of these children are engaged in hazardous forms of work. The Committee also notes the information in the Government’s report that indicates that there is an emerging problem with the movement of children between relatives, especially orphans, for the purpose of exploitative domestic labour. The Committee expresses its concern at the situation and encourages the Government to redouble its efforts to ensure in practice the protection of young persons under 18 years of age against the worst forms of child labour, particularly hazardous work and exploitative domestic labour. In addition, the Committee asks the Government to continue to provide information on the worst forms of child labour, including for example, studies and inquiries, and information on the nature, extent and trends of those forms of child labour, the number of children covered by the measures giving effect to the Convention, the number and nature of infringements reported, investigations, prosecutions, convictions and penal sanctions.