Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Abolition of Forced Labour Convention, 1957 (No. 105) - Senegal (Ratification: 1961)

Article 1(c) of the Convention. Imposition of sentences of imprisonment involving an obligation to work for breaches of labour discipline. The Committee previously emphasized the need to amend sections 624, 643 and 645 of the Merchant Shipping Code (Act No. 2002-22 of 16 August 2002). Under the terms of these provisions, unapproved absence from the vessel, verbal insults, gestures or threats towards a superior, or a formal refusal to obey a service order are punishable by imprisonment, which involves compulsory prison labour in accordance with section 692 of the Code of Penal Procedure and section 32 of Decree No. 2001-362 of 4 May 2001 on the execution and organization of penal sanctions. In view of the fact that the scope of the above-mentioned provisions of the Merchant Shipping Code is not confined to cases in which the breach of discipline would endanger the ship or the life or health of persons on board, the Committee has considered them to be contrary to the Convention, which prohibits recourse to forced labour, including in the form of compulsory prison labour, as a means of labour discipline. The Government indicates in its report that, in general, fines have always been preferred for breaches of discipline, even though the Merchant Shipping Code leaves the choice of whether to impose a fine or a custodial sentence to the judge. The Committee notes that since the Code is currently being revised, the Government will ensure that the definitive version takes into account all of the international obligations of Senegal in this regard. The Committee notes with deep concern that it has been commenting on this matter for more than 40 years, and that the Government did not take the opportunity presented by the adoption of the new Merchant Shipping Code in 2002 to bring its legislation into line with practice and with the Convention. The Committee therefore calls upon the Government to be in compliance with the Convention and expects that the necessary measures will finally be taken to amend articles 624, 643 and 645 of the Merchant Shipping Code so that breaches of labour discipline that do not endanger the ship or the persons on board cannot be punished with prison sentences, under which prison labour may be imposed.

Article 1(d). Imposition of sentences of imprisonment involving an obligation to work as punishment for participation in strikes. In its previous comments, the Committee referred to section L.276 of the Labour Code (under Title 13 on labour disputes), which allows the administrative authority to requisition workers from private enterprises and public services and establishments who are engaged in jobs that are essential for the security of persons and property, the maintenance of public order, the continuity of public services and the satisfaction of the essential needs of the nation. Any worker who does not comply with the requisition order is liable to a fine or imprisonment of three months to one year or both these penalties (section L.279(m)). The Committee noted that the Decree implementing section L.276, which was to establish the list of jobs concerned, was in the process of being adopted and that, in the meantime, Decree No. 72-017 of 11 March 1972 establishing the list of posts, jobs and functions of which the occupants may be requisitioned continued to be applicable. With reference to the comments made on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Committee observed that, pursuant to these provisions, the power to requisition workers may be exercised in respect of workers whose post, job or functions do not constitute essential services in the strict sense of the term, and that workers who do not comply with a requisition order are liable to imprisonment involving the obligation to work.

The Committee notes with regret that the Decree to implement section L.276, which only authorizes the requisitioning of workers to ensure the operation of essential services in the strict sense of the term, has still not been adopted. Reaffirming that appropriate measures will be taken to comply with the Convention and that the use of requisitioning remains extremely rare in practice, the Government indicates in its report that despite the delay in the adoption of the new Decree to implement section L.276 of the Labour Code, the right to strike will be fully guaranteed to all workers, in accordance with the law, and that those who legally exercise that right do not risk any criminal proceedings. In this regard, the Committee wishes to recall that in all cases and regardless of the legality of the strike action in question, any penalties imposed should be proportionate to the seriousness of the offence, and that the authorities should not have recourse to measures of imprisonment against persons peacefully organizing or participating in a strike. The Committee urges the Government to take the necessary measures to ensure that the Decree implementing section L.276 of the Labour Code is adopted as soon as possible and that workers who do not comply with a requisition order are not liable to imprisonment involving the obligation to work. The Committee expresses the firm hope that the above-mentioned Decree will limit the list of posts, jobs or functions of which the occupants may be subject to a requisition order to posts, jobs or functions that are strictly necessary to ensure the operation of essential services in the strict sense of the term.

The Committee also previously emphasized the need to amend the last paragraph of section L.276 of the Labour Code, under which the exercise of the right to strike may not be accompanied by the occupation of the workplace or its immediate surroundings, otherwise the penalties set out in sections L.275 and L.279 will apply (in the latter case, imprisonment of three months to one year or a fine or both). The Committee requests the Government to take the necessary measures to amend the last paragraph of section L.276 and section L.279 of the Labour Code, in order to ensure that striking workers who peacefully occupy the workplace or its immediate surroundings are not liable to imprisonment during which prison labour may be imposed.