Observación (CEACR) - Adopción: 1992, Publicación: 79ª reunión CIT (1992)

1. In its previous comments the Committee referred to the provisions of two Ordinances introducing, on the one hand, obligations with regard to the conservation and utilisation of the soil and, on the other, the obligation to create and maintain minimum areas of food crops (Ordinances Nos. 710/275 and 710/276 of 25 October 1979, as amended by Presidential Decrees Nos. 100/143 and 100/144 of 30 May 1983).

The Committee had noted the Government's statements to the effect that these texts were of an exhortative character and that in practice the work covered by the texts in question was voluntary. The Committee had expressed the hope that measures would be adopted to make the voluntary nature of the provisions statutory.

The Committee notes the Government's statement that consultations with the government departments concerned have not led to a specific decision. The Committee wishes to point out in this connection that Ordinances Nos. 710/275 and 710/276 were adopted pursuant to Legislative Decree No. 1-22 of 24 July 1979 laying certain specific obligations on farmers. Consequently the legal obligations prescribed in those Ordinances are still fully valid. The Committee asks the Government to indicate what measures are contemplated to embody in legislation the voluntary nature of the work to which the aforementioned Ordinances relate.

2. In its previous comments the Committee observed that the texts on compulsory cultivation, porterage and public works (Decree of 14 July 1952; Ordinance No. 21/86 of 10 July 1953; Decree of 10 May 1957) had not been formally repealed.

The Committee notes the Government's statement that the colonial character of the provisions complained of is beyond dispute. It also notes that according to the Government the texts in question are not in the codes and laws of Burundi, that this proves that they are no longer applied; and that they were probably repealed during the period preceding independence.

The Committee points out that, under section 1 of the Act of 29 June 1962, legislative texts issued before independence will remain applicable until expressly repealed.

The Government states further that the texts in question were replaced by Ordinances Nos. 710/275 and 710/276. The Committee has drawn attention above to the mandatory nature of these texts.

The Committee reminds the Government of the need to repeal the aforementioned texts expressly and unmistakably, and asks the Government to state what measures it intends to take in that connection.

3. In its previous comments the Committee noted that Legislative Decree No. 1/16 of 29 May 1979 establishes the obligation for all persons over 18 years of age to carry out community development work one half-day per week on pain of a one-month prison sentence. The Committee notes the Government's reiteration that the penalty described in section 5 of the Legislative Decree is to be abolished and that consultations with the government department concerned are continuing.

The Committee points out that Article 2, paragraph 1, of the Convention defines as forced or compulsory labour all work or service exacted "under the menace of any penalty". The Committee asks the Government to state what progress has been made in repealing section 5 of Legislative Decree No. 1/16 of 29 May 1979.

The Committee had also pointed out in its comments that under section 3 of Legislative Decree No. 1/16 and Decree of Application No. 100/79 of 29 May 1979 the role of the municipalities was limited to supervising the execution of the work according to the programme adopted at the regional level.

The Committee had reminded the Government of the criteria determining the limits of the exception provided for in Article 2, paragraph 2(e), of the Convention:

- the services must be "minor services", i.e. relate primarily to maintenance work and - in exceptional cases - to the erection of certain buildings intended to improve the social conditions of the population of the community itself (a small school, a medical consultation and treatment room, etc.);

- the services must be "communal services" performed "in the direct interest of the community", and not relate to the execution of works intended to benefit a wider group;

- the "members of the community" (i.e. the community which has to perform the services) or their "direct" representatives (e.g. the village council) must "have the right to be consulted in regard to the need for such services".

The Committee notes that the Government mentions contacts between the ministries concerned for the purpose of undertaking studies with a view to the revision of these texts in order to bring the law into conformity with the Convention.

The Committee asks the Government to supply information on the specific measures adopted or contemplated to ensure the direct participation of the populations concerned in the preparation of work programmes.

4. In its previous comments, the Committee referred to sections 340 and 341 of the Penal Code which sanctions vagrancy and begging by placing them at the disposal of the Government for one to five years during which the persons concerned are made to work in penal institutions.

The Committee notes the Government's statement that the provisions of the Penal Code have nothing to do with a general obligation to work, with penalties for non-compliance. The Government explains that, in the eyes of the Burundi legislator, it is mainly a matter of stemming the flight from the countryside in which many young people are leaving it for the urban centres where, failing to find work, they resort to begging and drift into crime. The Government stated in its previous reports that, as part of the campaign against the flight from the countryside, persons placed at the Government's disposal under sections 340 et seq. of the Penal Code were as a rule turned back to their locality of origin and, if they persisted, were placed in penitentiary establishments devoted to various activities. The Government states further that placement at its disposal is in principle a matter for the criminal courts and that no court has ever sentenced anyone for the offence of vagrancy or begging.

The Committee, however, noted that this might amount in practice to leaving the persons concerned no choice but to accept work within the limited range available in the rural areas on pain of finding themselves, when they moved away in search of work and failed to find it at the first attempt, subjected to a penalty including work in a penitentiary institution.

The Committee asks the Government to review the situation and to indicate what measures it has taken or intends to take to ensure that the provisions in question cannot be applied to persons who are simply out of work.