Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Abolition of Forced Labour Convention, 1957 (No. 105) - Botswana (Ratification: 1997)

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous comments.

Repetition

Article 1(a) of the Convention. Sanctions involving the obligation to work as a punishment for expressing political views or views ideologically opposed to the established political, social or economic system. The Committee previously noted that sentences of imprisonment, involving compulsory prison labour pursuant to section 92 of the Prisons Act, Cap 21:03 of 1979, may be imposed under sections 47 and 48 of the Penal Code on any person who prints, makes, imports, publishes, sells, distributes or reproduces any publication prohibited by the President “in his absolute discretion” as being “contrary to the public interest”. Similar sentences may be imposed under section 51(1)(c), (d) and (2) concerning seditious publications. Sentences of imprisonment may also be imposed under sections 66–68 of the Penal Code on any person who manages, or is a member, or in any way takes part in the activity of an unlawful society, particularly of a society declared unlawful as being “dangerous to peace and order”. In this connection, the Committee observed that the above provisions are worded in terms broad enough to lend themselves to application as a means of punishment for the expression of views and, in so far as they are enforceable with sanctions involving compulsory labour, they are incompatible with the Convention. The Committee therefore requested the Government to take appropriate measures, on the occasion of the revision of the Penal Code, to bring the above provisions into conformity with the Convention.

The Committee notes with regret the Government’s statement, in its report, that no amendment to the Penal Code is planned. It wishes to recall once again that Article 1(a) of the Convention prohibits punishment by penalties involving compulsory labour, including compulsory prison labour, of persons who, without having recourse to violence, express political opinions or views opposed to the established political, social or economic system. The Committee expresses the firm hope that appropriate measures will be taken without delay, in both law and practice, to ensure that no penalties involving compulsory labour may be imposed for the peaceful expression of political views opposed to the established system, either by restricting the scope of application of these provisions to situations of violence, or by repealing sanctions involving compulsory prison labour. The Committee requests the Government to provide information on the developments made in this regard.

Article 1(c). Punishment for breaches of labour discipline. The Committee previously noted that section 43(1)(a) of the Trade Disputes Act (No. 15 of 2004) punishes with imprisonment involving compulsory prison labour any wilful breach of a contract of employment by an employee who is acting either alone or in combination with others, if such breach affects the operation of essential services. The Committee observed that the list of essential services specified in the Schedule to the Trade Disputes Act includes services such as the Bank of Botswana, railway services, and transport and telecommunications services necessary to the operation of all these services, which did not seem to meet the criteria of essential services in the strict sense of the term.

The Committee notes the Government’s indication that the list of essential services is going to be reviewed by a task force which has been established for this purpose, within the framework of the ongoing labour law review process. The Committee also notes, referring to its comments made in 2017 under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), that the Trade Disputes Act has been amended in 2016, in response to new developments and the specific circumstances in the country. It notes that the list of essential services was thus expanded to include teaching services, veterinary services and diamond sorting, cutting and selling services. Referring to its General Survey of 2012 on the fundamental Conventions (paragraph 311), the Committee points out that essential services should be understood in the strict sense of the term, that is services, the interruption of which may endanger the life, personal safety and health of the whole or part of the population, and observes that the aforementioned essential services do not seem to meet the criteria of essential services in the strict sense of the term. The Committee therefore expresses the firm hope that the Government will take the necessary measures, in the framework of the current labour law review process, to ensure that no prison sentences involving compulsory labour are imposed as a punishment for breaches of labour discipline affecting the operation of essential services that do not meet the criteria of essential services in the strict sense of the term. It requests the Government to provide information on the progress made in this regard.

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