Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Democratic Republic of the Congo (Ratification: 2001)

The Committee notes from the third joint report of seven United Nations experts on the situation in the Democratic Republic of the Congo (A/HRC/16/68, 9 March 2011) that the human rights situation in the country remains of serious concern, especially in the east of the country. The Committee notes particularly the concerns expressed with respect to sexual violence against women, including systematic and mass rape, and related impunity, as highlighted in the most recent report submitted by the United Nations High Commissioner for Human Rights (A/HRC/16/27, 10 January 2011). The Committee notes that the recommendations to the Government in the report include repealing all provisions of law that discriminate against women, denouncing publically and unequivocally all forms of forms of violence against women, and ensuring that the judicial system brings the perpetrators of such violations to justice promptly and impartially. The Committee notes that according to the report, sexual violence remains widespread despite the Government’s efforts to stop it and the phenomenon is rampant throughout the country and affects thousands of women. The recent mass rapes committed in Walikale territory exemplify this scourge. The Committee further notes that the UN High Commissioner for Human Rights considers that the situation of women will remain precarious as long as the State fails to tackle in earnest the social roots of sexual violence, i.e. women’s inferior social, economic and political status in Congolese society. The Committee recalls that the objective of the Convention, notably equality of opportunity between men and women in employment and occupation cannot be achieved in a general context of serious human rights violations and inequality in society. Considering the serious concerns raised regarding the human rights situation and its particular effects on women due to their inferior economic and social status in society, the Committee urges the Government to take all the necessary measures to address the inferior position of women in society reflected in sexual violence against women and discriminatory laws, which it considers has a serious impact on the application of the principles of the Convention. In this context, the Committee also urges the Government to create all the necessary conditions to give effect to the provisions of the Convention.

The Committee notes the Government’s very brief report in reply to its previous observation, in which it raised issues relating to the legislative prohibition of discrimination in employment and occupation, discrimination based on sex, and discrimination based on race or ethnic origin.

Articles 1 and 2 of the Convention. Prohibition of discrimination in employment and occupation. The Committee recalls that, although section 1 provides that the Labour Code applies to all employers and all workers, with the exception of state public services, regardless of race, sex, civil status, religion, political opinion, national extraction and social origin, the Labour Code contains no provisions prohibiting and defining discrimination in employment and occupation. Act No. 81/003 of 17 July 1981 on the conditions of service of career members of the state public service also lacks anti-discrimination provisions. The Committee notes that the Government repeats its statement that it will include provisions prohibiting and defining indirect and direct discrimination in employment and occupation, including in respect of recruitment, once it has been determined when the revision of the Labour Code will take place. The Committee urges the Government to make progress in this regard and asks the Government to indicate all steps with a view to including provisions in the Labour Code and Act No. 81/003 defining and prohibiting direct and indirect discrimination, in all aspects of employment and occupation, on at least all the grounds enumerated in the Convention.

Discrimination based on sex. The Committee previously noted that certain provisions of the Family Code, of Act No. 81/003 of 17 July 1981, on the conditions of service of career members of the state public services, and of the Legislative Ordinance No. 88-056 of 29 September 1988, respecting the activities of magistrates, constituted discrimination on grounds of sex in employment and occupation contrary to the Convention. The Committee recalls that sections 448 and 497 of Act No. 87/010 of 1 August 1987, enacting the Family Code, appear to indicate that, in certain cases, a woman has to obtain the authorization of her husband to take up salaried employment, whereas no such obligation is imposed upon the husband. In relation to jobs in the public service, section 8 of Act No. 81/003 of 17 July 1981 and section 1(7) of Legislative Ordinance No. 88-056 of 29 September 1988 provide that a married woman must have obtained the permission of her spouse to be recruited as a career member of the public service or appointed as a magistrate. The Committee notes the Government’s statement that the Statute of magistrates will be communicated in its next report and that the Statute of the public administration has not yet been promulgated. The Committee having previously noted that the modification of the abovementioned texts was under way, requests the Government to make progress in bringing the abovementioned provisions, including those in the Family Code, into conformity with the Convention and to provide the amended texts, as soon as possible.

Discrimination based on race or ethnic origin. The Committee notes that the Government’s report does not reply to the Committee’s previous comments regarding the socio-economic situation of the Batwa, and discrimination faced by the Batwa in employment and occupation. The Committee had noted in this context the concluding observations of the United Nations Committee on the Elimination of Racial Discrimination, of 17 August 2007, expressing concern that “pygmies” (Bambuti, Batwa and Bacwa) are subjected to marginalization and discrimination with regard to the enjoyment of their economic, social and cultural rights, in particular their access to education, health and the labour market. CERD also expressed concern that the rights of these groups to own, exploit, control and use their lands, their resources and communal territories – which are the basis for the exercise of their traditional occupations and livelihood activities – are not guaranteed (CERD/C/COD/CO/15, 17 August 2007, paragraphs 18 and 19). The Committee urges the Government once again to take measures with a view to ensuring equality of opportunity and treatment of the Bambuti, Batwa and Bacwa in employment and occupation, and to indicate the steps taken in this regard. The Government is also requested to indicate the measures taken to ensure that these indigenous groups enjoy their right to engage in their traditional occupations and livelihoods without discrimination.

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