Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Abolition of Forced Labour Convention, 1957 (No. 105) - Togo (Ratification: 1999)

Preliminary comment on the impact of compulsory prison labour on the application of the Convention. The Committee previously noted that the implementing decrees provided for under sections 22(2), 26(2) and 35(3) of the Penal Code, provide for the possibility for persons sentence to reclusion and imprisonment to work, had not been adopted. The Committee was therefore bound to consider, following the information supplied by the Government on the application in practice of the above provisions, work may be imposed on prisoners sentenced to reclusion or imprisonment. The Committee also noted the Government’s statement that, in the context of the national programme for modernizing the justice system, the Penal Code was revised and is currently before the National Assembly for adoption, and that in the revised version forced labour is prohibited, thereby making way for non-forced labour in prisons with a view to the better reintegration of detainees into society. The Committee again notes the Government’s statement that the Penal Code has been revised and that it is in the process of being adopted. The Committee again requests the Government to provide a copy of the revised Penal Code once it is adopted, specifying the new provisions regarding work by detainees in prisons. In the meantime, the Committee draws the Government’s attention to the following provisions of the legislation of Togo that may fall within the scope of certain Articles of the Convention.

Article 1(a) of the Convention. Imposition of prison sentences comprising an obligation to work as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. In its previous comments the Committee noted Act No. 2004-15 of 27 August 2004 amending Act No. 98-4 of 11 February 1998 issuing the Media and Communications Code, previously amended in 2000 and 2002. The Committee noted that the Act abolished prison sentences for violations of the provisions respecting the press and offences which may be related to freedom of expression. However, the Committee noted that section 86 of the new Media and Communications Code establishes a penalty of between three months and one year of imprisonment and a fine for any person who, through various means referred to in the new section 85, incites the population to violate the laws of the Republic and that, in the event of a second offence, double the maximum penalty may be imposed. The Committee notes the Government’s statement that the provisions of the Media Code are applied in practice but that copies of judicial rulings on the basis for these sections are not yet available. The Committee again requests the Government to indicate how these provisions are applied in practice and to provide copies of court decisions made on the basis of section 86 of the 2004 Media and Communications Code so that the Committee can examine the scope of these provisions.

The Committee also referred to section 25 of Act No. 91-4 of 12 April 1991 issuing the Charter of Political Parties, under which “any person who leads or runs a political party in violation of the provisions of the Charter shall be liable to imprisonment of from three to 12 months and a fine of from 100,000 to 500,000 CFA francs, or one of these two penalties only”.

The Committee notes the Government’s statement that, in the revised Penal Code, section 25 of Act No. 91-4 of 12 April 1991 issuing the Charter of Political Parties has been abrogated. The Committee notes this information and requests the Government to provide a copy of the text abrogating the Act issuing the Charter of Political Parties.

The Committee also drew the Government’s attention to a number of provisions in the Penal Code providing for prison sentences that entail an obligation to work in circumstances falling within the scope of the Convention. It requested the Government to provide information on the application of these provisions in practice:

• -section 182(1), which provides that “whoever participates on a public thoroughfare in a procession, gathering or any other demonstration impeding the public traffic, without having received prior administrative authorization, shall be punished with a fine of from 2,000 to 30,000 CFA francs”, read together with section 36, under which “in case of failure to pay the police fine within the allotted time, the fine may be replaced by penal labour at the rate of one day’s work for a 500 CFA franc fine”;
• -section 182(2), which provides that “the organizers of unauthorized demonstrations on the public thoroughfare, even if they have not themselves participated in the demonstrations, shall be punished with one to six months of imprisonment and a fine of from 20,000 to 100,000 CFA francs, or one of these two penalties only”, also read together with section 36; and
• -section 217, which provides that “whoever has participated in a concerted work stoppage outside the current regulations shall be punished with from one to 20 days of penal labour or a 2,000 to 30,000 CFA franc fine” (subsection 1), and that “the organizers of the concerted work stoppage shall be punished with between one and six months of imprisonment” (subsection 2).

The Committee notes the Government’s statement that the above sections are applied in practice but that the court decisions on the subject are not available. So that the Committee can be sure that the above provisions of the Penal Code are applied in a manner that complies with the Convention, the Committee requests the Government to provide information on their application in practice and to attach copies of any court decisions based thereon.

Article 1(d) and (e). Imposition of prison sentences comprising an obligation to work as a punishment for having participated in strikes and as a means of racial, social, national or religious discrimination. In its previous comments, the Committee drew the Government’s attention to a number of provisions of the Act of 1 July 1901 respecting contracts of association which provide for prison sentences that include the obligation to work in circumstances falling within the scope of the Convention. It requested the Government to provide information on the application of these provisions in practice:

• -section 8(1), which provides that “any person who has contravened the provisions of section 5 shall be punished with a 16 to 200 CFA franc fine and, in the event of a second offence, with a double fine”, with section 5 concerning the formalities for prior declaration, changes that have occurred in an association’s administration or management, and modifications that have been made to their statutes, read together with section 36 of the Penal Code;
• -section 8(2), which provides that “the founders, directors or administrators of an association which has been illegally maintained or reconstituted after the judgment of dissolution shall be punished with a fine of from 16 to 5,000 CFA francs and six days to one year of imprisonment” and section 8(3), which provides that “any persons who have facilitated meetings of members of the dissolved association by granting them the use of premises available to them shall be liable to the same penalty”; and
• -section 15, which makes the penalties established in section 8(2) applicable to the representatives or directors of a religious congregation who have not complied with the provisions concerning the keeping of a list of the congregation members and the presentation of such a list at the request of the prefect.

The Committee noted the Government’s statement that violations of the above provisions are settled out of court in a context of dialogue and cooperation.

Noting an absence of information on this point, the Committee again requests the Government in its next report to provide information on the application in practice of these provisions and on any court decisions based thereon.

Article 1(d). Requisition of public officials in the event of a strike. In its previous comments, the Committee noted that section 7 of the general statute for public officials (Ordinance No. 1 of 4 January 1968) allowed the Government to limit public servants’ exercise of the right to strike by requisitioning them collectively or individually. It also noted the Government’s statement before the Conference Committee on the Application of Standards in June 2009 that no use had been made of the right to requisition and that a reform of the general statute for public officials was on the agenda and would cover the right to requisition.

The Committee notes the Government’s indication that the right to requisition is now embodied in sections 244 and 245 of the new statute for public officials adopted on 21 January 2013. The posts and jobs concerned will be identified in a decree that is currently being drafted.

The Committee notes that the new provisions restrict the power of requisition to cases where the officials concerned occupy posts that are indispensable to the security of people and goods, to the maintenance of public order, to the maintenance of public services or to the satisfaction of the nation’s essential needs. It notes, however, that officials who do not comply with a requisition order are liable to six days’ imprisonment and/or a fine. The Committee recalls that the power of requisition should be limited to exceptional circumstances and to services that are essential in the strict sense of the term, that is services whose interruption could endanger the life, security or health of all or part of the population.

Consequently, the Committee hopes that, when the decree defining the posts of officials subject to requisition is adopted, the Government will take this restriction into account.