Demande directe (CEACR) - adoptée 2018, publiée 108ème session CIT (2019)

Repetition

The Committee notes the observations made by the Christian Confederation of Malagasy Trade Unions (SEKRIMA), received on 17 September 2013.

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. 1. Legislative and institutional framework. In its previous comments, the Committee noted the adoption of Act No. 2007-038 of 14 January 2008 amending and supplementing certain provisions of the Penal Code on action to combat trafficking and sexual tourism. The Committee requested the Government to indicate the measures taken to combat trafficking in persons.

The Committee notes the Government’s indication concerning the adoption of Act No. 2014-040 of 20 January 2015 to combat trafficking in persons. The Act contains penal provisions enabling the competent authorities to prosecute those responsible for trafficking in persons in all its forms. The Act determines the legal framework for the prosecution, repression and compensation of prejudice to victims, and the protection of witnesses and victims. It also emphasizes the extra-territorial competence of the jurisdiction of Madagascar by granting it the competence to prosecute, try and punish any person who has committed a violation relating to trafficking outside the territory of Madagascar. Furthermore, under the terms of the Act, a National Bureau to Combat Human Trafficking has been established in order to ensure the harmonization and coordination of action by the competent services to combat trafficking. The Government also indicates that a National Plan to Combat Trafficking was validated in March 2015. The Plan sets out the four strategic policies of prevention, protection, prosecution and cooperation. It places emphasis on pluri-annual awareness-raising and training programmes to combat trafficking in persons. The Government also indicates that no statistics or court rulings are currently available.

The Committee notes the observations of the SEKRIMA, according to which it would be desirable to reinforce awareness raising concerning forced labour, as experience shows that forced labour exists in a different form from the usual.

The Committee also notes that, in its concluding observations of 20 November 2015, the United Nations Committee on the Elimination of Discrimination against Women encouraged the Government to pursue the efforts that it has made in collaboration with civil society and the international community to combat the trafficking and exploitation of prostitution. The Committee further notes that the Committee on the Elimination of Discrimination against Women (CEDAW) called on the Government to ensure the allocation of human, technical and financial resources for the implementation of the Act to combat trafficking, the National Plan to Combat Trafficking and a database on trafficking, and to ensure the speedy functioning of the National Bureau to Combat Human Trafficking (CEDAW/C/MDG/CO/6-7, para. 23). The Committee encourages the Government to pursue its efforts to prevent, suppress and punish trafficking in persons. The Committee requests the Government to provide information on the implementation of Act No. 2014-040 of 20 January 2015 to combat trafficking in persons and the National Plan to Combat Trafficking. The Committee further requests the Government to provide information on the activities of the National Bureau to Combat Human Trafficking and the results achieved.

2. Imposition of effective penalties and assistance to victims. The Committee notes that sections 6 and 8 of Act No. 2014-040 establish penalties of imprisonment of from two to five years for acts involving forced labour and practices similar to slavery. The sanctions of imprisonment are from five to ten years in cases of the sale of persons. Associations are also held criminally responsible for trafficking violations committed on their account by their bodies or representatives. The Committee also notes that section 41 of the Act provides for the protection of victims, witnesses and investigators, and that any act of intimidation or threat of reprisals is a violation punishable by between six months and two years of imprisonment. The State is also required to guarantee victims of trafficking the right to take action to obtain compensation. Victims shall be equitably and adequately compensated, including for the medical care and resources required for their rehabilitation (section 44). The Committee requests the Government to provide information on the measures taken to ensure that cases of trafficking are the subject of in-depth investigations and that sufficiently effective and dissuasive penalties are applied. The Committee also requests the Government to provide statistics on the number of prosecutions and penalties imposed against those responsible for trafficking. The Committee further requests the Government to provide information on the measures taken to ensure that victims of trafficking benefit from the protection set out in the law.

Article 2(2)(a). National service. For many years, the Committee has been drawing the Government’s attention to Ordinance No. 78-002 of 16 February 1978 setting forth the general principles of national service, which defines national service as the compulsory participation of young Malagasies in national defence and in the economic and social development of the country. The Committee recalls that the imposition of development work as part of compulsory military service is incompatible with the Convention, under the terms of which any work or service exacted in virtue of compulsory military service laws must be of a purely military character.

The Committee notes the Government’s explanations that national service for young persons completing school is no longer compulsory, but based on voluntary service (Decree No. 92-353 of 13 March 1992). It also refers to young persons who are called up and included in the armed forces. After being registered and reviewed, the young conscripts may choose between two options: (i) being excused for family reasons, in which case conscription is cancelled or deferred for one year, depending on the circumstances; or (ii) continuing vocational training through Action for Development Military Service (SMAD). The Government explains that the objective of the SMAD is to facilitate the integration into active life of young Malagasies who volunteer for national service. The SMAD is established on a voluntary basis for young persons, and the duration of the training is set at 24 months, following which volunteers are released from their statutory service obligations. These young persons choose between training for rural or urban trades.

The Committee notes the Government’s explanations concerning the voluntary nature of the SMAD. The Committee however observes that, under the terms of section 33 of Act No. 94-018 establishing the general organization of the defence of Madagascar, national service is a duty of honour, and also that by virtue of section 2 of Ordinance No. 78-002 of 16 February 1978 establishing the general principles of national service, all Malagasies are subject to the duty of national service, defined as compulsory participation in national defence and in the economic and social development of the country. In accordance with this Ordinance, citizens between the ages of 18 and 50 are subject to the obligations of national service, which include registration, review and the obligation of active service for a period of two years, which may be carried out either within or outside the armed forces (sections 4, 7 and 8). The Committee observes that, as a result of these provisions, within the framework of compulsory national service, Malagasies have to carry out compulsory service, which may be carried out outside the armed forces and through which they can participate in economic development. The Committee requests the Government to take the necessary measures to bring the 1978 Ordinance into conformity with the Convention so as to ensure that persons who are subject to national service are not called upon to participate in work which is not of a purely military character. The Committee requests the Government to indicate the manner in which, in practice, persons who are subject to the duty of national service fulfil their service obligations within and outside the armed forces, with an indication of the various existing types of service and the manner in which conscripts are allocated to them. Noting that the Government refers to the possibility for conscripts to choose the SMAD, the Committee requests the Government to indicate the manner in which they are selected and in which they give their consent to participate in this type of service. Please provide a copy of any text governing the conditions and modalities for the performance of the service duties of conscripts, as envisaged in section 8 of the 1978 Ordinance, and any text regulating the SMAD. The Committee also refers the Government to its comments under the Abolition of Forced Labour Convention, 1957 (No. 105).

Article 2(2)(c). Prison work. Hiring of prison labour to private enterprises. In its previous comments, the Committee noted that Decree No. 2006-015 on the general organization of the prison administration, adopted on 17 January 2006, maintains the possibility of hiring out prison labour to private enterprises. It requested the Government to provide further information on the manner in which the free and informed nature of the consent of detainees hired to private entities is guaranteed.

The Committee notes the Government’s indications that work by detainees is governed by Decree No. 2006-015 on the general organization of the prison administration, adopted on 17 January 2006, Chapter XIX, and Circular No. 418 MJ/SG/DGAP of 4 August 2006, on work by detainees, which authorizes the hiring of prison labour to private enterprises. The prison administration does not propose work, except in cases where an offer is made and the detainee has made a free request to be assigned to hired work, general service or a penal camp. This authorization to work is envisaged in section 105 of Decree No. 2006-015. Accordingly, the detainee concerned formally gives free and unconstrained consent to the work. A selection commission examines each request and on that basis draws up the list of detainees considered to be apt for work, which is followed by the conclusion of a contract between the prison and the user of the hired labour. The Committee notes the copy of a request to work made by a detainee, and the hiring contract between the prison and the entity hiring the labour, both of which were attached to the Government’s report.