Observation (CEACR) - adoptée 2016, publiée 106ème session CIT (2017)

Convention (n° 29) sur le travail forcé, 1930 - Eswatini (Ratification: 1978)

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Observation

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Articles 1(1) and 2(1) of the Convention. Legislation concerning compulsory public works or services. Over a number of years, the Committee has been drawing the Government’s attention to the nonconformity of the Swazi Administration Order No. 6 of 1998 with the Convention. It noted that the Order provides for the duty of Swazis to obey orders requiring participation in compulsory works, such as compulsory cultivation, anti-soil erosion works and the making, maintenance and protection of roads, enforceable with severe penalties for non-compliance. The Committee also noted the Government’s indication that this Order had been declared null and void by the High Court of Swaziland (Case No. 2823/2000). The Committee noted, however, the 2011 communication of the Swaziland Federation of Trade Unions (SFTU) alleging that the High Court’s nullification of the Order did not assist in halting forced labour practices, as these practices are rooted in the well-established and institutionalized customary law through cultural activities which are largely unregulated. The SFTU indicated that the customary practice of “Kuhlehla” (rendering services to the local chief or king) is still practised and enforced with punitive measures for refusal to attend. The Committee requested the Government to indicate whether any cases have been brought before the court in this regard, including any cases relating to the customary practice of “Kuhlehla”. It also requested the Government to provide information on the measures taken to formally repeal the Swazi Administration Order No. 6 of 1998.

The Committee notes the Government’s explanation in its report that the customary practice of “Kuhlehla” is a voluntary practice that benefits mostly the people themselves other than the leaders. Through this custom, people plough the fields of traditional leaders once a year to ensure that there is food in their residences, which is for the consumption of the chief’s family and those working for the community in these residences and the impoverished members of society who end up staying in the traditional leaders’ residences. The Government also indicates that such a custom enables the nation to provide a traditional form of a social protection system for homeless, orphaned and vulnerable children and poor members of the community by providing them with food and shelter. The Government further states that since the Swazi people are happy with, and have a full appreciation of, the importance of the custom, there have been no cases of any persons alleging to have been forced to participate in compulsory work that have ever been brought before the courts. It also adds that this customary practice is not compulsory, as a huge section of the population does not participate in this custom and no punitive action is taken against them. Moreover, since the repeal of the Swazi Administration Order No. 6 of 1998 through Case No. 2823/2000, there have been no measures taken by the Government to formally repeal the Order, for the reason that following its nullification by the High Court, it no longer forms part of the statutes of the country.

While taking note of the above explanation, the Committee draws the Government’s attention to the fact that although the Swazi Administration Order No. 6 of 1998 was declared null and void by the High Court, work is being regularly carried out by the population under the customary practice of “Kuhlehla” without there being a text regulating the nature of this work or rules determining the conditions under which such work is required or organized. The Committee recalls that “minor communal services” are excluded from the scope of the Convention under Article 2(2)(e), when they satisfy the criteria which determine the limits of this exception. These criteria are as follows: (1) the services must be “minor services”, that is 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”. In this regard, the Committee trusts that the Government will take the necessary measures to adopt a new text regulating the customary practice of the “Kuhlehla” system, to ensure that the voluntary nature of participation in this work is explicitly set out in the legislation.

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