Forced Labour Convention, 1930 (No. 29) - Eswatini (RATIFICATION: 1978)

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Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. The Committee previously requested the Government to provide information on the activities implemented by the Task Force for the Prevention of People Trafficking and Smuggling, as well as on the judicial proceedings initiated and the convictions handed down under the People Trafficking and Smuggling (Prohibition) Act No. 7 of 2009.

The Committee takes note of the adoption of the Sexual Offences and Domestic Violence Act No. 15 of 2018 which provides for penalties of imprisonment for up to 20 years and/or a fine in case of the commercial sexual exploitation of an adult (section 13). It notes the Government’s indication, in its report, that a five-year National Strategic Framework and Action Plan to Combat Trafficking in Persons for 2019-2023 was launched, with a view to ensuring a well-coordinated and data-driven national response to prevent, suppress and punish trafficking in persons, especially women and children, characterized by proper identification, referral of victims, strong protection and support mechanisms, as well as successful investigation and prosecution of the offence of trafficking in persons. The Government states that the Task Force holds monthly meetings to monitor the progress in the implementation of the action plan. The Task Force and the Secretariat carried out several awareness-raising activities throughout the country,such as weekly radio programmes, and provided training on trafficking in persons to in-service officers and frontline responders on victim identification and referral to protection services, as well as to judges and senior magistrates. The Government indicates that the anti-trafficking hotline continues to receive information on potential cases of trafficking in persons and to share information on cases and victims of trafficking in persons as well as on trafficker profiles with countries in the region. In 2018-2019, the authorities investigated 14 suspected cases of trafficking in persons, out of which eight were for labour exploitation. Three cases of trafficking in persons were prosecuted in 2018-2019, compared to two cases in 2020-2021. The Government further indicates that procedures to assist victims of trafficking in persons as well as witnesses during judicial processes have been established, and guidelines for identifying victims were elaborated, together with a victim referral form. In 2020, six victims of trafficking in persons were identified and referred to care, compared to four in 2021. A secured shelter was established for victims of trafficking and all identified victims received food, clothing, psychological support and medical care.

Welcoming the efforts made to address trafficking in persons and identify and assist victims, the Committee requests the Government to continue to take the necessary measures for the effective implementation of the Action Plan to Combat Trafficking in Persons for 2019-2023. It asks the Government to provide information on the activities implemented by the Task Force for the Prevention of People Trafficking and Smuggling and the Secretariat in that regard, as well as on the assessment of the progress made. The Committee further requests the Government to provide information on the investigations initiated and the convictions handed down on cases of trafficking in persons and the specific penalties applied to perpetrators under the People Trafficking and Smuggling (Prohibition) Act No. 7 of 2009.

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Articles 1(1), 2 and 25 of the Convention. 1. Legislative developments. The Committee notes the Government’s indication, in its report, that the redrafting of the Employment Bill was finalized by the tripartite Labour Advisory Board, after technical comments were provided by the ILO. It notes, more particularly, that sections 19 to 21 of the Employment Bill prohibit forced labour and section 158(1)(b) of the Bill establishes the penalties in case of forced labour. The Committee notes that section 19 of the Bill, which refers to five situations in which the work or service imposed should not be considered forced labour, generally follows the exceptions under Article 2(2) of the Convention. It notes, however, that:

• (i)section 19(d) of the Bill provides that “communal services of a kind which are to be performed by the member of a community in the direct interest of the community and not being for the purposes of financial gain” do not constitute forced labour. In this regard, the Committee wishes to draw the Government’s attention to the fact that section 19(d) of the Bill goes beyond Article 2(2)(e) of the Convention, which excludes from its scope minor communal services, provided they are “performed by the members of the community in the direct interest of the said community” and “that the members of the community or their direct representatives shall have the right to be consulted in regard to the need for such services” (2012 General Survey on the fundamental Conventions, paragraph 281);
• (ii)section 19(e) of the Bill provides that “any work or service which forms part of the normal civic and cultural obligations of the citizens of a fully self-governing country” do not constitute forced labour. In this regard, the Committee wishes to draw the Government’s attention to the fact that section 19(e) of the Bill goes beyond Article 2(2)(b) of the Convention as the exception of “normal civic obligations” provided for under this provision of the Convention should be understood in a very restrictive way; and
• (iii)section 158(1)(b) of the Bill provides that “exacting or imposing forced labour, or causing or permitting forced labour to be exacted or imposed” is punishable by a fine or imprisonment for a period not exceeding one year or both. The Committee observes that, according to this provision, a person committing the offence of forced labour may be sentenced to a fine only. It recalls that, pursuant to Article 25 of the Convention, the exaction of forced or compulsory labour shall be punishable as a penal offence, and when the envisaged sanction consists of a fine or a short prison sentence it cannot be considered as an effective penalty of a dissuasive nature in view of the gravity of the offence (see the 2012 General Survey, paragraph 319).

The Committee notes the Government’s indication that, in August 2021, the final draft of the Employment Bill was submitted to the Minister for Labour and Social Security and forwarded to the Office of the Attorney-General. The Bill will be then forwarded to the Cabinet for approval and to the Parliament for adoption. The Government states that it is anticipated that the legislative process will be completed without any further delay, particularly taking into account the level and extent of consultations that have taken place within the Legislative Advisory Board. The Committee therefore expresses the firm hope that the Government will take into account the above comments and adopt the necessary measures to ensure that the final version of the Employment Bill fully complies with the provisions of the Convention, in particular by amending:

• –sections 19 (d) and (e) of the Bill in order to limit the scope of the exclusions from the definition of forced labour to: (i) minor communal services, while including a requirement to consult the members of the community or their direct representatives concerning the obligation to perform such minor community services; and (ii) “normal civic obligations” to be understood in a very restrictive way; and
• –section 158(1)(b) of the Bill in order to establish sufficiently dissuasive penalties of imprisonment for the exaction of forced labour.

2. Legislation concerning compulsory public works or services. For a number of years, the Committee has been drawing the Government’s attention to Swazi Administration Order No. 6 of 1998 which 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. It previously noted that, despite the Government’s indication that this Order had been declared null and void by the High Court of Swaziland (Case No. 2823/2000), such practices persisted, being rooted in the well-established and institutionalized customary law, in particular through the customary practice of Kuhlehla (rendering services to the local chief or to the King, such as ploughing the fields of traditional leaders), which was still practised and enforced with punitive measures for refusal to attend. While noting the Government’s explanation that this customary practice was not compulsory, the Committee observed the absence of a text regulating the nature of this work or rules determining the conditions under which such work was required or organized. It requested the Government to take steps in order to explicitly set out in the legislation the voluntary nature of participation in the customary practice of Kuhlehla.

The Committee notes the Government’s indication that the country has a dual legal system based on written Roman-Dutch common law and unwritten traditional and customary laws, as provided for under articles 252 and 258 of the Constitution (Act No. 1 of 2005). The Government adds that the customary practice of Kuhlehla forms part of the unwritten traditional and customary laws which therefore makes it impossible for the Government to adopt a text regulating this practice. The Government indicates that, in order to put an end to this issue, a new section 19(e) has been incorporated into the Employment Bill, in order to exclude from the definition of “forced labour” any work which forms part of the “cultural obligations” of the citizens. The Committee refers, in this regard, to its above comments regarding section 19(e) of the Employment Bill. The Committee notes with concern that despite its previous requests to the Government to ensure the voluntary nature of participation in work carried out pursuant to customary practices, such as Kuhlehla, the Government envisages explicitly excluding these practices from the scope of the legislation prohibiting forced labour. The Committee draws the Government’s attention to the fact that, as long as customary practices, such as Kuhlehla, fail to meet the criteria of the exceptions to forced labour set out in Article 2 of the Convention for “minor communal services”, “civic obligation” or "cases of emergency", they are incompatible with the Convention. The Committee therefore urges the Government to take the necessary steps to ensure compliance with the Convention, whether by ensuring the voluntary nature of participation in work carried out under traditional and customary laws, and more particularly under the customary practice of Kuhlehla, or by limiting the work exacted under such practices to the exceptions of the Convention. It requests the Government to provide information on any progress made in this regard. The Committee further requests the Government to provide information on the number of persons who have been working as a result of customary practices, including the practice of Kuhlehla, as well as on the type and duration of services carried out.

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

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Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons The Committee takes due note of the adoption of the People Trafficking and Smuggling (Prohibition) Act No. 11 of 2010. Referring to the Government’s report on the application of the Worst Forms of Child Labour Convention, 1999 (No. 182), the Committee notes that the Task Force on Prevention of People Trafficking and People Smuggling was formed in March 2010, with a mandate to prevent trafficking in persons through public awareness, protection of victims of trafficking as well as research on trafficking patterns in southern Africa. The Committee also notes the Government’s information that, the office of the Prime Minister established a specific department to deal with issues related to human trafficking and smuggling (secretariat).

The Committee notes, furthermore, that in its concluding observations of 24 July 2014, the UN Committee on the Elimination of Discrimination against Women (CEDAW) while welcoming the adoption of the People Trafficking and People Smuggling (Prohibition) Act, remains concerned that the State party is a country of origin, transit and destination for trafficked women and girls, mainly for sexual exploitation and domestic labour. In this regard, the Committee requests the Government to provide information on the application of the People Trafficking and Smuggling (Prohibition) Act No. 11 of 2010, in practice, indicating the measures taken to prevent, suppress, and combat trafficking in persons. The Committee also requests the Government to provide information on the activities conducted by the Task Force on Prevention of People Trafficking and People Smuggling. Lastly, recalling that, in accordance with Article 25 of the Convention, the exaction of forced labour shall be punished with criminal penalties that are adequately enforced, the Committee requests the Government to provide information on the investigations and the judicial proceedings initiated and on convictions that have been pronounced on the basis of the Act of 2010.

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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.

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Articles 1(1) and 2(1) of the Convention. Legislation concerning compulsory public works or services. The Committee previously noted that the Swazi Administration Order No. 6 of 1998 provided 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 Government indicated 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. These allegations indicated that the customary practice of Kuhlehla (rendering services to the local chief or king) is still practiced and enforced with punitive measures for refusal to attend.

The Committee notes that the Government reiterates that Swazi Administration Order No. 6 of 1998 is null and void. The Government states that it is not aware of other Swazi legislation that entrench forced labour and, therefore, any person who feels forced to participate in compulsory work can bring the matter to the courts to make a determination on such cases. The Committee requests 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 requests the Government to provide information on the measures taken to formally repeal the Swazi Administration Order No. 6 of 1998.

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Articles 1(1) and 2(1) of the Convention. Legislation concerning compulsory public works or services. The Committee previously noted that the Swazi Administration Order No. 6 of 1998 (which provided for the duty of Swazis to obey orders requiring participation in compulsory works, such as e.g. compulsory cultivation, anti-soil erosion works and the making, maintenance and protection of roads, enforceable with severe penalties for non-compliance), had been declared null and void by the High Court of Swaziland (Case No. 2823/2000). The Committee asked the Government to provide information on the practical consequences of this decision.

The Government indicates in its report that the above Order is null and void, and there have been no reported cases of forced labour. It also states that Swazi citizens and the international community are encouraged to report the incidents of forced labour to the courts.

The Committee notes, however, that in a communication dated 30 August 2011 received from the Swaziland Federation of Trade Unions (SFTU), the SFTU alleges that the High Court’s nullification of the Order has never assisted in any manner in halting forced labour practices, which are rooted in the well established and institutionalized customary law through cultural activities which are largely unregulated. According to the allegations, the customary practice of “Kuhlehla” (rendering services to the local Chief or King) is still practiced and enforced with punitive measures for refusal to attend.

The Committee notes that this communication was sent to the Government, on 26 September 2011, for such comments as it may wish to make on the matters raised therein. The Committee hopes that the Government will supply such comments in its next report, as well as the information on measures taken or envisaged to ensure the observance of the Convention.

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Articles 1, paragraph 1, and 2, paragraph 1, of the Convention. Legislation concerning compulsory public works or services. In its earlier comments, the Committee observed that the Swazi Administration Order, Act No. 6 of 1998, which provided for the duty of Swazis to obey orders requiring participation in compulsory works, such as, for example, compulsory cultivation, anti-soil erosion works and the making, maintenance and protection of roads, enforceable with severe penalties for non-compliance, was in serious breach of the Convention. The Committee previously noted that the Swazi Administration Order had been challenged before the High Court of Swaziland which declared the Order null and void, and that the Swaziland Government did not appeal against that judgement.

The Committee notes with interest the text of the above decision of the High Court of Swaziland (Case No. 2823/2000), provided by the Government with its report. It asks the Government to supply information on the practical consequences of this decision.

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Articles 1(1) and 2(1) of the Convention. Legislation concerning compulsory public works or services. In its earlier comments, the Committee referred to the Swazi Administration Order, No. 6 of 1998, which provided for the duty of Swazis to obey orders requiring participation in compulsory works, such as, for example, compulsory cultivation, anti-soil erosion works and the making, maintenance and protection of roads, enforceable with severe penalties for non-compliance. With reference to the comments it has been making for a number of years concerning the Swazi Administration Act, No. 79 of 1950, which contained similar provisions and which was repealed by the abovementioned Order No. 6 of 1998, the Committee observed that provisions of this kind were in serious breach of the Convention.

The Committee notes with interest the Government’s indication in its report received in January 2007 that the Swazi Administration Order, 1998, was challenged at the High Court of Swaziland (Case No. 2823/2000), which declared the Order null and void, and that the Swaziland Government did not appeal against that judgement. The Committee would appreciate it if the Government would communicate a copy of the High Court judgement with its next report.

 

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The Committee notes with regret that no report has been received from the Government. It must therefore repeat its previous observation on the following matters:

Article 1(1) and Article 2(1) and (2)(b), (d) and (e) of the Convention. The Committee previously noted the observations on the application of the Convention made in June 1999 and June 2001 by the Swaziland Federation of Trade Unions (SFTU). The SFTU alleged that the new Swazi Administration Order, No. 6 of 1998, which repealed the Swazi Administration Act, No. 79 of 1950, legalized forced labour, slavery and exploitation with gross impunity and gave the Chiefs the right to penalize non-compliance with the Order with fines, imprisonment, demolition without compensation, etc. The SFTU referred, inter alia, to sections 6, 27 and 28 of the 1998 Order, which provide for the duty of Swazis to assist the Ngwenyama and Chiefs; the duty to attend before Ngwenyama, Chiefs and government officers when so directed, under the threat of punishment; and the duty to obey orders requiring participation in compulsory works.

The Committee has noted the Government’s view expressed in the report that participation in the national duties is not a form of forced or compulsory labour, since this is not being done for purpose of financial gain and Swazis offer themselves voluntarily for such services.

However, in its earlier comments the Committee noted that the combination of sections 6, 27, 28(1)(p), (q) and (u) and 34 of the new Swazi Administration Order (No. 6 of 1998) provides for orders requiring compulsory cultivation, anti-soil erosion works and the making, maintenance and protection of roads, enforceable with severe penalties for non-compliance. With reference to the comments it has been making for a number of years concerning the abovementioned Swazi Administration Act, No. 79 of 1950, which contained similar provisions, the Committee observed that provisions of this kind are in serious breach of the Convention. Referring also to paragraphs 36, 37 and 74 83 of its General Survey of 1979 on the abolition of forced labour, the Committee pointed out that, in order to be compatible with the Convention, such provisions should be limited in scope to cases of a calamity or threatened calamity endangering the existence or well-being of the population, or (in case of compulsory cultivation) to circumstances of famine or a deficiency of food supplies and always on the condition that the food or produce shall remain the property of the individuals or the community producing it, or (to fall under the exemption made for minor communal services) to cases where work is limited to minor maintenance and its duration is substantially reduced. Since the above provisions of the 1998 Order are not restricted in application to the circumstances contemplated in Article 2(2)(d) and (e) of the Convention, such as e.g. cases of emergency (fire, flood, famine, earthquake, violent epidemic or epizootic diseases, etc.) or minor communal services, they are incompatible with the Convention.

The Committee therefore urges the Government to take the necessary measures in order to repeal or amend the above provisions of the Swazi Administration Order, 1998, so as to bring legislation into conformity with the Convention. Pending the adoption of such measures, the Committee again requests the Government to provide information on the manner in which these provisions are being applied in practice.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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The Committee notes that no report has been received from the Government. It must therefore repeat its previous observation on the following matters:

Article 1(1) and Article 2(1) and (2)(b), (d) and (e) of the Convention. The Committee previously noted the observations on the application of the Convention made in June 1999 and June 2001 by the Swaziland Federation of Trade Unions (SFTU). The SFTU alleged that the new Swazi Administration Order, No. 6 of 1998, which repealed the Swazi Administration Act, No. 79 of 1950, legalized forced labour, slavery and exploitation with gross impunity and gave the Chiefs the right to penalize non-compliance with the Order with fines, imprisonment, demolition without compensation, etc. The SFTU referred, inter alia, to sections 6, 27 and 28 of the 1998 Order, which provide for the duty of Swazis to assist the Ngwenyama and Chiefs; the duty to attend before Ngwenyama, Chiefs and government officers when so directed, under the threat of punishment; and the duty to obey orders requiring participation in compulsory works.

The Committee has noted the Government’s view expressed in the report that participation in the national duties is not a form of forced or compulsory labour, since this is not being done for purpose of financial gain and Swazis offer themselves voluntarily for such services.

However, in its earlier comments the Committee noted that the combination of sections 6, 27, 28(1)(p), (q) and (u) and 34 of the new Swazi Administration Order (No. 6 of 1998) provides for orders requiring compulsory cultivation, anti-soil erosion works and the making, maintenance and protection of roads, enforceable with severe penalties for non-compliance. With reference to the comments it has been making for a number of years concerning the abovementioned Swazi Administration Act, No. 79 of 1950, which contained similar provisions, the Committee observed that provisions of this kind are in serious breach of the Convention. Referring also to paragraphs 36, 37 and 74 83 of its General Survey of 1979 on the abolition of forced labour, the Committee pointed out that, in order to be compatible with the Convention, such provisions should be limited in scope to cases of a calamity or threatened calamity endangering the existence or well-being of the population, or (in case of compulsory cultivation) to circumstances of famine or a deficiency of food supplies and always on the condition that the food or produce shall remain the property of the individuals or the community producing it, or (to fall under the exemption made for minor communal services) to cases where work is limited to minor maintenance and its duration is substantially reduced. Since the above provisions of the 1998 Order are not restricted in application to the circumstances contemplated in Article 2(2)(d) and (e) of the Convention, such as e.g. cases of emergency (fire, flood, famine, earthquake, violent epidemic or epizootic diseases, etc.) or minor communal services, they are incompatible with the Convention.

The Committee therefore urges the Government to take the necessary measures in order to repeal or amend the above provisions of the Swazi Administration Order, 1998, so as to bring legislation into conformity with the Convention. Pending the adoption of such measures, the Committee again requests the Government to provide information on the manner in which these provisions are being applied in practice.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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The Committee has noted the Government’s brief report on the application of the Convention.

Article 1(1) and Article 2(1) and (2)(b), (d) and (e) of the Convention. The Committee previously noted the observations on the application of the Convention made in June 1999 and June 2001 by the Swaziland Federation of Trade Unions (SFTU). The SFTU alleged that the new Swazi Administration Order, No. 6 of 1998, which repealed the Swazi Administration Act, No. 79 of 1950, legalized forced labour, slavery and exploitation with gross impunity and gave the Chiefs the right to penalize non-compliance with the Order with fines, imprisonment, demolition without compensation, etc. The SFTU referred, inter alia, to sections 6, 27 and 28 of the 1998 Order, which provide for the duty of Swazis to assist the Ngwenyama and Chiefs; the duty to attend before Ngwenyama, Chiefs and government officers when so directed, under the threat of punishment; and the duty to obey orders requiring participation in compulsory works.

The Committee has noted the Government’s view expressed in the report that participation in the national duties is not a form of forced or compulsory labour, since this is not being done for purpose of financial gain and Swazis offer themselves voluntarily for such services.

However, in its earlier comments the Committee noted that the combination of sections 6, 27, 28(1)(p), (q) and (u) and 34 of the new Swazi Administration Order (No. 6 of 1998) provides for orders requiring compulsory cultivation, anti-soil erosion works and the making, maintenance and protection of roads, enforceable with severe penalties for non-compliance. With reference to the comments it has been making for a number of years concerning the abovementioned Swazi Administration Act, No. 79 of 1950, which contained similar provisions, the Committee observed that provisions of this kind are in serious breach of the Convention. Referring also to paragraphs 36, 37 and 74-83 of its General Survey of 1979 on the abolition of forced labour, the Committee pointed out that, in order to be compatible with the Convention, such provisions should be limited in scope to cases of a calamity or threatened calamity endangering the existence or well-being of the population, or (in case of compulsory cultivation) to circumstances of famine or a deficiency of food supplies and always on the condition that the food or produce shall remain the property of the individuals or the community producing it, or (to fall under the exemption made for minor communal services) to cases where work is limited to minor maintenance and its duration is substantially reduced. Since the above provisions of the 1998 Order are not restricted in application to the circumstances contemplated in Article 2(2)(d) and (e) of the Convention, such as e.g. cases of emergency (fire, flood, famine, earthquake, violent epidemic or epizootic diseases, etc.) or minor communal services, they are incompatible with the Convention.

The Committee therefore urges the Government to take the necessary measures in order to repeal or amend the above provisions of the Swazi Administration Order, 1998, so as to bring legislation into conformity with the Convention. Pending the adoption of such measures, the Committee again requests the Government to provide information on the manner in which these provisions are being applied in practice.

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1. The Committee notes a communication received in June 2001 from the Swaziland Federation of Trade Unions (SFTU), which contains observations concerning the application of the Convention by Swaziland. It notes that this communication was sent to the Government in July 2001, for any comments it might wish to make on the matters raised therein. It hopes that the Government’s comments will be supplied in its next report, so as to enable the Committee to examine them at its next session.

2. The Committee notes with regret that no report has been received from the Government. It must therefore repeat its previous observation on the following matters:

Articles 1(1) and 2(1), and 2(b), (d) and (e) of the Convention. In its earlier comments the Committee referred to the Swaziland Administration Act, No. 79 of 1950, section 10(1)(p), (q) and (u) of which provided for orders requiring compulsory cultivation, anti-soil erosion work and other works of construction and maintenance. It expressed the hope that the necessary measures would be taken to amend these provisions in order to ensure observance of the Convention.

The Committee has noted the observations on the application of the Convention made in June 1999 by the Swaziland Federation of Trade Unions (SFTU). According to the SFTU’s allegations, the new Swazi Administration Order of 1998, which repealed the Swaziland Administrations Act of 1950, legalizes forced labour, slavery and exploitation with gross impunity and gives the chiefs the right to penalize non-compliance with the Order with fines, imprisonment, demolition without compensation, etc. The SFTU refers, inter alia, to sections 6, 27 and 28 of the 1998 Order, which provide for the duty of Swazis to assist the Ngwenyama and chiefs; the duty to attend before Ngwenyama, chiefs and government officers when so directed, under the threat of punishment; and the duty to obey orders requiring participation in compulsory works. The Committee has noted that these observations were transmitted to the Government in June 1999, for such comments as might be judged appropriate, and that no comments have been received from the Government so far.

The Committee has noted that the combination of sections 6, 21, 28(1)(p), (q) and (u) and 34 of the new Swazi Administration Order (No. 6 of 1998) provides for orders requiring compulsory cultivation, anti-soil erosion works and the making, maintenance and protection of roads with severe penalties for non-compliance. With reference to the comments it has been making for a number of years concerning Swaziland Administration Act, No. 79 of 1950, which contained similar provisions, the Committee observes that provisions of this kind are in serious breach of the Convention. They are not restricted in application to the circumstances contemplated in Article 2(2), such as cases of emergency (fire, flood, famine, earthquake, violent epidemic or epizootic diseases, etc.) or minor communal services. The Committee also refers to paragraphs 36, 37 and 74 to 83 of its 1979 General Survey on the abolition of forced labour, in which it pointed out that, in order to be compatible with the Convention, such provisions should be limited in scope to cases of a calamity or threatened calamity endangering the existence or well-being of the population, or (in case of compulsory cultivation) to circumstances of famine or a deficiency of food supplies and always on the condition that the food or produce shall remain the property of the individuals or the community producing it, or (to fall under the exemption made for minor communal services) to cases where work is limited to minor maintenance and its duration is substantially reduced.

The Committee requests the Government to take the necessary measures to amend section 28(1)(p), (q) and (u) of the Swazi Administration Order, 1998 so as to ensure compliance with the Convention. It asks the Government to indicate the progress made in that respect and, in the meantime, to supply full information on the manner in which these provisions are being applied in practice.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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The Committee notes that no report has been received from the Government. It must therefore repeat its previous observation on the following matters:

  Articles 1(1) and 2(1) and (b), (d) and (e) of the Convention.  In its earlier comments the Committee referred to the Swaziland Administration Act, No. 79 of 1950, section 10(1)(p), (q) and (u) of which provided for orders requiring compulsory cultivation, anti-soil erosion work and other works of construction and maintenance. It expressed the hope that the necessary measures would be taken to amend these provisions in order to ensure observance of the Convention.

The Committee has noted the observations on the application of the Convention made in June 1999 by the Swaziland Federation of Trade Unions (SFTU). According to the SFTU’s allegations, the new Swazi Administration Order of 1998, which repealed the Swaziland Administrations Act of 1950, legalizes forced labour, slavery and exploitation with gross impunity and gives the chiefs the right to penalize non-compliance with the Order with fines, imprisonment, demolition without compensation, etc. The SFTU refers, inter alia, to sections 6, 27 and 28 of the 1998 Order, which provide for the duty of Swazis to assist the Ngwenyama and chiefs; the duty to attend before Ngwenyama, chiefs and government officers when so directed, under the threat of punishment; and the duty to obey orders requiring participation in compulsory works. The Committee has noted that these observations were transmitted to the Government in June 1999, for such comments as might be judged appropriate, and that no comments have been received from the Government so far.

The Committee has noted that the combination of sections 6, 21, 28(1)(p), (q) and (u) and 34 of the new Swazi Administration Order (No. 6 of 1998) provides for orders requiring compulsory cultivation, anti-soil erosion works and the making, maintenance and protection of roads with severe penalties for non-compliance. With reference to the comments it has been making for a number of years concerning Swaziland Administration Act, No. 79 of 1950, which contained similar provisions, the Committee observes that provisions of this kind are in serious breach of the Convention. They are not restricted in application to the circumstances contemplated in Article 2(2), such as cases of emergency (fire, flood, famine, earthquake, violent epidemic or epizootic diseases, etc.) or minor communal services. The Committee also refers to paragraphs 36, 37 and 74 to 83 of its 1979 General Survey on the abolition of forced labour, in which it pointed out that, in order to be compatible with the Convention, such provisions should be limited in scope to cases of a calamity or threatened calamity endangering the existence or well-being of the population, or (in case of compulsory cultivation) to circumstances of famine or a deficiency of food supplies and always on the condition that the food or produce shall remain the property of the individuals or the community producing it, or (to fall under the exemption made for minor communal services) to cases where work is limited to minor maintenance and its duration is substantially reduced.

The Committee requests the Government to take the necessary measures to amend section 28(1)(p), (q) and (u) of the Swazi Administration Order, 1998 so as to ensure compliance with the Convention. It asks the Government to indicate the progress made in that respect and, in the meantime, to supply full information on the manner in which these provisions are being applied in practice.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

CMNT_TITLE

Articles 1(1) and 2(1) and (2)(b), (d) and (e) of the Convention. In its earlier comments the Committee referred to the Swaziland Administration Act, No. 79 of 1950, section 10(1)(p), (q) and (u) of which provided for orders requiring compulsory cultivation, anti-soil erosion work and other works of construction and maintenance. It expressed the hope that the necessary measures would be taken to amend these provisions in order to ensure observance of the Convention.

The Committee notes the observations on the application of the Convention made in June 1999 by the Swaziland Federation of Trade Unions (SFTU). According to the SFTU's allegations, the new Swazi Administration Order of 1998, which repealed the Swaziland Administrations Act of 1950, legalizes forced labour, slavery and exploitation with gross impunity and gives the chiefs the right to penalize non-compliance with the Order with fines, imprisonment, demolition without compensation, etc. The SFTU refers, inter alia, to sections 6, 27 and 28 of the 1998 Order, which provide for the duty of Swazis to assist the Ngwenyama and chiefs; the duty to attend before Ngwenyama, chiefs and government officers when so directed, under the threat of punishment; and the duty to obey orders requiring participation in compulsory works. The Committee notes that these observations were transmitted to the Government in June 1999, for such comments as might be judged appropriate, and that no comments have been received from the Government so far.

The Committee notes that the combination of sections 6, 21, 28(1)(p), (q) and (u) and 34 of the new Swazi Administration Order (No. 6 of 1998) provides for orders requiring compulsory cultivation, anti-soil erosion works and the making, maintenance and protection of roads with severe penalties for non-compliance. With reference to the comments it has been making for a number of years concerning Swaziland Administration Act, No. 79 of 1950, which contained similar provisions, the Committee observes that provisions of this kind are in serious breach of the Convention. They are not restricted in application to the circumstances contemplated in Article 2(2), such as cases of emergency (fire, flood, famine, earthquake, violent epidemic or epizootic diseases, etc.) or minor communal services. The Committee also refers to paragraphs 36, 37 and 74 to 83 of its 1979 General Survey on the abolition of forced labour, in which it pointed out that, in order to be compatible with the Convention, such provisions should be limited in scope to cases of a calamity or threatened calamity endangering the existence or well-being of the population, or (in case of compulsory cultivation) to circumstances of famine or a deficiency of food supplies and always on the condition that the food or produce shall remain the property of the individuals or the community producing it, or (to fall under the exemption made for minor communal services) to cases where work is limited to minor maintenance and its duration is substantially reduced.

The Committee requests the Government to take the necessary measures to amend section 28(1)(p), (q) and (u) of the Swazi Administration Order, 1998 so as to ensure compliance with the Convention. It asks the Government to indicate the progress made in that respect and, in the meantime, to supply full information on the manner in which these provisions are being applied in practice.

CMNT_TITLE

Article 1(1) and Article 2(1) and (2)(b), (d) and (e) of the Convention. 1. The previous comments of the Committee have referred to the Swaziland Administration Act, No. 79 of 1950, section 10(1)(p), (q) and (u) of which provides for orders requiring compulsory cultivation, anti-soil erosion work and other works of construction and maintenance. In its latest report, the Government refers to the traditional nature of practices based on an African philosophy of communalism only some of which are found in the Swaziland Administration Act. The Government refers to the Ekhaya Policy of return to the rural village, born of concern over distribution of wealth and aimed in part at reducing crime and peri-urban poverty: this was never a national policy, nor was there any forced migration. Food produced as a result of those practices was intended to benefit various needy sections of the population and not solely for times of famine. These issues were not addressed in the tripartite task force, since it was not brought up as a concern by the nationals or any formation of Swazi nationals.

2. The Committee refers to paragraphs 74 to 83 of its 1979 General Survey on the abolition of forced labour, in which it explains the incompatibility of national provisions of this kind with the Convention if they are not restricted in application to the circumstances contemplated in Article 2(2), and the kinds of measures taken in some countries to remedy the situation. It notes the Government's indication that the Act has not yet been amended. The Committee would hope the tripartite task force mentioned by the Government would be able to discuss means whereby desirable outcomes can still be achieved without offending the Convention, and that the Government will take steps to amend section 10(1)(p), (q) and (u) of the Swaziland Administration Act in order to ensure compliance with the Convention. Please include in the next report information on progress made in that respect, as well as on the manner in which the provisions are in the meantime being applied in practice.

CMNT_TITLE

The Committee notes that the Government's report contains no reply to previous comments. It hopes that the next report will include full information on the following matters raised in its previous direct request:

The Committee recalls that its comments relate to certain provisions of the Swaziland Administration Act, No. 79 of 1950:

1. The Committee observed that under section 10(1)(p) of the Swaziland Administration Act, orders may be issued requiring any Swazi to cultivate land to such extent and with such crops as will secure an adequate supply of food for his support and that of his dependents. The Government stated in this connection that the food produced remains the worker's property, that the provision is used as a method of precaution against deficiency of food supplies and that it reflects a long-standing custom, under which the food thus produced is used by the chief, who has responsibility to ensure his people have enough food, and at times by the community.

The Committee observed that on condition that the food remains the property of the individual, Article 19 of the Convention authorizes recourse to compulsory cultivation, but only as a method of precaution against famine or a deficiency of food supplies. The Committee noted however that while section 11 of the Swaziland Administration Act No. 79 of 1950 is limited in scope to such cases of emergency, section 10(1)(p) is not. The Committee likewise noted that while the powers of chiefs are limited under section 11 of the Act to cases when "there is or is likely to be such shortage of food that famine exists or is likely to ensue", no such limitations are provided for regarding orders made under section 10(1)(p).

Having regard also to the actual practice mentioned by the Government, the Committee expressed the hope that the necessary measures would be taken to bring legislation into conformity with the Convention on this point. The Committee suggested in this relation that the Government might envisage inserting at the beginning of section 10(1)(p) the words: "when there is or is likely to be such shortage of food that a famine exists or is likely to ensue" and insert after the world "food" the words: "which will remain his property" (having regard to the custom referred to by the Government that the supply of food produced remains the worker's property).

The Committee expresses the hope that the review of legislation will also take into consideration the Swaziland Administration Act and that the Government will be in a position to indicate in its next report the amendments made.

2. The Committee also referred to section 10(1)(q) of the Swaziland Administration Act, under which orders may be issued to be obeyed by Swazis, preventing soil erosion and for the protection and construction of anti-soil erosion work as well as to section 10(1)(u) providing for the making, maintenance and protection of roads.

The Government has indicated in 1982 that steps were being taken to amend section 10(1) of the Act. In 1987 the Government stated that section 10(1)(q) was being used to prevent soil erosion and to encourage people to engage in agriculture, considered as minor communal services forming part of normal civic obligations, given the shortage of home-produced food. The Government added that this policy of encouragement, known as "EKHAYA" Policy, was declared in 1985, and had met with a good response among some of those previously unemployed in towns. As regards section 10(1)(u) of the Act, the Government stated that it had been used after a case of natural calamity in 1984.

While taking note of these explanations the Committee pointed out that sections 10(1)(q) and 10(1)(u) are not limited to the exceptions regarding minor communal services and emergency work as defined in Article 2, paragraphs 2(e) and 2(d), of the Convention: the level and magnitude of the services imposed are not limited (orders under section 10(1) may be issued at the national level by the King, and enforced against the opposition of the area chief (section 12)), and consultation of the local community or its representatives is not required. Similarly, neither sections 10(1)(q) nor 10(1)(u) are limited in scope to emergency work required in circumstances that would endanger the existence or well-being of the whole or part of the population.

As regards actual practice, the Committee noted that section 10(1)(q) had been used since 1985 to transfer persons previously unemployed in towns to agricultural work with a view to reducing dependence on food imports. The Committee pointed out, referring also to point 1 above, that compulsory labour for such purposes was not compatible with the Convention.

The Committee expressed the hope that the Government would henceforth rely on free labour for agricultural production as well as for the building, maintenance and protection of roads benefiting a wider group that a local community, and that sections 10(1)(q) and 10(1)(u) of the Swaziland Administration Act, would be amended to ensure observance of the Convention. Noting the Government's statement that steps were being taken to insert consultation requirements as in section 144(4) of the Employment Act into the Swaziland Administration Act, the Committee expressed the hope that the requirements of Article 2, paragraph 2(e), of the Convention regarding the minor nature of the work and its local purview would likewise be embodied.

The Committee again expresses the hope that the Government will indicate the measures taken and report on the amendments made.

The Committee also hopes that the Government will indicate the manner in which the "EKHAYA" Policy is being implemented.

CMNT_TITLE

The Committee notes the Government's information in its report that the Minister of Labour and Public Service has appointed a Tripartite Commission to examine all aspects of labour and that comments will be taken into consideration during the discussion of the final draft of the report.

The Committee recalls that its comments relate to certain provisions of the Swaziland Administration Act, No. 79 of 1950:

1. The Committee observed that under section 10(1)(p) of the Swaziland Administration Act, orders may be issued requiring any Swazi to cultivate land to such extent and with such crops as will secure an adequate supply of food for his support and that of his dependents. The Government stated in this connection that the food produced remains the worker's property, that the provision is used as a method of precaution against deficiency of food supplies and that it reflects a long-standing custom, under which the food thus produced is used by the chief, who has responsibility to ensure his people have enough food, and at times by the community.

The Committee observed that on condition that the food remains the property of the individual, Article 19 of the Convention authorizes recourse to compulsory cultivation, but only as a method of precaution against famine or a deficiency of food supplies. The Committee noted however that while section 11 of the Swaziland Administration Act No. 79 of 1950 is limited in scope to such cases of emergency, section 10(1)(p) is not. The Committee likewise noted that while the powers of chiefs are limited under section 11 of the Act to cases when "there is or is likely to be such shortage of food that famine exists or is likely to ensue", no such limitations are provided for regarding orders made under section 10(1)(p).

Having regard also to the actual practice mentioned by the Government, the Committee expressed the hope that the necessary measures would be taken to bring legislation into conformity with the Convention on this point. The Committee suggested in this relation that the Government might envisage inserting at the beginning of section 10(1)(p) the words: "when there is or is likely to be such shortage of food that a famine exists or is likely to ensue" and insert after the world "food" the words: "which will remain his property" (having regard to the custom referred to by the Government that the supply of food produced remains the worker's property).

The Committee expresses the hope that the review of legislation will also take into consideration the Swaziland Administration Act and that the Government will be in a position to indicate in its next report the amendments made.

2. The Committee also referred to section 10(1)(q) of the Swaziland Administration Act, under which orders may be issued to be obeyed by Swazis, preventing soil erosion and for the protection and construction of anti-soil erosion work as well as to section 10(1)(u) providing for the making, maintenance and protection of roads.

The Government has indicated in 1982 that steps were being taken to amend section 10(1) of the Act. In 1987 the Government stated that section 10(1)(q) was being used to prevent soil erosion and to encourage people to engage in agriculture, considered as minor communal services forming part of normal civic obligations, given the shortage of home-produced food. The Government added that this policy of encouragement, known as "EKHAYA" Policy, was declared in 1985, and had met with a good response among some of those previously unemployed in towns. As regards section 10(1)(u) of the Act, the Government stated that it had been used after a case of natural calamity in 1984.

While taking note of these explanations the Committee pointed out that sections 10(1)(q) and 10(1)(u) are not limited to the exceptions regarding minor communal services and emergency work as defined in Article 2, paragraphs 2(e) and 2(d), of the Convention: the level and magnitude of the services imposed are not limited (orders under section 10(1) may be issued at the national level by the King, and enforced against the opposition of the area chief (section 12)), and consultation of the local community or its representatives is not required. Similarly, neither sections 10(1)(q) nor 10(1)(u) are limited in scope to emergency work required in circumstances that would endanger the existence or well-being of the whole or part of the population.

As regards actual practice, the Committee noted that section 10(1)(q) had been used since 1985 to transfer persons previously unemployed in towns to agricultural work with a view to reducing dependence on food imports. The Committee pointed out, referring also to point 1 above, that compulsory labour for such purposes was not compatible with the Convention.

The Committee expressed the hope that the Government would henceforth rely on free labour for agricultural production as well as for the building, maintenance and protection of roads benefiting a wider group that a local community, and that sections 10(1)(q) and 10(1)(u) of the Swaziland Administration Act, would be amended to ensure observance of the Convention. Noting the Government's statement that steps were being taken to insert consultation requirements as in section 144(4) of the Employment Act into the Swaziland Administration Act, the Committee expressed the hope that the requirements of Article 2, paragraph 2(e), of the Convention regarding the minor nature of the work and its local purview would likewise be embodied.

The Committee again expresses the hope that the Government will indicate the measures taken and report on the amendments made.

The Committee also hopes that the Government will indicate the manner in which the "EKHAYA" Policy is being implemented.

CMNT_TITLE

The Committee notes the Government's indication in its report received on 26 March 1992 that a detailed report on the Committee's comments was being prepared, jointly with the tripartite Sub-Committee of the Labour Advisory Board.

The Committee notes however that no report was since received. The Committee expresses once more the hope that the Government will provide in its next report detailed information on progress made concerning the following matters raised previously:

1. In comments made for several years, the Committee observed that under section 10(1)(p) of the Swaziland Administration Act, No. 79 of 1950, orders may be issued requiring any Swazi to cultivate land to such an extent and with such crops as will secure an adequate supply of food for his support and that of his dependants. The Committee noted the Government's statement that under section 10(1)(p) of the Swaziland Administration Act, the adequate supply of food produced remains the worker's property. The Committee observed that on condition that the food remains the property of the individual, Article 19 of the Convention authorizes recourse to compulsory cultivation but only as a method of precaution against famine or a deficiency of food supplies; while section 11 of the Swaziland Administration Act, No. 79 of 1950, is limited in scope to such case of emergencies, section 10(1)(p) is not.

In its report for the period ending June 1987 the Government stated that section 10(1)(p) is used as a method of precaution against deficiency of food supplies. While reaffirming that under the terms of this provision the food remains the property of the individual, the Government added that the provision reflects long-standing custom, under which the food thus produced is used by the chief, who has a responsibility to ensure his people have enough food, and at times by the community.

The Committee took note of these indications. It observed that, while powers of chiefs under section 11 of the Swaziland Administration Act are limited to cases when "there is or is likely to be such shortage of food that a famine exists or is likely to ensue", no such limitation is provided regarding orders made under section 10(1)(p) of the Act. The Committee accordingly expressed the hope that, having regard also to actual practice as mentioned by the Government, the necessary measures will be taken to bring the legislation into conformity with the Convention on this point, e.g. by inserting at the beginning of section 10(1)(p) the words "when there is or is likely to be such shortage of food that a famine exists or is likely to ensue -". Having regard also to the custom referred to by the Government, it appears furthermore necessary to clarify the ownership of the food produced, e.g. by inserting in section 10(1)(p), after the word "food" the words: "which will remain his property".

The Committee hopes that the Government will be in a position to indicate in its next report the amendments made.

2. The Committee previously also referred to section 10(1)(q) of the Swaziland Administration Act, under which orders may be issued to be obeyed by Swazis, preventing soil erosion and for the protection and construction of anti-soil erosion work, and to section 10(1)(u), providing for the making, maintenance and protection of roads. The Committee had expressed the hope that these provisions would be amended so as to restrict orders to minor communal services falling within Article 2, paragraph 2(e), of the Convention, and the Government had indicated in its report received in 1982 that steps were being taken to amend section 10(1) of the Act.

In its report for the period ending 30 June 1987, the Government stated that section 10(1)(q) of the Swaziland Administration Act is being used to prevent soil erosion and to encourage people to engage in agriculture, which it considers as minor communal services forming part of normal civic obligations, given the shortage of home-produced food. The Government added that this policy of encouragement, which is known as "EKHAYA" Policy, was declared in early 1985, has met with a good response among some of those previously unemployed in towns, and is designed in particular to reduce dependence on food imports from South Africa. As regards section 10(1)(u) of the same Act, the Government stated that it was used particularly after a cyclone in 1984, i.e. a case of natural calamity under Article 2, paragraph 2(d), of the Convention, but that recourse to this provision has since dropped off.

The Committee took note of these indications. It pointed out, however, that the present wording of section 10(1)(q) and (u) of the Swaziland Administration Act is not limited to the exceptions regarding minor communal services and emergency work, as defined in Article 2, paragraph 2(e) and (d), of the Convention. As the Committee explained in paragraph 37 of its 1979 General Survey on the Abolition of Forced Labour, the scope of Article 2, paragraph 2(e), is limited by three criteria:

- the services must be "minor services", i.e. relate primarily to maintenance work and - in exceptional cases - to the erection of certain buildings intended to improve the social conditions of the population of the community itself (a small school, a medical consultation and treatment room, etc.);

- 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; and

- the "members of the community" (i.e. the community which has to perform the services) or their "direct" representatives (e.g. the village council) must "have the right to be consulted in regard to the need for such services".

None of these limitations is embodied in section 10(1)(q) and (u) of the Act, since the level and magnitude of the services imposed are not limited; orders under section 10(1) may be issued at the national level by the King in Council and enforced against the opposition of the area chief (section 12), and consultation of the local community or its representatives is not required. Similarly, neither section 10(1)(q) nor (u) are limited in scope to emergency work required in circumstances that would endanger the existence or well-being of the whole or part of the population.

As regards actual practice, the Committee noted from the Government's report that section 10(1)(q), although formally limited to anti-erosion work has been used since 1985 to transfer persons previously unemployed in towns to agricultural work with a view to reducing dependence on food imports. Referring also to the explanations in point 1 above, the Committee must point out once again that compulsory labour for such purposes is not compatible with the Convention.

Having regard to the Government's assurances that its policy has met with a good response from those concerned, the Committee trusts that the Government will henceforth rely on free labour for agricultural production as well as for the building, maintenance and protection of roads benefiting a wider group than a local community, and that section 10(1)(q) and (u) of the Swaziland Administration Act will be amended, as announced by the Government in 1982, so as to ensure observance of the Convention. In this connection the Committee noted with interest the Government's statement that steps were being taken to insert consultation requirements as in section 144(4) of the Employment Act into the Swaziland Administration Act. It again expresses the hope that the requirements of Article 2, paragraph 2(e), of the Convention regarding the minor nature of the work and its local purview will likewise be embodied.

The Committee again requests the Government to indicate in its next report the measures taken to this effect and also to supply details on the manner in which the "EKHAYA" Policy is being implemented, indicating the number of people involved, their home towns or areas and places of affectation, and their rights and duties.

CMNT_TITLE

With reference to its direct requests of 1990 and 1991, the Committee notes with regret that the Government states once again in its report that there has been no change. The Committee hopes that the Government will provide detailed information in its next report on progress made concerning the following matters raised previously:

1. In comments made for several years, the Committee observed that under section 10(1)(p) of the Swaziland Administration Act, No. 79 of 1950, orders may be issued requiring any Swazi to cultivate land to such an extent and with such crops as will secure an adequate supply of food for his support and that of his dependants. The Committee noted the Government's statement that under section 10(1)(p) of the Swaziland Administration Act, the adequate supply of food produced remains the worker's property. The Committee observed that on condition that the food remains the property of the individual, Article 19 of the Convention authorises recourse to compulsory cultivation but only as a method of precaution against famine or a deficiency of food supplies; while section 11 of the Swaziland Administration Act, No. 79 of 1950, is limited in scope to such case of emergencies, section 10(1)(p) is not.

In its report for the period ending June 1987 the Government stated that section 10(1)(p) is used as a method of precaution against deficiency of food supplies. While reaffirming that under the terms of this provision the food remains the property of the individual, the Government added that the provision reflects long-standing custom, under which the food thus produced is used by the chief, who has a responsibility to ensure his people have enough food, and at times by the community.

The Committee took note of these indications. It observed that, while powers of chiefs under section 11 of the Swaziland Administration Act are limited to cases when "there is or is likely to be such shortage of food that a famine exists or is likely to ensue", no such limitation is provided regarding orders made under section 10(1)(p) of the Act. The Committee accordingly expressed the hope that, having regard also to actual practice as mentioned by the Government, the necessary measures will be taken to bring the legislation into conformity with the Convention on this point, e.g. by inserting at the beginning of section 10(1)(p) the words "when there is or is likely to be such shortage of food that a famine exists or is likely to ensue -". Having regard also to the custom referred to by the Government, it appears furthermore necessary to clarify the ownership of the food produced, e.g. by inserting in section 10(1)(p), after the word "food" the words: "which will remain his property".

The Committee hopes that the Government will be in a position to indicate in its next report the amendments made.

2. The Committee previously also referred to section 10(1)(q) of the Swaziland Administration Act, under which orders may be issued to be obeyed by Swazis, preventing soil erosion and for the protection and construction of anti-soil erosion work, and to section 10(1)(u), providing for the making, maintenance and protection of roads. The Committee had expressed the hope that these provisions would be amended so as to restrict orders to minor communal services falling within Article 2, paragraph 2(e), of the Convention, and the Government had indicated in its report received in 1982 that steps were being taken to amend section 10(1) of the Act.

In its report for the period ending 30 June 1987, the Government stated that section 10(1)(q) of the Swaziland Administration Act is being used to prevent soil erosion and to encourage people to engage in agriculture, which it considers as minor communal services forming part of normal civic obligations, given the shortage of home-produced food. The Government added that this policy of encouragement, which is known as "EKHAYA" Policy, was declared in early 1985, has met with a good response among some of those previously unemployed in towns, and is designed in particular to reduce dependence on food imports from South Africa. As regards section 10(1)(u) of the same Act, the Government stated that it was used particularly after a cyclone in 1984, i.e. a case of natural calamity under Article 2, paragraph 2(d), of the Convention, but that recourse to this provision has since dropped off.

The Committee took note of these indications. It pointed out, however, that the present wording of section 10(1)(q) and (u) of the Swaziland Administration Act is not limited to the exceptions regarding minor communal services and emergency work, as defined in Article 2, paragraph 2(e) and (d), of the Convention. As the Committee explained in paragraph 37 of its 1979 General Survey on the Abolition of Forced Labour, the scope of Article 2, paragraph 2(e), is limited by three criteria:

- the services must be "minor services", i.e. relate primarily to maintenance work and - in exceptional cases - to the erection of certain buildings intended to improve the social conditions of the population of the community itself (a small school, a medical consultation and treatment room, etc.);

- 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; and

- the "members of the community" (i.e. the community which has to perform the services) or their "direct" representatives (e.g. the village council) must "have the right to be consulted in regard to the need for such services".

None of these limitations is embodied in section 10(1)(q) and (u) of the Act, since the level and magnitude of the services imposed are not limited; orders under section 10(1) may be issued at the national level by the King in Council and enforced against the opposition of the area chief (section 12), and consultation of the local community or its representatives is not required. Similarly, neither section 10(1)(q) nor (u) are limited in scope to emergency work required in circumstances that would endanger the existence or well-being of the whole or part of the population.

As regards actual practice, the Committee noted from the Government's report that section 10(1)(q), although formally limited to anti-erosion work has been used since 1985 to transfer persons previously unemployed in towns to agricultural work with a view to reducing dependence on food imports. Referring also to the explanations in point 1 above, the Committee must point out once again that compulsory labour for such purposes is not compatible with the Convention.

Having regard to the Government's assurances that its policy has met with a good response from those concerned, the Committee trusts that the Government will henceforth rely on free labour for agricultural production as well as for the building, maintenance and protection of roads benefiting a wider group than a local community, and that section 10(1)(q) and (u) of the Swaziland Administration Act will be amended, as announced by the Government in 1982, so as to ensure observance of the Convention. In this connection the Committee noted with interest the Government's statement that steps were being taken to insert consultation requirements as in section 144(4) of the Employment Act into the Swaziland Administration Act. It again expresses the hope that the requirements of Article 2, paragraph 2(e), of the Convention regarding the minor nature of the work and its local purview will likewise be embodied.

The Committee again requests the Government to indicate in its next report the measures taken to this effect and also to supply details on the manner in which the "EKHAYA" Policy is being implemented, indicating the number of people involved, their home towns or areas and places of affectation, and their rights and duties.

CMNT_TITLE

With reference to its previous direct request, the Committee notes the Government's statement in its report that there has been no change. The Committee expresses the hope that the Government will soon report on progress made concerning the following matters raised previously.

1. In comments made for several years, the Committee observed that under section 10(1)(p) of the Swaziland Administration Act, No. 79 of 1950, orders may be issued requiring any Swazi to cultivate land to such an extent and with such crops as will secure an adequate supply of food for his support and that of his dependants. The Committee noted the Government's statement that under section 10(1)(p) of the Swaziland Administration Act, the adequate supply of food produced remains the worker's property. The Committee observed that on condition that the food remains the property of the individual, Article 19 of the Convention authorises recourse to compulsory cultivation but only as a method of precaution against famine or a deficiency of food supplies; while section 11 of the Swaziland Administration Act, No. 79 of 1950, is limited in scope to such case of emergencies, section 10(1)(p) is not.

In its report for the period ending June 1987 the Government stated that section 10(1)(p) is used as a method of precaution against deficiency of food supplies. While reaffirming that under the terms of this provision the food remains the property of the individual, the Government added that the provision reflects long-standing custom, under which the food thus produced is used by the chief, who has a responsibility to ensure his people have enough food, and at times by the community.

The Committee took note of these indications. It observed that, while powers of chiefs under section 11 of the Swaziland Administration Act are limited to cases when "there is or is likely to be such shortage of food that a famine exists or is likely to ensue", no such limitation is provided regarding orders made under section 10(1)(p) of the Act. The Committee accordingly hopes that, having regard also to actual practice as mentioned by the Government, the necessary measures will be taken to bring the legislation into conformity with the Convention on this point, e.g. by inserting at the beginning of section 10(1)(p) the words "when there is or is likely to be such shortage of food that a famine exists or is likely to ensue -". Having regard also to the custom referred to by the Government, it appears furthermore necessary to clarify the ownership of the food produced, e.g. by inserting in section 10(1)(p), after the word "food" the words: "which will remain his property". The Committee hopes that the Government will be in a position to indicate in its next report the amendments made.

2. The Committee previously also referred to section 10(1)(q) of the Swaziland Administration Act, under which orders may be issued to be obeyed by Swazis, preventing soil erosion and for the protection and construction of anti-soil erosion work, and to section 10(1)(u), providing for the making, maintenance and protection of roads. The Committee had expressed the hope that these provisions would be amended so as to restrict orders to minor communal services falling within Article 2, paragraph (2)(e), of the Convention, and the Government had indicated in its report received in 1982 that steps were being taken to amend section 10(1) of the Act.

In its report for the period ending 30 June 1987, the Government stated that section 10(1)(q) of the Swaziland Administration Act is being used to prevent soil erosion and to encourage people to engage in agriculture, which it considers as minor communal services forming part of normal civic obligations, given the shortage of home-produced food. The Government added that this policy of encouragement, which is known as "EKHAYA" Policy, was declared in early 1985, has met with a good response among some of those previously unemployed in towns, and is designed in particular to reduce dependence on food imports from South Africa. As regards section 10(1)(u) of the same Act, the Government stated that it was used particularly after a cyclone in 1984, i.e. a case of natural calamity under Article 2, paragraph (2)(d), of the Convention, but that recourse to this provision has since dropped off.

The Committee took note of these indications. It pointed out, however, that the present wording of section 10(1)(q) and (u) of the Swaziland Administration Act is not limited to the exceptions regarding minor communal services and emergency work, as defined in Article 2, paragraph 2(e) and (d), of the Convention. As the Committee explained in paragraph 37 of its 1979 General Survey on the Abolition of Forced Labour, the scope of Article 2, paragraph (2)(e), is limited by three criteria:

- the services must be "minor services", i.e. relate primarily to maintenance work and - in exceptional cases - to the erection of certain buildings intended to improve the social conditions of the population of the community itself (a small school, a medical consultation and treatment room, etc.);

- 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; and

- the "members of the community" (i.e. the community which has to perform the services) or their "direct" representatives (e.g. the village council) must "have the right to be consulted in regard to the need for such services".

None of these limitations is embodied in section 10(1)(q) and (u) of the Act, since the level and magnitude of the services imposed are not limited; orders under section 10(1) may be issued at the national level by the King in Council and enforced against the opposition of the area chief (section 12), and consultation of the local community or its representatives is not required. Similarly, neither section 10(1)(q) nor (u) are limited in scope to emergency work required in circumstances that would endanger the existence or well-being of the whole or part of the population.

As regards actual practice, the Committee noted from the Government's report that section 10(1)(q), although formally limited to anti-erosion work has been used since 1985 to transfer persons previously unemployed in towns to agricultural work with a view to reducing dependence on food imports. Referring also to the explanations in point 1 above, the Committee must point out that compulsory labour for such purposes is not compatible with the Convention.

Having regard to the Government's assurances that its policy has met with a good response from those concerned, the Committee trusts that the Government will henceforth rely on free labour for agricultural production as well as for the building, maintenance and protection of roads benefiting a wider group than a local community, and that section 10(1)(q) and (u) of the Swaziland Administration Act will be amended, as announced by the Government in 1982, so as to ensure observance of the Convention. In this connection the Committee noted with interest the Government's statement that steps are being taken to insert consultation requirements as in section 144(4) of the Employment Act into the Swaziland Administration Act, and hopes that the requirements of Article 2, paragraph (2)(e), of the Convention regarding the minor nature of the work and its local purview will likewise be embodied.

The Committee requests the Government to indicate in its next report the measures taken to this effect and also to supply details on the manner in which the "EKHAYA" Policy is being implemented, indicating the number of people involved, their home towns or areas and places of affectation, and their rights and duties.

CMNT_TITLE

The Committee notes that no report has been received from the Government. 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:

1. In comments made for several years, the Committee observed that under section 10(1)(p) of the Swaziland Administration Act, No. 79 of 1950, orders may be issued requiring any Swazi to cultivate land to such an extent and with such crops as will secure an adequate supply of food for his support and that of his dependants. The Committee noted the Government's statement that under section 10(1)(p) of the Swaziland Administration Act, the adequate supply of food produced remains the worker's property. The Committee observed that on condition that the food remains the property of the individual, Article 19 of the Convention authorises recourse to compulsory cultivation but only as a method of precaution against famine or a deficiency of food supplies; while section 11 of the Swaziland Administration Act, No. 79 of 1950, is limited in scope to such case of emergencies, section 10(1)(p) is not.

In its report for the period ending June 1987 the Government stated that section 10(1)(p) is used as a method of precaution against deficiency of food supplies. While reaffirming that under the terms of this provision the food remains the property of the individual, the Government added that the provision reflects long-standing custom, under which the food thus produced is used by the chief, who has a responsibility to ensure his people have enough food, and at times by the community.

The Committee took note of these indications. It observed that, while powers of chiefs under section 11 of the Swaziland Administration Act are limited to cases when "there is or is likely to be such shortage of food that a famine exists or is likely to ensue", no such limitation is provided regarding orders made under section 10(1)(p) of the Act. The Committee accordingly hopes that, having regard also to actual practice as mentioned by the Government, the necessary measures will be taken to bring the legislation into conformity with the Convention on this point, e.g. by inserting at the beginning of section 10(1)(p) the words "when there is or is likely to be such shortage of food that a famine exists or is likely to ensue -". Having regard also to the custom referred to by the Government, it appears furthermore necessary to clarify the ownership of the food produced, e.g. by inserting in section 10(1)(p), after the word "food" the words: "which will remain his property". The Committee hopes that the Government will be in a position to indicate in its next report the amendments made.

2. The Committee previously also referred to section 10(1)(q) of the Swaziland Administration Act, under which orders may be issued to be obeyed by Swazis, preventing soil erosion and for the protection and construction of anti-soil erosion work, and to section 10(1)(u), providing for the making, maintenance and protection of roads. The Committee had expressed the hope that these provisions would be amended so as to restrict orders to minor communal services falling within Article 2, paragraph (2)(e), of the Convention, and the Government had indicated in its report received in 1982 that steps were being taken to amend section 10(1) of the Act.

In its report for the period ending 30 June 1987, the Government stated that section 10(1)(q) of the Swaziland Administration Act is being used to prevent soil erosion and to encourage people to engage in agriculture, which it considers as minor communal services forming part of normal civic obligations, given the shortage of home-produced food. The Government added that this policy of encouragement, which is known as "EKHAYA" Policy, was declared in early 1985, has met with a good response among some of those previously unemployed in towns, and is designed in particular to reduce dependence on food imports from South Africa. As regards section 10(1)(u) of the same Act, the Government stated that it was used particularly after a cyclone in 1984, i.e. a case of natural calamity under Article 2, paragraph (2)(d), of the Convention, but that recourse to this provision has since dropped off.

The Committee took note of these indications. It pointed out, however, that the present wording of section 10(1)(q) and (u) of the Swaziland Administration Act is not limited to the exceptions regarding minor communal services and emergency work, as defined in Article 2, paragraph (2)(e) and (d), of the Convention. As the Committee explained in paragraph 37 of its 1979 General Survey on the Abolition of Forced Labour, the scope of Article 2, paragraph (2)(e), is limited by three criteria:

- the services must be "minor services", i.e. relate primarily to maintenance work and - in exceptional cases - to the erection of certain buildings intended to improve the social conditions of the population of the community itself (a small school, a medical consultation and treatment room, etc.);

- 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; and

- the "members of the community" (i.e. the community which has to perform the services) or their "direct" representatives (e.g. the village council) must "have the right to be consulted in regard to the need for such services".

None of these limitations is embodied in section 10(1)(q) and (u) of the Act, since the level and magnitude of the services imposed are not limited; orders under section 10(l) may be issued at the national level by the King in Council and enforced against the opposition of the area chief (section 12), and consultation of the local community or its representatives is not required. Similarly, neither section 10(1)(q) nor (u) are limited in scope to emergency work required in circumstances that would endanger the existence or well-being of the whole or part of the population.

As regards actual practice, the Committee noted from the Government's report that section 10(1)(q), although formally limited to anti-erosion work has been used since 1985 to transfer persons previously unemployed in towns to agricultural work with a view to reducing dependence on food imports. Referring also to the explanations in point 1 above, the Committee must point out that compulsory labour for such purposes is not compatible with the Convention.

Having regard to the Government's assurances that its policy has met with a good response from those concerned, the Committee trusts that the Government will henceforth rely on free labour for agricultural production as well as for the building, maintenance and protection of roads benefiting a wider group than a local community, and that section 10(1)(q) and (u) of the Swaziland Administration Act will be amended, as announced by the Government in 1982, so as to ensure observance of the Convention. In this connection the Committee noted with interest the Government's statement that steps are being taken to insert consultation requirements as in section 144(4) of the Employment Act into the Swaziland Administration Act, and hopes that the requirements of Article 2, paragraph (2)(e), of the Convention regarding the minor importance of the work and its local purview will likewise be embodied.

The Committee requests the Government to indicate in its next report the measures taken to this effect and also to supply details on the manner in which the "EKHAYA" Policy is being implemented, indicating the number of people involved, their home towns or areas and places of affectation, and their rights and duties.