Solicitud directa (CEACR) - Adopción: 2005, Publicación: 95ª reunión CIT (2006)

The Committee notes the adoption of the new Labour Code (Act No. 033-2004/AN of 29 October 2004). It notes with interest that section 5 provides that no one can make use of forced or compulsory labour in any form in the five cases envisaged in Article 1 of the Convention.

The Committee wishes to recall, by way of a preliminary remark, that work imposed upon persons as a consequence of a conviction in a court of law does not, in most cases, bear any relation with the application of this Convention. However, where an individual is, in any manner whatsoever, compelled to work, for example in the form of prison labour, because she or he has expressed certain political views or views opposed to the established political, social or economic system, or has participated in a strike, this lies within the scope of the Convention. Accordingly, prison sentences, where they involve compulsory labour, lie within the scope of the Convention when they penalize breaches of the prohibition to express views or opposition, or participation in a strike. In this respect, the Committee noted in its previous direct request that, by virtue of section 86 of Order No. 642 APAS of 4 December 1950 issuing the prison regulations, work is compulsory for all those convicted of general offences. It requested the Government to provide additional information on the effect given to certain provisions of the legislation which may have a bearing on the application of the Convention. The Committee notes that the Government’s latest report does not contain relevant information in this respect. It requests the Government to reply to the following points.

1. Article 1(a) of the Convention. Imposition of prison sentences involving an obligation to work as a punishment for expressing political views or views ideologically opposed to the established political, social or economic system.

 (a) Freedom of opinion and expression. The Committee notes that certain sections of the Penal Code could be used to repress the expression of political opinions through sentences of imprisonment involving compulsory labour. It notes in particular sections 177 to 180, under which any offence against the honour and delicacy of certain persons exercising public authority (sections 178 and 180), or against the authority of the judicial system or its independence (section 179), constitute offences which may be punished by prison sentences. Furthermore, sections 361 to 364 of the Penal Code provide for the punishment of slurs upon the honour and consideration of an individual, insults, calumny and slander. Section 364 provides for sentences of imprisonment for any person found guilty of committing defamation, as defined in section 361, namely "any allegation or imputation of a fact which is detrimental to the honour and consideration of individuals or entities to which the act is attributed". Under the terms of section 365, any person against whom legal action is taken for defamation shall have the opportunity to provide proof of the truth of her or his statements and thereby have such action ended. The Committee also notes that sections 114 to 123 of Ordinance No. 92-024bis/PRES of 29 April 1992 issuing the Code of Information contains similar provisions. This Ordinance also contains provisions prescribing sentences of imprisonment for certain press offences.

As the penal legislation and the prison legislation do not appear to contain provisions issuing special regulations governing the detention of persons convicted of offences of a political nature, any person who is convicted for one of the offences established by the above provisions of the Penal Code or the Code of Information may be compelled to perform prison labour. So as to be able to assess the scope of these provisions, the Committee would be grateful if the Government would provide detailed information on their application in practice, including copies of any relevant court decisions.

(b) Freedom of association. The Committee draws the Government’s attention to the importance for effective compliance with the Convention of the legal safeguards relating to the right of assembly, expression, demonstration and association, and the direct effect that limitations of these rights can have on the application of the Convention. Indeed, it is often through the exercise of these rights that political opposition to the established system can be expressed. In this respect, the Committee notes that, under the terms of sections 220 and 221 of the Penal Code, the maintenance or re-establishment of an association found to be unlawful by the authorities, and failure to comply with orders relating to the recognition of an association, may be punished by a sentence of imprisonment involving, as indicated above, the obligation to work.

The Committee recalls that the Convention prohibits the imposition of sentences of imprisonment involving labour as a punishment for persons holding or expressing political views or views ideologically opposed to the established political, social or economic system, as is the case of the penalties envisaged in sections 220 and 221 of the Penal Code referred to above. It requests the Government to indicate the criteria enabling the authority to prohibit or recognize an association and to provide information on the effect given in practice to sections 220 and 221 of the Penal Code. The Committee also requests the Government to provide a copy of Act No. 10/92 governing freedom of association.

(c) Freedom of assembly and demonstration. The Committee notes that section 120 of the Penal Code prohibits the formation of unarmed gatherings on public thoroughfares such as to disturb the peace. It requests the Government to indicate the penalty incurred in the event of the violation of this provision of the Penal Code and to provide copies of related court decisions.

2. Article 1(b). Mobilization and use of labour for purposes of economic development. National Development Service. The Committee notes that, under the terms of section 4 of Decree No. 98-291/PRES/PM/DEF determining the organization and operation of the National Development Service (SND), any national of Burkina Faso between 18 and 30 years of age may be required for SND. The period spent engaged in SND (12 months) is considered as time passed under military service. The procedures for the performance of SND are governed by Decree No. 98-292/PRES/PM/DEF, which provides that SND shall be accomplished in two successive phases, namely, training and production. During the first phase, those called up receive an essentially civic and patriotic training with the aim of preparing them morally and physically for tasks of socio-economic development (sections 24 and 25) and the acquisition of the rudiments of vocational training in priority sectors for development (section 28). During the second phase, those called up make their contribution to the socio-economic development of the country in the education, agriculture and stock-rearing sectors, as well as in other sectors making use of wage earners and persons called up from the rural and informal sectors (sections 30 to 35).

The Committee draws the Government’s attention to the fact that schemes involving the compulsory participation of young people, as part of their military service or instead of it, in activities directed towards the development of their country, have been considered incompatible with the Conventions on forced labour. The Committee requests the Government to provide additional information on the SND and practical examples of the work undertaken in the context of this service.

3. Article 1(d). Participation of public officials in a strike. The Committee notes that the right to strike of public officials is guaranteed by section 45 of the Act issuing the legal status applicable to posts and officials in the public service (Act No. 013/98/AN of 18 April 1998), and more particularly by Act No. 45-60/AN of 27 July 1960, issuing regulations respecting the right to strike of state officials and employees. However, this right may be restricted for certain categories of public officials, as section 1 of Act No. 45-60/AN provides that certain specific conditions of service may derogate from the right to strike of public officials. Furthermore, orders may be issued by the ministers concerned requisitioning public officials to ensure the continuation of the administration and the safety of persons and property (section 6). Persons who refuse to comply with a requisition order are liable to disciplinary sanctions (section 7). In this respect, the Committee notes that section 137 of Act No. 013/98/AN, referred to above, provides that any failing by a public official in her or his duties makes the latter liable to disciplinary measures without prejudice, where appropriate, to the penalties envisaged in the penal legislation.

The Committee recalls that the requisitioning of public officials is only possible in essential services in the strict sense of the term, that is those the interruption of which would endanger the life, personal safety or health of the whole or part of the population. It requests the Government to indicate the services in which public officials may be requisitioned with a view to ensuring a minimum service in the event of strikes, and the conditions governing such requisitions. It would also be grateful if the Government would indicate the penalties which may be applicable to public officials who have refused to comply with a requisition order. Finally, please provide copies of the specific conditions of service which derogate from the right to strike of public officials, as envisaged in section 1 of Act No. 45-60/AN.