ILO-en-strap
NORMLEX
Information System on International Labour Standards
NORMLEX Home > Country profiles >  > Country comments > Texts of comments: Somalia

Comments adopted by the CEACR: Somalia

Adopted by the CEACR in 2021

C029 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes with deep concern that the Government’s report has not been received. It expects that the next report will contain full information on the matters raised in its previous comments. The Committee informs the Government that, if it has not supplied replies to the points raised by 1 September 2022, then it may proceed with the examination of the application of the Convention on the basis of the information at its disposal at its next session.
Repetition
Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons and forced labour. The Committee notes that the Government’s report has not been received. However, it notes the observations of the Federation of Somali Trade Unions (FESTU), received on 28 August 2015, which state that Somalia is a source, transit, and destination country for trafficking in persons. Somali men work as herdsmen and as migrant workers in the Gulf States in conditions of forced labour. The FESTU also states that women are trafficked within Somalia for sexual exploitation and forced labour in agriculture, livestock herding, construction and domestic work. It indicates that section 14 of the Provisional Constitution of August 2012 prohibits trafficking and forced labour and that section 464 of the Penal Code provides for penalties of six months to five years of imprisonment for the exaction of forced labour. However, the FESTU states that these provisions are not implemented by the Government, and that neither investigations nor prosecutions have been carried out. The Committee urges the Government to take the necessary measures to prevent and combat trafficking in persons for labour and sexual exploitation. In this regard, it requests the Government to take the necessary measures to ensure that national legislation prohibiting trafficking and forced labour is effectively applied and to provide information in this respect.

Adopted by the CEACR in 2020

C087 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Somalia (ratification: 2014)
The Committee takes note of the Government’s first report on the application of the Convention. It notes with interest the Government’s indication that a draft Labour Code (the content of which is examined in the direct request accompanying this observation), was developed in collaboration with the ILO to revise the 1972 Labour Code, and that all tripartite partners were involved in the process. It further notes that this draft Labour Code and a draft Civil Service Law are currently pending approval by the Parliament. The Committee requests the Government to inform on the adoption process of the draft Labour Code and the draft Civil Service Law and to transmit copies of the laws once adopted.
The Committee also notes the observations of the Federation of Somali Trade Unions (FESTU), received on 1 October 2020, alleging violations of the right to organize, including the right to strike, at an airport management company, as well as pressures and threats by the police against trade union officials. The Committee requests the Government to provide its comments in this respect.
The Committee is raising other matters in a request addressed directly to the Government.

C087 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Somalia (ratification: 2014)
Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. Definition of worker. The Committee takes note that the definition of “worker” in section 2 of the draft Labour Code refers to a person who undertakes to perform work for an employer for remuneration, thus excluding from the Code’s scope of application workers who are not under a contract of employment. Similarly, its section 159 recognizes the right to establish a trade union to “every person engaged in employment”. The Committee recalls that Article 2 of the Convention does not apply only to employees but more broadly to all workers without distinction whatsoever, and that national laws and regulations may only exclude from the guarantees of the Convention the armed forces and the police. The Committee requests the Government to indicate if other laws or regulations recognize the rights enshrined in the Convention to workers outside of the scope of the draft Labour Code, including in particular self-employed workers and workers without employment contract, and to take the necessary measures to ensure that these workers can establish and join organizations for furthering and defending their interests and otherwise enjoy the guarantees under the Convention.
Minors. The Committee notes that the draft Labour Code does not allow persons below 15 years of age to join a trade union and participate in its activities (section 177). It further notes that persons of 14 years of age may participate in apprenticeships (section 127(4)) and that the employment of persons of 13 and below 15 years of age may be permitted under certain conditions (section 128(4)). The Committee recalls that minors who have reached the minimum legal age for admission to employment, both as workers and as apprentices, should be admissible for trade union membership (see the 2012 General Survey on the fundamental Conventions, paragraph 78). The Committee therefore requests the Government to take the necessary measures to amend section 177 in order to guarantee the right to organize for minors having access to the labour market in compliance with the conditions laid down in the draft Labour Code.
Civil service. The Committee notes that the draft Civil Service Law provides that federal civil service employees are only entitled to associate in trade unions or other organizations if the exercise of their rights is not unfavorable to the public interest (article 8.1.6). The Committee recalls that the guarantees under the Convention also apply to public servants (see the 2012 General Survey on the fundamental Conventions, paragraph 64) and deems that the right to establish or join organizations of their own choosing (to further and defend their interests as workers) may not be limited for public servants on account of considerations such as public interest. The Committee requests the Government to take the necessary measures to amend the draft Civil Service Law so as to ensure that the right of workers to establish and join organizations of their own choosing is recognized to all civil service employees, with the sole possible exception of the armed forces and the police, and without subjecting the enjoyment of such right to public interest considerations.
Right of workers and employers to establish and join organizations without previous authorization. Amalgamation of organizations. The Committee notes that the amalgamation procedure for trade unions and employers’ organizations is regulated by section 172 of the draft Labour Code, which stipulates that an amalgamation may only occur if at least 50 percent of the members of each organization have voted, and if the number of voters in favour of the proposed amalgamation exceeds by at least 20 percent the number of voters against it. The Committee requests the Government to review this provision in consultation with the social partners, with a view to leaving the setting of internal decision-making requirements for amalgamation to the bylaws of the organizations concerned.
Article 3. Right of organizations to elect their representatives. Election procedures. The Committee notes that section 179(6) of the draft Labour Code allows the Registrar to issue directions to trade unions and employers’ organizations to ensure that their elections are conducted in accordance with the basic rules on election of officials set out in section 179 (prohibiting discrimination and providing for secret ballot elections at least once every five years, and the communication of the results to the Registrar within 14 days), as well as with their respective constitutions. The Committee recalls that, while legislation may promote democratic principles in relation to trade union election processes, the manner in which the elections are carried out should be left to the autonomy of the organizations concerned and provisions that could allow control over the electoral procedure by the administrative authorities, such as through the issuance of directions, are incompatible with the Convention (see the 2012 General Survey on the fundamental Conventions, paragraph 101). The Committee requests the Government to amend the draft Labour Code to remove any control by the Registrar over trade union election processes.
Conditions of eligibility of representatives. The Committee takes note that the draft Labour Code sets out restrictions with regard to the eligibility for office of representatives of workers’ and employers’ organizations. It notes that trade union executives may not be less than 18 years of age (section 177(1)(b)), and that officials may not represent more than one organization (section 178(2)). Recalling that the determination of conditions of eligibility for office is a matter that should be left to the organizations’ bylaws, the Committee requests the Government to take the necessary measures to remove the abovementioned restrictions from the draft legislation.
The Committee further notes that trade union officials and trustees must not have been previously convicted of a criminal offence involving fraud or dishonesty (sections 178(5) and 182(3)), and recalls that conviction for an act the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties should not constitute grounds for disqualification from trade union office (see the 2012 General Survey on the fundamental Conventions, paragraph 106). The Committee requests the Government to provide information on the application in practice of these provisions, and to indicate in particular whether the exclusion from trade union office eligibility is permanent or may be limited in time – for example, in light of national regulations concerning criminal records.
Right of organizations to organize their administration and activities and to formulate their programmes. Financial management. The Committee notes that sections 186, 187, 188(2) and 189 of the draft Labour Code regulate in detail several aspects related to the financial management of workers’ and employers’ organizations, and allow the Registrar to request accounts from their officials and to seek injunctions and court orders to restrain the expenditure of their funds. The Committee recalls that the supervision of the financial management of organizations should not go beyond the obligation to submit annual financial reports, and that the verification of accounts should only be carried out if there are serious grounds to believe that the actions of the organization are contrary to its rules or the law, or if a reasonable proportion of members file a complaint (see the 2012 General Survey on the fundamental Conventions, paragraph 109). The Committee requests the Government to amend the draft legislation to ensure that, beyond the obligation to submit annual financial reports, administrative authorities are only allowed to control and inspect the financial management of organizations in cases in which serious grounds of unlawful activity or the initiative of a certain percentage of members warrant such an intervention.
Internal administration. The Committee notes that sections 182(6), 183, 185 and 190 of the draft Labour Code allow public authorities to control matters such as the transfer of workers’ and employers’ organizations’ property and the deduction of trade union dues. The Committee recalls that the organizations’ freedom to organize their administration includes the right to dispose of all their fixed and moveable assets unhindered. It further recalls that the deduction of trade union dues by employers and their transfer to trade unions is a matter that should not be solely determined by law but be dealt with through collective bargaining without any intervention by the public authorities (see the 2012 General Survey on the fundamental Conventions, paragraph 114). The Committee requests the Government to take the necessary measures to amend the draft legislation so as to limit the supervisory powers of the administrative authorities to control the internal administration of organizations.
Right to strike. Public service. The Committee notes that while the draft Labour Code authorizes the right to strike for public employees except civil servants exercising authority in the name of the state (section 226(3)(b)), the draft Civil Service Law provides that federal civil service employees should only be entitled to strike if the strike does not become detrimental to public interest (article 8.1.5). The Committee recalls that the prohibition of exercising the right to strike in the public service should be limited to public servants exercising authority in the name of the State, a category that does not include, among others teachers, postal workers or railway employees (see the 2012 General Survey on the fundamental Conventions, paragraph 130). It also considers that provisions prohibiting strikes on the basis of potential detriment to public order or national interest are not compatible with the right of organizations to organize their administration and activities and to formulate their programmes (see the 2012 General Survey on the fundamental Conventions, paragraph 132). The Committee requests the Government to amend the draft Civil Service Law in order to ensure that prohibitions to exercise the right to strike may only relate to civil servants exercising authority in the name of the State, or to essential services in the strict sense of the term and situations of acute national crisis.
Compulsory arbitration. The Committee takes note that sections 208(1)(e) and 224(2) of the draft Labour Code could respectively allow compulsory arbitration as a result of an administrative decision by the Federal Alternative Dispute Resolution Commission or following the request of any of the parties to the Labour Court. The Committee considers that recourse to compulsory arbitration to bring an end to a collective labour dispute is only acceptable when the two parties to the dispute so agree, or when a strike may be restricted or prohibited in the case of disputes concerning public servants exercising authority in the name of the State, essential services in the strict sense of the term or situations of acute national crisis. The Committee requests the Government to ensure that arbitration, whether conducted by the Federal Alternative Dispute Resolution Commission or by the Labour Court, may only take place with the approval of both parties or in circumstances in which a strike may be restricted or prohibited.
Article 4. Prohibition of dissolution or suspension of organizations by administrative authority. The Committee notes that section 174(1)(b) of the draft Labour Code stipulates that the Registrar must cancel or suspend the registration of an organization if he or she is satisfied that the organization has ceased to exist. It further notes that section 174(2) provides that the Registrar may cancel or suspend the registration of an organization if he or she is satisfied that the organization was registered as a result of fraud, misrepresentation or mistake, is operating in contravention of the Code, is being used for an unlawful purpose, has failed to conduct elections in accordance with the requirements of the Code, or is not independent. The Committee also takes note that although a decision of dissolution, cancellation or suspension by the Registrar may be appealed before the Labour Court, an appeal does not appear to suspend the effect of such decision (sections 174(5) and 176). It recalls that the dissolution and suspension of trade union organizations constitute extreme forms of interference by the authorities and should therefore be accompanied by all the necessary guarantees, especially a normal judicial procedure, which should have a suspensory effect (see the 2012 General Survey on the fundamental Conventions, paragraph 162). The Committee requests the Government to modify the draft legislation to minimize the Registrar’s powers with regard to cancellation and suspension of registration and to ensure that in case of judicial appeal against a decision to dissolve an organization or to suspend or cancel its registration, such decision does not take effect until the end of the appeal procedure.
Application of the Convention in practice. The Committee requests the Government to provide statistical information on the number of workers’ and employers’ organizations registered, the sectors and the number of workers covered.

C098 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Somalia (ratification: 2014)
The Committee takes note of the Government’s first report on the application of the Convention. It notes with interest the Government’s indication that a draft Labour Code was developed in collaboration with the Office to revise the 1972 Labour Code, and that all tripartite partners were involved in the process. It also takes note that this draft Labour Code and a draft Civil Service Law are currently pending approval by the Parliament. The Committee requests the Government to inform on the adoption process of the draft Labour Code and the draft Civil Service Law and to transmit copies of the laws once adopted.
The Committee also takes note of the observations of the Federation of Somali Trade Unions (FESTU), received on 1 October 2020, denouncing the violation of the right to collective bargaining, as well as repeated acts of harassment and anti-union interference at an airport management company. The Committee requests the Government to provide its comments thereon.
Scope of the Convention. Definition of worker. The Committee notes that the draft Labour Code: (i) defines a “worker” as “a person who undertakes to perform manual or non-manual work for an employer under a special or general, oral or written agreement, or by way of apprenticeship or probation, in return for remuneration” (section 2); and ii) recognizes the right to establish a trade union to “every person engaged in employment” (section 159). The Committee recalls that the Convention does not apply only to employees but more broadly to all workers and that national laws and regulations may only exclude from the guarantees of the Convention the armed forces, the police and public servants engaged in the administration of the State. The Committee requests the Government to indicate if other laws or regulations recognize the rights set out by the Convention to workers whose status may not be covered by the draft Labour Code, including in particular self-employed workers and workers without employment contract, and to otherwise take the necessary measures to ensure that these workers also enjoy the guarantees under the Convention.
Article 1 of the Convention. Protection against acts of anti-union discrimination. Sufficiently dissuasive sanctions. The Committee notes that the draft Labour Code provides protection against anti-union discrimination through its sections 147(1), 148 and 178. The Committee further notes that the above-mentioned provisions fall under the scope of section 228 of the draft Labour Code which stipulates that any person who contravenes the provisions of the Code for which no penalty is specifically provided is liable to imprisonment for a term not exceeding six months or to a fine of an unspecified amount, or to both such imprisonment and fine. The Committee emphasizes that the effectiveness of legal provisions prohibiting acts of anti-union discrimination is dependent on their enforcement through specific and sufficiently dissuasive sanctions, which should include fines that are adapted to the size of the enterprise and adjusted on the basis of inflation (see the 2012 General Survey on the fundamental Conventions, paragraph 193). The Committee therefore requests the Government to take the necessary measures to ensure that the Labour Code to be adopted by the Parliament provides for sanctions, in particular fines, which are effective and sufficiently dissuasive for acts of anti-union discrimination.
Anti-union dismissal. The Committee notes that, according to section 120 of the draft Labour Code, dismissal for reasons of trade union membership or activities is covered by the concept of unfair dismissal as the list of reasons that are not considered as fair includes “a worker’s membership or proposed membership of a trade union”. As a result, the remedies applicable to anti-union dismissals (damages and, based on the recommendations of a labour officer, reinstatement or re-engagement) are those applied to any type of unfair dismissals. The Committee recalls that the reinstatement of a worker dismissed by reason of trade union membership or legitimate trade union activities with retroactive compensation constitutes, in the absence of preventive measures, the most effective remedy for acts of anti-union discrimination. It also considers that the compensation envisaged for anti-union dismissal should be higher than that prescribed for other kinds of dismissal to ensure a dissuasive effect (see the 2012 General Survey on the fundamental Conventions, paragraphs 182 and 185). In the light of these principles and with a view to ensuring that anti-union dismissals are subject to effective and dissuasive remedies, the Committee requests the Government to provide, once the draft Labour Code is adopted and put into practice, information on the type and amount of compensation awarded by courts when addressing anti-union dismissal cases.
Rapid appeal procedures. The Committee notes that the sections 147(1), 148 and 178 of the draft Labour Code providing protection against anti-union discrimination fall under the scope of the Labour Court, which has exclusive jurisdiction to hear complaints based on any of the provisions of the draft Labour Code (section 216(1)(a)). Recalling that the existence of legal provisions prohibiting acts of anti-union discrimination is not enough if they are not accompanied by effective and rapid procedures to ensure their application in practice (see the 2012 General Survey on the fundamental Conventions, paragraph 190), the Committee invites the Government to provide further details, once the draft Labour Code is adopted and put into practice, with regard to the length of the procedures to treat complaints against such acts.
Article 2. Protection against acts of interference. The Committee takes notes that under the draft Labour Code, it is unlawful for any employer to engage in any act of interference in the establishment or functioning of a trade union (section 147(2)). The Committee notes however that, as is the case for the Code’s provisions against anti-union discrimination, section 147(2) is not accompanied by specific procedures or sanctions to ensure its respect. The Committee therefore requests the Government to take the necessary measures to amend the draft Labour Code to ensure that specific and sufficiently dissuasive sanctions are applicable to such acts, and to provide additional information, once the draft Labour Code is adopted and put into practice, regarding the length of the procedures to treat complaints against acts of interference.
Article 4. Promotion of collective bargaining. The Committee notes with interest the provisions of section 192 of the Labour Code that establish the rules for collective bargaining both at the level of the enterprise and of several employers. The Committee invites the Government to provide information on the measures taken to promote collective bargaining and on the number of collective agreements concluded, specifying the sectors concerned and the number of workers covered.
Machinery and procedures to facilitate and promote collective bargaining. The Committee notes that sections 208 and 224(2) of the draft Labour Code could respectively allow compulsory arbitration as a result of a decision by the Federal Alternative Dispute Resolution Commission or following the request of any of the parties to the Labour Court. The Committee recalls that recourse to the bodies entrusted with resolving disputes should be voluntary and the imposition of arbitration with compulsory effects, by administrative decision or at the initiative of one of the parties, is one of the most radical forms of intervention by the authorities in collective bargaining (see the 2012 General Survey on the fundamental Conventions, paragraphs 243 and 246). It further recalls that compulsory arbitration is only acceptable in relation to public servants engaged in the administration of the State (Article 6 of the Convention), in essential services in the strict sense of the term or in cases of acute national crisis (see the 2012 General Survey on the fundamental Conventions, paragraph 247). The Committee therefore requests the Government to take the necessary measures to amend the draft Labour Code to ensure that arbitration, whether conducted by the Federal Alternative Dispute Resolution Commission or by the Labour Court, may, outside of the aforementioned exceptions, only take place with the approval of both parties.
Article 6. Public servants not engaged in the administration of the State. The Committee notes that the provisions of the draft Labour Code apply to all employers and workers, including those employed in the public service or public institutions to the extent that any of their terms and conditions of service are not governed by any other law (section 3(1)). It observes that since the draft Civil Service Law, which applies to all federal civil servants (article 3.1), does not specifically refer to the issues covered by the Convention, these workers may benefit from the protection provided by the draft Labour Code. The Committee additionally notes with interest that section 192 of the Draft Labour Code concerning collective bargaining refers to both private and public employers. The Committee invites the Government to indicate if other laws or regulations refer to the issues covered by the Convention for public servants who are not engaged in the administration of the State, including in particular public enterprises employees, public hospitals personnel and public teachers.

C182 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee notes the Government’s first report and the observations of the Federation of Somali Trade Unions (FESTU) received on 1 September 2018.
Articles 3 and 7(1) of the Convention. Worst forms of child labour and penalties. Clause (a). All forms of slavery or practices similar to slavery. Forced or compulsory recruitment of children for use in armed conflict. The Government indicates in its report that article 29 of the Provisional Constitution of 2012 provides for the right of children to be protected from armed conflict and not to be used in armed conflict (paragraph 6). In addition, it indicates that the Somali National Army issued a general staff Order (No. 1), stating that children under 18 years of age may not enlist in the army.
The Committee notes that the draft Labour Code of 2019 provides, in its section 7 entitled “Slavery and forced labour and recruitment of children into the armed forces”, for the prohibition of forced or compulsory recruitment of children for use in armed conflict, which is considered as a form of forced or compulsory labour. The penalty for offenders under this provision is a fine or imprisonment for a term of not less than three years and not exceeding ten years, or to both a fine and imprisonment.
According to the Government, the Somali National Army has benefited from human rights training and continuous sensitization to combat the use of children in armed conflict. However, the Government states that gaps exist in law enforcement areas to adequately protect children from the worst forms of child labour, especially in parts of the country that the Government does not control. It indicates the detection of cases of recruitment of children by non-state armed groups, including for use as spies, when opening and closing checkpoints, and to join their armed groups. In 2017, Al-Shabaab extremists intensified its campaign of forced recruitment of children as young as 8 years old. According to the Social Protection Policy of 2019, the recruitment of children by armed groups has included the threatening of elders, teachers in Islamic religious schools, and communities in rural areas with attacks if they did not provide thousands of children as young as 8 years old for use in armed conflict. The observations of the Federation of Somali Trade Unions (FESTU) received on 1 September 2018 also stated that children were forcibly recruited and used by militias and Al-Shabaab extremists as soldiers.
The Committee notes that, according to the Report of the UN Secretary-General on Children and armed conflict of June 2020, the recruitment and use in armed conflict of 1,442 boys and 53 girls were verified in 2019, with some children as young as 8 years old. Al-Shabaab remained the main perpetrator but government security forces, regional forces and clan militias also recruited and used children. A total of 1,158 cases of abduction of children were verified, mainly for the purpose of recruitment and use in armed conflict, as well as 703 cases of children killed or maimed, and more than 200 cases of girls being raped and are victims of sexual violence. The Secretary-General underlined the growing number of violations attributed to government security forces (A/74/845-S/2020/525, paragraphs 137, 139, 140, 142 and 145). Moreover, the Committee notes that, in her report of 24 December 2019, the Special Representative of the Secretary-General for Children and Armed Conflict specified that in Somalia, where the highest figures for sexual violence were verified in 2019, girls were sexually abused during their association with armed forces and groups, and forcibly married to combatants. She also stated that abduction was the primary way for Al-Shabaab to forcibly recruit children for use as combatants in Somalia (A/HRC/43/38, paragraphs 27 and 32). The Committee must deplore the continued recruitment and use of children in armed conflict in Somalia, especially as it entails other violations of children’s rights, such as abductions, killings and sexual violence. While recognizing the complexity of the situation prevailing on the ground and the existence of an armed conflict and armed groups in the country, the Committee urges the Government to take the necessary measures as a matter of urgency to ensure the full and immediate demobilization of all children and to put a stop, in practice, to the forced recruitment of children under 18 years of age by armed forces and armed groups in Somalia. The Committee also urges the Government to take immediate and effective measures to ensure the thorough investigation and prosecution of all persons found guilty of recruiting children under 18 years of age for use in armed conflict and to ensure that sufficiently effective and dissuasive penalties are imposed in practice. The Committee requests the Government to provide information on the number and nature of investigations carried out against the perpetrators of these crimes, as well as on the number of prosecutions conducted, and the number and nature of penalties imposed.
Articles 6 and 7(2)(a) and (b). Programmes of action and effective time-bound measures for prevention, assistance and removal. Children forcibly recruited for use in armed conflict. The Government indicates that it signed a roadmap to end recruitment and use of children in conflict, in 2019.
The Committee notes that, in its report of March 2020 on Children and armed conflict in Somalia, the UN Secretary-General specified that this roadmap, aiming at accelerating the implementation of the action plans of 2012 on preventing and combating the recruitment and use and the killing and maiming of children, includes renewed commitments to strengthening the legislative framework, to capacity-building and awareness-raising for security forces, and to the screening of troops. The roadmap also provides for the creation of regional working groups on children and armed conflict, in order to implement the action plans at the Federal member State-level (S/2020/174, paragraphs 65 and 69). The Committee notes that the United Nations Assistance Mission in Somalia (UNSOM) specified that the roadmap to end recruitment and use of children in conflict details measures to release children associated with armed forces, and reintegrate them into their communities.
The Committee further notes that the UN Secretary-General indicated in its report of March 2020 that the Government was drafting a national strategy aimed at preventing child recruitment and facilitating the release and reintegration of children associated with armed groups, and a national strategy on assistance to victims aiming at supporting survivors of armed conflict, including children affected by conflict (S/2020/174, paragraph 67).
According to the report of the Government to the Committee on the Rights of the Child of October 2019, the National Programme for the Treatment and Handling of Disengaged Fighters focuses on outreach, reception, screening, rehabilitation and reintegration of children previously engaged in conflict (CRC/C/SOM/1, paragraph 362). However, according to the Report of the Secretary-General on Children and armed conflict of June 2020, 236 children were detained in 2019 for alleged association with armed groups by national and regional security forces (A/74/845-S/2020/525, paragraph 138). The Committee urges the Government to take the necessary measures to ensure that children removed from armed forces or groups are treated as victims rather than offenders. It also requests the Government to provide information on the adoption and implementation of the above-mentioned national strategies to prevent child recruitment, facilitate the release and social reintegration of children associated with armed groups, and assist them, including any special attention that has been paid to the removal, rehabilitation and social integration of girls. Furthermore, the Committee requests the Government to provide information on the manner in which the National Programme for the Treatment and Handling of Disengaged Fighters has been applied to children recruited in armed groups and the armed forces.
Article 7(2). Clause (a). Prevent the engagement of children in the worst forms of child labour. Access to free basic education. The Government indicates that the restoration of free education is one of its priorities. It has provided opportunities for free schooling in some regions, adding that 22 free schools have been established in the country. The Government wishes to implement programmes to enable more children to return to school.
The Committee notes that, according to the Social Protection Policy, there are low school enrolment rates throughout the country, and girls’ enrolment rates are significantly lower. Almost 47 per cent of children from 6 to 17 years of age are not enrolled in school. In 2015, the primary school net attendance rate was estimated at 21 per cent for girls and 30 per cent for boys (page 7). The Federal Government of Somalia, together with the World Food Programme, is implementing a school feeding programme covering more than 20 per cent of primary schools across the country. In the Federal member States, school feeding is carried out in partnership with the Ministry of Education (page 15). It improves children’s school attendance and food security (page 34).
The Committee also notes that the National Employment Policy of 2019 states that the National Education Policy and the National Education Sector Strategy Plan are essential in revising the education system, which was completely destroyed by the conflict (page 7). The National Employment Policy indicates that the private sector is the largest provider for education (page 10).
The Committee further notes that the report of the World Bank Group of August 2019 underlines that Somalia’s allocations to education as share of the national budget are about 1 per cent. The Federal member States also spend little of their own resources on education (page 32).
In its report on Children and armed conflict of June 2020, the UN Secretary-General stated that, with 64 attacks on school in 2019, Somalia has one of the highest numbers of attacks of school. Incidents included the abduction of teachers and pupils, the killing of and threats against teachers, and the destruction and looting of facilities (A/74/845-S/2020/525, paragraph 141). Considering that education is key in preventing children from the worst forms of child labour, the Committee strongly encourages the Government to continue to take the necessary measures to improve access to free basic education of all children, including girls. It requests the Government to continue to provide information on the progress made regarding access to free basic education, including on the implementation of the National Education Policy and the National Education Sector Strategy Plan. The Committee also requests the Government to provide information on the school enrolment, attendance and completion rates at primary and secondary level, as well as on the school drop-out rates.
The Committee is raising other matters in a request addressed directly to the Government.

C182 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee notes the Government’s first report and the observations of the Federation of Somali Trade Unions (FESTU) received on 1 September 2018.
Article 1 of the Convention. Legal framework. The Government indicates in its report that it has drafted a new Labour Code in 2019, to replace the existing Labour Code of 1972. Section 127 of the draft Labour Code prohibits the worst forms of child labour, which are defined in section 2 of the Code, using the same definition as in the Convention, with the exception of forced or compulsory labour, which is expressly prohibited under section 7 of the Code. The Committee requests the Government to provide information on any progress made regarding the adoption of the draft Labour Code of 2019, and to provide a copy of thereof once adopted.
Article 2. Definition of the term “child”. The Government indicates that Article 29 of the Provisional Constitution of 2012 provides that the word “child” means a person under 18 years of age (paragraph 8). The Government further states that Sharia law does not indicate any specific age at which one is considered an adult. There is a measure of maturity. If the young person is sexually mature, he or she is no longer considered a child. He is then responsible for his own actions and can get married and work. That applies to both sexes and is the general rule in traditional Somali Sharia law, as practised in Somalia.
According to the Report of the UN Secretary-General on Children and armed conflict in Somalia of March 2020, the Committee notes that the regional Constitutions of Puntland and the South-West State set the age of majority at 15 years (S/2020/174, paragraph 64). There is no information regarding the provisions of the other Federal member States in this regard. The Committee requests the Government to ensure that all persons under the age of 18 are considered children, including in the legislations of the Federal member States. It requests the Government to provide information on the progress made in this regard, as well as information on the definition of the term “child” contained in the other regional Constitutions of the Federal member States. The Committee also requests the Government to clarify the status of the Federal Provisional Constitution within the national legal order, in particular whether its provisions prevail over the legislations of the Federal member States and over the customary legal system and Sharia law.
Articles 3 and 7(1). Worst forms of child labour and penalties. Clause (a). All forms of slavery or practices similar to slavery. 1. Sale and trafficking of children. The Government indicates that article 14 of the Provisional Constitution of 2012 provides that a person may not be subjected to trafficking. It also indicates that, in November 2017, Puntland State passed new Penal and Criminal Procedure Codes, criminalizing trafficking in persons.
According to the Government, trafficking of children to Europe and other western countries from Somalia exists, and may result in forced labour and other types of slavery. It further states that cases of trafficking of children have been identified in the South-West State and that the perpetrators have been arrested. Since 2015, the Federal Government has regularly carried out awareness-raising activities to reduce trafficking of children.
In its report to the Committee on the Rights of the Child of October 2019, the Government stated that the Sexual Offences Bill, which is awaiting parliamentary approval, addressed trafficking in persons (CRC/C/SOM/1, paragraphs 161 and 165). Furthermore, the Committee notes that section 127 of the draft Labour Code of 2019 provides that a person who uses a child in any activity constituting one of the worst forms of child labour (including the sale and trafficking of children according to section 2) commits an offence and is liable to a fine or to imprisonment for a term not exceeding 12 months or to both, unless severe penalties are provided for the relevant offence (subsection 11). Given the seriousness of the offence and the dissuasive effect that the penalties should have (see 2012 General Survey on the fundamental Conventions, paragraph 637), legislation providing for the possibility of a fine alone cannot be considered effective. Therefore, the Committee requests the Government to take the necessary measures to ensure that the sale and trafficking of persons, including children, for the purposes of both labour and sexual exploitation, is punishable by sufficiently effective and dissuasive sanctions of imprisonment and not just fines. It also requests the Government to provide information on the number of cases of trafficking of children investigated, prosecuted, convicted, and the penalties imposed, and to indicate under which provisions of its national legislation the perpetrators were punished. Lastly, the Committee requests the Government to supply information on the laws of the Federal member States relating to trafficking of children, as well as information on the adoption of the Sexual Offences Bill, and a copy of the text, once adopted.
2. Slavery, debt bondage, serfdom, forced or compulsory labour. In its report, the Government refers to a study of 2019 conducted by UNICEF entitled “No Mother Wants Her Child to Migrate, Vulnerability of children on the move in the Horn of Africa”, according to which, during the journey, young people may be subjected to forced labour and slavery (page 54 of the report).
The Committee notes that, in its section 455, the Penal Code of 1962 provides that whoever reduces a person to slavery or to similar condition shall be punished with imprisonment from five to 20 years. Section 456 provides for the same penalty for whoever deals or in any manner trades in slaves or persons in a condition similar to slavery. In addition, section 464 provides for a penalty of imprisonment from six months to five years and a fine for whoever forces another to compulsory labour or avails himself of the services of persons forced to compulsory labour, where the act does not constitute a more serious offence.
The Committee also notes that the draft Labour Code of 2019 provides, in its section 7 entitled “Slavery and forced labour and recruitment of children into the armed forces”, that forced or compulsory labour is forbidden in any form (subsection 1), and that no person is permitted to assist any other person to recruit, traffic or use forced or compulsory labour (subsection 2). A person convicted under this section is liable to a fine or to imprisonment for a term of not less than three years and not exceeding ten years or to both (subsection 4). The Committee observes that, according to this provision, a person committing the offence of forced labour and slavery may be sentenced to a fine only, which does not constitute a sufficiently dissuasive penalty. The Committee requests the Government to provide information on the application in practice of sections 455, 456 and 464 of the Penal Code regarding slavery and forced or compulsory labour of children under 18 years of age, including the number of investigations, prosecutions and penalties imposed. It also requests the Government to ensure that the draft Labour Code, once adopted contains sufficiently dissuasive penalties of imprisonment for the offence of forced labour and slavery.
Clause (b). Use, procuring or offering of a child for the production of pornography or for pornographic performances. The Government indicates that laws related to the commercial sexual exploitation of children are not sufficient, as the use, procuring and offering of a child for prostitution, pornography, and pornographic performances are not effectively prohibited. However, it underlines that Islamic Sharia and the customary law of the Somali people strongly oppose these practices. In Somalia, child prostitution and the use of children in pornographic performances are practically non-existent.
The Committee notes that section 407 of the Penal Code of 1962 provides for the prohibition of the instigation, aiding and exploitation of prostitution and imprisonment from two months to two years as well as a fine for the perpetrators of such offences. It provides for increased penalties when the act is committed against a person incapable of giving consent (according to section 59, read in conjunction with section 47, a child under the age of 14 is considered as a person incapable of giving consent) or against a person entrusted to the offender for care, education, instruction, supervision, or custody. Section 408 of the Penal Code stipulates that whoever, by violence or threats, compels another to commit prostitution shall be punished with imprisonment from two to six years and with fine; the punishment shall be increased under the same conditions of section 407.
The Committee further notes that, in its report to the Committee on the Rights of the Child of October 2019, the Government indicated that the Sexual Offences Bill, which is awaiting parliamentary approval, defines sexual exploitation, addresses sexual grooming and sex tourism, and provides for penalties for offenders and assistance to victims and witnesses (CRC/C/SOM/1, paragraphs 161 and 165). The Committee trusts that the Sexual Offences Bill will contain provisions prohibiting the use, procuring or offering of a child under 18 years of age for prostitution, for the production of pornography or for pornographic performances, with effective and sufficiently dissuasive penalties, and that it will be adopted in the near future. It requests the Government to provide information on the progress made in this regard. The Committee also requests the Government to provide information on the application in practice of sections 407 and 408 of the Penal Code regarding the use, procuring or offering of a child under 18 years of age for prostitution, including the number of investigations, prosecutions and penalties imposed.
Clause (c). Use, procuring or offering a child for illicit activities, in particular for the production and trafficking of drugs. The Government indicates that children are used for illicit activities, including the selling of drugs. Since 2015, it has conducted awareness-raising activities to protect children from their use in illicit activities.
The Committee notes that there is no provision explicitly prohibiting the use, procuring or offering of a child for illicit activities. However, the draft Labour Code of 2019 provides, in its section 127 on the employment of children, that a person who uses a child in any activity constituting one of the worst forms of child labour (including use, procuring or offering of a child for illicit activities, including the production and trafficking of drugs as defined in the relevant international conventions or treaties, according to section 2) commits an offence and is liable to a fine or to imprisonment for a term not exceeding 12 months or to both, unless severe penalties are provided for the relevant offence (subsection 11). Given the seriousness of the offence and the dissuasive effect that the penalties should have (see 2012 General Survey on the fundamental Conventions, paragraph 637), legislation providing for the possibility of a fine alone cannot be considered effective. Therefore, the Committee requests the Government to include in its legislation provisions which would provide for sufficiently effective and dissuasive sanctions of imprisonment and not just fines for the use, procuring or offering of a child for illicit activities, including the production and trafficking of drugs. The Committee also requests the Government to indicate under which provisions of its national legislation the perpetrators of this offence may be punished, as well as the number of violations reported, of prosecutions conducted and the nature and number of penalties applied.
Clause (d) and Article 4. Hazardous work and determination of hazardous work. The Government indicates that Article 29 of the Provisional Constitution states that no child may perform work or provide services that are not suitable for the child’s age or create a risk to the child’s health or development in any way. The Government further indicates that the list of hazardous work determined under Article 4(1) of the Convention has been periodically examined and monitored. It states that in some instances, child perform hazardous work while working on the street. Since 2015, the Government has conducted regular awareness-raising activities to reduce the exposure of children to hazardous work.
The Committee notes that the existing Labour Code of 1972 states, in its section 90, that the Secretary may, by decree, prescribe the types of work prohibited for children and young persons (subsection 1). Section 110 provides that the labour inspectors shall have powers to give due warning to employers, and to fix a time limit within which the irregularities shall be rectified (subsection 11). Section 144 provides that any person who contravenes the provisions of this Code or regulations made hereunder for which no penalty is specifically provided in this Part, shall be guilty of an offence punishable with imprisonment for a term not exceeding six months or with a fine or with both such imprisonment and fine.
The Committee also notes that the draft Labour Code of 2019 provides, in its section 127, that the employment of a child under 18 years of age must be consistent with the fullest physical and mental development of the child (subsection 2). The minimum age for admission to any type of employment or work which by its nature or the circumstances in which it is carried out is likely to jeopardize the health, safety or moral of children is 18 years (subsection 3). The Minister may authorize employment covered by subsection 3 from the age of 16 years on condition that the health, safety and morals of children concerned are fully protected and that they have received relevant and adequate instructions or training in that type of work (section 128). Section 128 requires the Minister to make regulations declaring any work, activity or contract of employment harmful to the health, safety or morals of a child.
According to section 127 of the draft Labour Code, a person who uses a child in any activity constituting the worst forms of child labour commits an offence, and, if convicted, is liable to a fine or to imprisonment for a term not exceeding 12 months or to both (subsection 11). If a child is killed, becomes disabled, dies or suffers any bodily injury in consequence of his or her employer having contravened any provision of this Chapter, the employer is, in addition to any other penalty, liable to a fine or to imprisonment for a term not exceeding three years or to both (subsection 13). The Committee requests the Government to communicate the list of hazardous types of work determined pursuant to Article 4(1) of the Convention. It trusts that the draft Labour Code of 2019 will be adopted in the near future, and requests the Government to provide information on the progress made in this regard. Lastly, the Committee requests the Government to provide information on the number of violations reported, prosecutions conducted and the nature and number of penalties applied, with regard to hazardous types of work performed by children under the age of 18.
Article 5. Monitoring mechanisms. 1. Somali National Tripartite Consultative Committee (SNTCC). The Government indicates that the Somali National Tripartite Consultative Committee (SNTCC), comprising the Federal Government, Federal member States representatives of labour ministries, and trade unions and employer’s representatives, has been established in order to deal with all labour issues. The Government stresses that the SNTCC has improved social protection and encouraged social dialogue, including for the elimination of the worst forms of child labour. The Committee requests the Government to provide information on the activities of the SNTCC and on their impact in eliminating the worst forms of child labour.
2. Inter-Ministerial Task-Force on Trafficking and Smuggling of migrants and children. The Committee notes that, in its report to the Committee on the Rights of the Child of October 2019, the Government indicated that it has set up the Inter-Ministerial Task-Force on Trafficking and Smuggling of migrants and children at the federal level. The Committee requests the Government to provide information on the activities of the Inter-Ministerial Task-Force on Trafficking and Smuggling of migrants and children and of the impact of these activities in reducing trafficking of children.
3. Coordination mechanism comprising the Panel Ministerial Committee and the Joint steering Committee. The Government indicates that a Panel Ministerial Committee, consisting of the line ministers, including the Ministry of Women and Human Rights Development, Ministry of Justice, Ministry of Internal Security, Ministry of Defence, Ministry of Education, and Ministry of Labour and Social Affairs, meets monthly to discuss and develop policies and directions concerning the protection of children’s rights and the eradication of the worst forms of child labour in Somalia. It also indicates that a Joint steering Committee has been established in 2014 by the Ministry of Women and Human Rights Development, which comprises representatives of the Federal Government, representatives of Federal member States, civil society organisations, national non-governmental organizations as well as United Nations and International Organizations working in the child protection sector.
The Panel Ministerial Committee and the Joint Steering Committee have been structured in a coordination mechanism and programmes have been implemented in this framework for the protection of children. The major activities of this coordination mechanism include reforming the existing policies and laws, monitoring the military bases for the recruitment of children in armed forces, awareness raising to eliminate child labour and providing human rights training to the national Somali army. The Committee requests the Government to continue to provide information on the activities of the coordination mechanism, comprising the Panel Ministerial Committee and the Joint steering Committee, and to provide information on the impact of these activities on the elimination of the worst forms of child labour.
4. Labour inspectorate. According to the Government’s report, the labour inspectorate is weak, resulting in a lack of routine workplace labour inspections. The Committee requests the Government to provide information on the structure and organisation of the labour inspection in Somalia, including the number of labour inspectors as well as the training they undertake, if any. Please also provide information on the potential role of the Federal member States regarding labour inspection. The Committee also requests the Government to supply copies or extracts of inspection reports regarding the monitoring of the worst forms of child labour.
Article 7(2). Effective and time-bound measures. Clause (b). Direct assistance for the removal of children from the worst forms of child labour and for their rehabilitation and social integration. Child victims of trafficking. The Committee notes the absence of information in the Government report on this point. The Committee requests the Government to provide information on any measures taken to identify child victims of trafficking and to ensure their rehabilitation and social integration.
Clause (d). Identifying and reaching out to children at special risk. 1. Street children. The Government indicates that children work in the street (including shining shoes, washing cars, conducting minibuses, vending and/or assisting khat – a plant containing an amphetamine-like stimulant – traders). It further states that it has facilitated the establishment of care centres for street children, in order to minimize their number in the country.
The Committee notes that the Social Protection Policy of the Government of 2019 underlines that orphans and street children are amongst the poorest and most vulnerable children, and that it is important that all social protection schemes be child-sensitive, which would mitigate the effects of poverty on families (page 8). The Committee requests the Government to provide information on the measures taken to protect street children from the worst forms of child labour and to ensure the rehabilitation and social integration of children actually removed from the streets. It also requests the Government to provide information on the number of children living and working on the street identified and provided with direct assistance for their rehabilitation and social integration, including through care centres and social protection measures.
2. Refugees and internally displaced children. The Government indicates that there is a high number of internally displaced persons (IDPs), living in and around the major cities, and estimates that more than 60 per cent of them are children. In Mogadishu and surroundings, it is estimated that there are more than 369 000 IDPs. It also indicates that some parents, particularly in poor and internally displaced families, make their children work to generate income and survive. The Government has initiated several projects to assist and improve the lives of IDPs.
The Committee notes that the Social Protection Policy stresses that IDPs face greater risk of trafficking in persons, and that the social protection system will pay special attention to their needs (pages 9 and 26). The Committee also notes that the Government has developed a National Policy on Refugee-Returnees and Internally Displaced Persons , with a view to protect refugee-returnees, IDPs and host communities, including children. The guiding principles of the policy include protecting displaced persons during displacement, including against sexual exploitation, forced labour, and recruitment and use of children by parties in conflicts (pages 16-17). The policy acknowledges the responsibility of the Federal Government of Somalia and of the Federal member States in creating durable solutions for IDPs and returning refugees, including access to education.
The Committee further notes that, in its report to the Committee on the Rights of the Child of October 2019, the Government indicated that it established the Somalia National Commission for Refugees and IDPs to address the needs of refugees and IDPs (CRC/C/SOM/1, paragraph 296). The Committee requests the Government to provide information on the adoption and implementation of the National Policy on Refugee-Returnees and IDPs, including the activities conducted in this framework to protect displaced children from the worst forms of child labour, and the results achieved in this regard. It further requests the Government to provide information on the measures taken to ensure access to education for internally displaced children. Lastly, the Committee requests the Government to provide information on any other mechanism, including the National Commission for Refugees and IDPs and any mechanism at the Federal member State-level, that has been put in place to protect refugees and internally displaced children from the worst forms of child labour, including in IDPs settlements.
Clause (e). Special situation of girls. The Government indicates that children, mainly girls, are involved in domestic work. Furthermore, the National Employment Policy of 2019 states that young girls are exploited for domestic chores or face sexual and gender-based violence. The Committee requests the Government to provide information on the measures taken or envisaged to take account of the special situation of girls working in domestic service so as to protect them against the worst forms of child labour.
Article 8. Poverty reduction. The Committee notes that the Social Protection Policy aims to build a comprehensive and coherent social protection system (developed for the period 2019 to 2040) that combats poverty and vulnerability in Somalia. It will prevent people from falling into poverty and provide essential support to people who live in poverty.
The Committee also notes that the Federal Government has developed its ninth National Development Plan (NDP-9), for the period 2020–24, which aims at reducing poverty and inequality through inclusive economic growth and employment, improved security and rule of law, and strengthened political stability (page 20). Considering that poverty reduction programmes contribute towards breaking the cycle of poverty, which is essential for eliminating the worst forms of child labour, the Committee requests the Government to supply information on the impact of the Social Protection Policy and the NDP-9 in eliminating the worst forms of child labour.
Application of the Convention in practice. The Government indicates that efforts to eliminate the worst forms of child labour in Somalia have been increasing year after year. Government institutions and social partners work together for the protection of children. The practical difficulties encountered in the application of the Convention include security problems, high levels of poverty, negative public attitudes, drug selling, the economic situation of the country, a lack of political will, and weak law enforcement. The Government further indicates that there is no available information concerning investigations made in the area of the worst forms of child labour in Somalia. It states that law enforcement is the greatest challenge for the implementation of the Convention, as no labour inspector is specifically responsible for it.
The observations of the Federation of Somali Trade Unions (FESTU), received on 1 September 2018, stated that the Government has not taken any meaningful measures to implement the Convention. The Committee requests the Government to provide any information, including copies of studies and reports, on the worst forms of child labour, to enable the Committee to assess developments in relation to the nature, extent and trends of the worst forms of child labour and the number of children protected by the measures giving effect to the Convention.
© Copyright and permissions 1996-2024 International Labour Organization (ILO) | Privacy policy | Disclaimer