Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Forced Labour Convention, 1930 (No. 29) - Democratic Republic of the Congo (Ratification: 1960)

Articles 1(1) and 2(1) of the Convention. Forced labour and sexual slavery in the context of an armed conflict. The Committee notes the different reports of the Office of the United Nations High Commissioner for Human Rights and of the special rapporteurs on the situation in the Democratic Republic of the Congo. These reports highlight the gravity of the human rights situation in the country – both in the zones where hostilities have resumed and in areas that have not been affected by the conflict – and refer to violations committed by the state security forces and other armed groups, including cases of forced labour and sexual slavery. The Committee notes that in the second joint report of seven United Nations experts on the situation in the Democratic Republic of the Congo, the experts noted that the mines in the Kivus continue to be exploited by armed groups, especially the Armed Forces of the Democratic Republic of the Congo (FARDC) and expressed their concern at “reports that civilians are still subjected to forced labour, extortion and illegal taxation, and that sexual exploitation of women and girls is rife in these mining areas”. The Committee also notes that, according to this report, “women and girls have been abducted and held as sexual slaves both by FARDC members and other armed actors, and have been subject to collective rapes for weeks and months, often accompanied by additional atrocities” (document A/HRC/13/63 of 8 March 2010). Considering the gravity of the facts, the Committee expresses its deep concern and urges the Government to take all the urgent and necessary measures to bring an immediate end to these practices which constitute a most serious violation of the Convention, and to ensure that adequate sanctions are imposed on perpetrators.

Article 25. Penal sanctions. In its previous comments, the Committee noted that, under section 323 of the Labour Code, any infringement of section 2.3, which prohibits the use of forced or compulsory labour, shall be punished by a maximum of six months’ imprisonment plus a fine or by only one of these penalties, without prejudice to criminal legislation laying down more severe penalties. Emphasizing that the sanctions envisaged in the Labour Code are not very dissuasive, the Committee asked the Government to specify the penal provisions which prohibit and penalize recourse to forced labour. The Committee notes that the Government has not provided any information in this regard. It also notes that the 1940 Penal Code (as amended up to 2004) does not appear to include such provisions. The Committee asks the Government to take the necessary measures to include in the penal legislation provisions establishing adequate sanctions for persons who exact forced labour, in accordance with Article 25 of the Convention. It also requests the Government to indicate how, in practice, the authorities institute legal proceedings and punish persons who exact forced labour.

Abrogation of legislation allowing for the exaction of work for national development purposes, as a means of levying taxes and by persons in preventive detention.  For several years, the Committee has been requesting the Government to amend or repeal the following legislative texts and regulations, which are contrary to the Convention:

–           Act No. 76-011 of 21 May 1976 concerning national development efforts and its Implementing Order, Departmental Order No. 00748/BCE/AGRI/76 of 11 June 1976 concerning the performance of civic tasks in the context of the national food production programme: these legal texts, which aim to increase productivity in all sectors of national life, require, subject to penal sanctions, every able-bodied adult person who is not already considered to be making his contribution by reason of his employment (political representatives, employed persons and apprentices, public servants, traders, members of the liberal professions, the clergy, students and pupils) to carry out agricultural and other development work as decided by the Government;

–           Legislative Ordinance No. 71/087 of 14 September 1971 on the minimum personal contribution, sections 18 to 21 which provide for imprisonment involving compulsory labour, upon decision of the chief of the local community or the area commissioner, of taxpayers who have defaulted on their minimum personal contributions.

The Committee previously noted the Government’s reiterated indications, first referring to draft amendments to these texts and then indicating that they have lapsed and have therefore been repealed in practice. In its report, the Government again indicates that these texts are no longer applied. In reply to the Committee’s request to formally repeal these texts to provide guarantees of legal security, the Government indicates that legal security is ensured by both the 2006 Constitution and the 2002 Labour Code, which prohibit the use of forced labour, and by section 332 of the Labour Code, which provides that all the previous conflicting provisions are repealed and replaced, and that only the institutions, procedures and regulations which do not conflict with the new Labour Code still remain in force. The Committee notes the Government’s view, according to which legal security is not compromised by the absence of the formal repeal of these texts.

With reference to Ordinance No. 15/APAJ of 20 January 1938 concerning the prison system in indigenous districts, which allows work to be exacted from detainees who have not been convicted, the Government indicates that detainees who have not been convicted are only subject to the obligation to clean their cells and sanitary installations. The Committee expresses the hope that during the next revision on the penal legislation or on the regulations on the prison system, the Government will take the necessary measures to repeal Ordinance No. 15/APAJ of 20 January 1938 which is not in the list of texts that have been repealed by Ordinance No. 344 of 15 September 1965 respecting prison labour.

[The Government is asked to supply full particulars to the Conference at its 100th Session and to reply in detail to the present comments in 2011.]