Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Article 3 of the Convention. Worst forms of child labour. Clause (a). All forms of slavery or similar practices. 1. Sale and trafficking of children for sexual exploitation. In its previous comments, the Committee noted that the Committee on the Rights of the Child, in its concluding observations of July 2001 (CRC/C/15/Add.153, paragraphs 68 and 69), expressed grave concern at the information concerning the sale, trafficking, abduction and exploitation for pornography of young girls and boys in the country or from the country to another country. It considered that it was a matter of great concern that the national legislation does not sufficiently protect children from trafficking and recommended that the Government adopt appropriate legislation and penalize persons responsible for such practices. The Committee noted that section 67 of the Penal Code prohibits the forcible abduction, arrest or detention of any person. Furthermore, section 68 of the Penal Code prohibits the abduction, arrest or detention of any person for sale as a slave or the use of persons placed under one’s authority for the same purpose. The Committee observed that the provisions of the Penal Code penalizing the sale and trafficking of children for sexual exploitation are not adequate, in view of the scale of the phenomenon in the country, and asked the Government to take the necessary measures to prohibit and penalize this worst form of child labour.

The Committee notes the information supplied by the Government to the effect that article 16(3) and (4) of the Constitution of the Democratic Republic of the Congo of 18 February 2006 states that no person may be kept in slavery or in similar conditions; no person may be subjected to cruel, inhuman or degrading treatment; and no person may be subjected to forced or compulsory labour. The Committee notes with interest the Government’s statement to the effect that section 174j of the Penal Code, incorporated in the Code in July 2006, states that any person committing an act or transaction relating to the trafficking or sexual exploitation of children or any other person, in return for remuneration or any other benefit, shall be liable to penal servitude ranging from ten to 20 years. Moreover, the Committee notes the Government’s statement that Act No. 06/18 strengthens the measures to penalize rape and introduces new provisions with regard to other offences, including enticing minors into debauchery or forced prostitution, trafficking and sexual exploitation of children, and pornography. The Committee requests the Government to supply a copy of section 174j of the Penal Code and Act No. 06/18. It also requests the Government to provide information on the application of section 174j of the Penal Code and Act No. 06/18 in practice, including, in particular, statistics on the number and nature of infringements reported, investigations, prosecutions, convictions and penalties imposed.

2. Forced recruitment of children for use in armed conflict. The Committee noted that article 184 of the Transitional Constitution provides that no one shall be recruited into the armed forces of the Democratic Republic of the Congo or take part in war or hostilities unless they have reached the age of 18 years at the time of recruitment. It also noted that the Government adopted Legislative Decree No. 066 of 9 June 2000 concerning the demobilization and reintegration of vulnerable groups present within the fighting forces (Legislative Decree No. 066). The Committee also noted that, according to the report of the United Nations Secretary-General on children and armed conflict of 9 February 2005 (A/59/695-S/2005/72, paragraphs 15–22), even though positive steps have been taken, including the integration of several armed groups into the Forces armées de la République démocratique du Congo (FARDC), the new national army, these various military units were still not fully integrated and, in many cases, they were only theoretically part of the FARDC and some of them continued to use children. According to the report, despite a certain amount of progress, thousands of children remained in the country’s armed forces and armed groups, and recruitment, albeit not systematic, was continuing.

The Committee notes the United Nations Secretary-General’s report of 28 June 2007 on children and armed conflict in the Democratic Republic of the Congo (S/2007/391), which covers the period from June 2006 to May 2007. It also notes the United Nations Secretary-General’s report of 21 December 2007 on children and armed conflict (A/62/609-S/2007/757, paragraphs 6–9 and 38–45), which covers the period from October 2006 to August 2007. According to these reports, the number of children recruited by the armed groups and armed forces has fallen by 8 per cent, which can be attributed in particular to the progress made in the implementation of the programme for the disarmament, demobilization and reintegration of children, the integration of the army, the reduction in the number of combat zones and the action taken by child protection networks against the recruitment of children. However, the parties to the conflict continue to abduct, recruit and use children. The number of children in the FARDC-integrated and non-integrated brigades remains high, particularly in the Ituri region and the two Kivu provinces.

According to the reports of the United Nations Secretary-General, recruitment of children was intensified in North Kivu, and also in Rwanda and Uganda, prior to and throughout the mixage (integration) process, which appears to be linked to the strategy of commanders loyal to Laurent Nkunda to increase the number of troops to be integrated and strengthen the forces before engaging in combat operations against the Forces démocratiques de libération du Rwanda (FDLR) and the Mai-Mai in North Kivu. Children who fled or were released indicated that recruitment was continuing actively in the returnee settlements of Buhambwe, Masisi territory, the Kiziba and Byumba refugee camps in Rwanda, the towns of Byumba and Mutura in Rwanda and the town of Bunagana on the border between the Democratic Republic of the Congo and Uganda. Mai-Mai groups still active in North Kivu were alleged still to be recruiting children, including girls.

The Committee notes that, according to the two 2007 reports of the Secretary-General, the number of abductions reported in the region of Ituri and the provinces of North and South Kivu remains high. The abducted children have been recruited by armed groups in 30 per cent of cases, been victims of rape in 13 per cent of cases, and subjected to forced labour (carrying the equipment of armed elements during troop redeployments) in 2 per cent of cases. Furthermore, in 17 per cent of cases, the victims were children previously associated with armed groups whom the FARDC arrested in order to make them provide information on the groups or extort money from their families. Moreover, even though there has been a reduction in the number of injuries or murders involving children, children continue to be victims of the fighting. Despite the adoption of two laws against sexual violence on 20 July 2006, the number of incidents of rape and other sexual violence against children remains extremely high. Furthermore, the Secretary-General indicates that children have been detained for alleged association with armed groups, in violation of international standards, and are subjected to mistreatment and torture and deprived of food.

The Committee notes the information supplied by the Government to the effect that it is giving its fullest attention to the forced recruitment of children for use in armed conflict and is doing its utmost to stop them being enlisted. In order to enforce the applicable legislation, the Government is taking steps, in cooperation with the International Criminal Court, to prosecute Mr Thomas Lubanga, a warlord operating in Ituri. In addition, proceedings have also been instituted at the Auditorat militaire (military prosecutor’s office) of Lubumbashi garrison in Katanga province against Mr Kyungu Mutanga, warlord of the Mai-Mai “negative forces” of North Katanga, who is facing the same charges. As regards the national armed forces, the FARDC central command issued an explicit instruction in May 2005 to all commanders not to recruit children under 18 years of age and that anyone failing to comply would face severe penalties. The FARDC chief military prosecutor subsequently instructed all garrison prosecutors to prosecute any individual violating the law or military orders. On this basis, the military tribunal of Bukavu garrison convicted Major Biyoyo of the former Mudundu movement on 17 March 2006 for insurrection, desertion abroad and the arbitrary arrest and illegal detention of children in South Kivu in April 2004. However, the Government recognizes that, despite the progress made in the penalization of child recruitment, the continued fighting in certain areas increases the risk of children being enlisted. This has been the case in Ituri and the provinces of North and South Kivu, where the abduction of some 30 children, including girls, has been reported.

The Committee notes that the Government has adopted certain measures to end the impunity which has been enjoyed by perpetrators of the forced recruitment of children for use in armed conflict, particularly on an international scale, through its collaboration with the International Criminal Court for instituting legal proceedings against Mr Thomas Lubanga, and on a national scale, through the legal proceedings instituted against Mr Kyungu Mutanga. However, the Committee notes that, despite these measures taken by the Government, children are still being recruited and forced to join illegal armed groups or the armed forces. It expresses its profound concern with regard to the persistence of this practice, especially as it leads to other violations of the rights of children, in the form of abductions, murders and sexual violence. It also voices its concern with regard to the detention of children for presumed association with armed groups, in violation of international standards. The Committee urges the Government to intensify its efforts to improve the situation and to adopt, as a matter or urgency, immediate and effective measures to put a stop in practice to the forced recruitment of children under 18 years of age by armed groups and the armed forces, particularly in Ituri, North Kivu and South Kivu, and to supply information on any new measure taken to this end. With reference to Security Council resolution No. 1612 of 26 July 2005, which recalls “the responsibilities of States to end impunity and to prosecute those responsible for genocide, crimes against humanity, war crimes and other egregious crimes perpetrated against children”, the Committee urges the Government to take measures to ensure that sufficiently effective and deterrent penalties are imposed on persons found guilty of recruiting or using children under 18 years of age for the purposes of armed conflict. It requests the Government to supply information in this regard. Finally, the Committee requests the Government to send a copy of Legislative Decree No. 066 of 9 June 2000 concerning the demobilization and reintegration of vulnerable groups present in the fighting forces.

Clause (d). Hazardous work. Mines. In its previous comments, the Committee noted the observations from the Confederation of Trade Unions of the Congo to the effect that young persons under 18 years of age are employed in mineral quarries in the provinces of Katanga and East Kasäi. The Committee also noted that the United Nations Special Rapporteur, in her report of April 2003 on the situation of human rights in the Democratic Republic of the Congo (E/CN.4/2003/43, paragraph 59), noted that military units are recruiting children for forced labour, especially for the extraction of natural resources. The Special Rapporteur added that non-governmental organizations (NGOs) in South Kivu had informed her of children being recruited by armed groups to work in mines. The Committee further noted that, under section 32 of Ministerial Order No. 68/13 of 17 May 1968 determining the conditions of work of women and children (Order No. 68/13), the extraction of minerals, shale, materials and debris from mines, open-cast mines and quarries, and also earthworks, are prohibited for young persons under 18 years of age. The Committee noted that section 326 of the Labour Code establishes penalties for violations of the provisions of Article 3, paragraph 2(d), relating to hazardous work. The Committee observed that, although the legislation is in conformity with the Convention on this point, child labour in mines is a problem in practice.

The Committee notes the Government’s statement confirming the allegations made by the Confederation of Trade Unions of the Congo on the exploitation of young persons under 18 years of age in mineral quarries in the provinces of Katanga and East Kasai. It also notes that section 13(13) of the recently adopted Ministerial Order No. 12/CAB.MIN/TPS/045/08 of 8 August 2008 determining the working conditions of children prohibits the employment of young persons under 18 years of age in work performed underground, under water, at dangerous heights or in confined spaces. Moreover, the Committee notes the Government’s indication that measures will be taken by the Committee for the Elimination of Child Labour and also by the labour inspectorate. The Committee requests the Government to supply information on the measures which will be taken by the Committee for the Elimination of Child Labour and by the labour inspectorate to prohibit hazardous work for children in mines. It also requests the Government to provide information on the effective application of the legislation on the protection of children in practice against hazardous work in mines, including, for example, statistics on the number and nature of offences reported, investigations, prosecutions, convictions and penalties imposed.

Article 7, paragraph 2. Effective and time-bound measures. Clause (b). Removal of children from the worst forms of child labour and ensuring their rehabilitation and social integration. 1. Sale and trafficking of children for sexual exploitation.  The Committee noted that the Committee on the Rights of the Child, in its concluding observations of July 2001 (CRC/C/15/Add.153, paragraph 69), recommended that the Government provide the police force and border guards with special training to help in combating the sale, trafficking and sexual exploitation of children, and establish programmes to provide assistance, including rehabilitation and social reintegration, to the child victims of sexual exploitation.

The Government states in its report that it has established a multi-sectoral cooperation and action framework to prevent and respond to violence inflicted on women, young persons and children, a framework which includes the ministries responsible for human rights, women and the family, and social affairs, United Nations agencies, including the United Nations Children’s Fund (UNICEF) and the United Nations Development Programme (UNDP), and also NGOs. Action taken within this framework includes the adoption of laws on sexual violence, awareness raising so that victims report their aggressors, psychological and social support for victims, medical support through the creation or reinforcement of health centre facilities to provide suitable care for victims, and legal support through the setting up of legal advice centres. The Committee notes the measures taken by the Government to remove children from sale and trafficking for sexual exploitation and to ensure their rehabilitation and social integration. It requests the Government to intensify its efforts and supply information in its next report on the number of children who have actually been removed from this worst form of child labour and on specific measures which have been adopted to ensure the rehabilitation and social integration of these children.

2. Child soldiers. With reference to its previous comments, the Committee notes that, according to the reports of the United Nations Secretary-General of 28 June 2007 and 21 December 2007, the national programme for disarmament, demobilization and reintegration expressly provided for the release of children. The operational framework for children associated with armed forces and groups was launched in May 2004, and approximately 30,000 children, including those who had been released before the adoption of the operational framework, were separated from the armed forces and groups between 2003 and December 2006. Of this number, 15,167 received assistance with reintegration, with 6,066 receiving aid to enable them to return to school and 9,010 enrolling in programmes designed to equip them for finding the means of subsistence. Implementation of the national programme for disarmament, demobilization and reintegration was delayed because of the brassage process and at times it proved difficult to release the children. In addition, according to the Secretary-General’s reports, 4,182 children, including 629 girls, were released from the armed forces and groups in the east of the country during the reporting periods. In Ituri, 2,472 children, including 564 girls, were able to leave the ranks of the MRC, FRPI and FNI militias. In North Kivu, 1,374 children, including 52 girls, were released and in South Kivu, 336 children, including 13 girls, were also released.

The Government states in its report that the issue of registering the girls and removing them from the armed forces is a sensitive matter. Afraid of being socially excluded if they are found to have been associated with armed forces or groups, the girls prefer to return discreetly to civilian life. The Government also states that a programme to raise community awareness regarding family reunification and the social-economic reintegration of children released from armed forces and groups has been implemented in all the provinces of the country. In this context, children are catered for in employment centres, searches are undertaken with a view to family reunification and social and economic reintegration measures are taken. However, programmes for the economic reintegration of children are hampered by the lack of possibilities available to improve their economic situation and the financial problems arising from a lack of long-term support mechanisms. As a result, the children are at risk of being re-enlisted in the armed forces or groups. However, the Government points out that it expects to resolve the financial problems in order to revive the programme for the social, vocational and economic reintegration of children. As regards the measures for psychological rehabilitation, the Government acknowledges that the transitional support structures  are deficient. The impact on some children has been so great that they find it difficult to readjust to family life. The Committee notes the information supplied by the Government on the measures it has taken to improve the situation. In this regard, the Committee requests the Government to intensify its efforts and adopt time-bound measures to remove children from armed forces and groups, with special attention given to girls. Furthermore, it requests the Government to revive the programme for social, vocational and economic reintegration and improve the implementation of psychological rehabilitation measures. Finally, the Committee requests the Government to indicate the number of young persons under 18 years of age who have been rehabilitated and integrated into their communities.

The Committee is also raising a number of other issues in a direct request to the Government.