Demande directe (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Communication of texts. Having noted the Government’s indications in its previous report concerning the revision of the Prisons Act, the Committee reiterates its hope that the Government will supply a copy of the revised Act, as soon as it is adopted. Pending the adoption, the Committee again requests the Government to provide a copy of sections 75 and 76 of the Prisons Act (Cap. 9:02) concerning the work of prisoners, to which reference was made in its previous report.

Articles 1 (paragraph 1), and 2 (paragraph 1), of the Convention.
1. Bonded labour. The Committee previously noted the Government’s reply to the allegations made by the representative workers’ organizations, in which the Government indicated, in particular, that no reports had been received regarding bonded labour either in domestic service or in tobacco sector, and that measures had been taken to reinforce the role of labour inspectors in all 28 district labour offices in Malawi. As regards the Tenancy Labour Bill, the Government indicated that it would not be submitted to Parliament before its possible negative and positive effects on the economy are determined, and that a study was conducted with the objectives to identify the possible ways of abolishing the tenancy labour system in Malawi, and to specify how direct wage labour would effectively replace the tenancy labour system in Malawi.

The Government indicates in its latest report that the study has been published and that it clearly indicates that the tenancy system is still favoured by tobacco growers for lack of viable alternatives. It also indicates that the study recommended a gradual phasing out of the system, starting with regulating it. As regards the Tenancy Labour Bill, the Government informs that it is still under discussion with the social partners and other stakeholders.

While noting these indications, the Committee requests the Government to supply a copy of the study referred to above, which, according to the Government, was attached to the report, but has not been received in the ILO. The Committee also hopes that the Tenancy Labour Bill will soon be adopted and requests the Government to keep the ILO informed of the developments.

2. Freedom of career military personnel to leave the service. The Committee previously noted the Government’s indication in the report that military officers and other career military service personnel have the right to leave the service, in time of peace, at their own request, after seven or ten years of service, by means of notice of reasonable length. It requested the Government to indicate provisions governing this issue and to supply copies thereof. The Committee also noted the provision of section 26(f) of the Defence Force Act, under which an officer may be discharged at any time during the currency of any term of engagement, at his own request on compassionate grounds. The Committee pointed out that career members of the armed forces, who have voluntarily engaged in the armed forces, should not be deprived of the right to leave the service in peacetime within a reasonable period, either at specified intervals, or with previous notice.

While noting the Government’s statement in the report that it is still consulting the relevant departments on this issue, the Committee again requests the Government to describe such “compassionate grounds” for resignation, indicating the criteria applied in accepting or rejecting a resignation. Please also supply copies of any regulations relevant to the resignation of career members of the defence force, made by the Minister under section 17(1) of the Defence Force Act (such as e.g. the Defence Force (Officers) Regulations or the Defence Force (Other Ranks) Regulations).

Article 2, paragraph 2, subparagraph (a). Compulsory military service. The Committee previously noted that under section 5 of the Defence Force Act (No. 11 of 2004), the defence force shall be charged with the defence of, and maintenance of order in, Malawi and with such other duties as are in accordance with the Constitution and the Act. Recalling that Article 2(2)(a) of the Convention exempts from its provisions work or service exacted in virtue of compulsory military service laws only if such work or service is of a purely military character, the Committee again requests the Government to describe such “other duties”, indicating in particular, what guarantees are provided to ensure that services exacted for military purposes are used for purely military ends.

Article 2, paragraph 2, subparagraph (e). Minor communal services. The Committee previously noted that, under section 3 of the Employment Act 2000, the expression “forced labour” does not include minor communal services of a kind performed by members of the community in the direct interest of the community. It noted the Government’s indication in its previous report that, when the community wants to undertake any work or service to improve their living standards, this is done in consultation with all the people concerned in that area. The Committee requested the Government to provide information on any exaction of such minor communal services in practice and on the consultations of the members of the community concerning the need for such services.

The Committee notes the Government’s indication in its report that minor communal services are mainly done in communities in rural areas and mostly involve upgrading rural roads, which are affected by rains, in order to have access to markets or to schools. The Government also indicates that the issue was tabled for discussion in the current law review process.

While noting this information, the Committee wishes to draw the Government’s attention to the criteria which determine the limits of this exception from the scope of the Convention and serve to distinguish it from other forms of compulsory services which, under the terms of the Convention, must be abolished (such as forced labour for general or local public works). These criteria are as follows:

–      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” representative (e.g. the village council) must “have the right to be consulted in regard to the need for such services”.

The Committee hopes that the above considerations will be taken into account in the course of the current law review process and that the Government will keep the ILO informed of the developments in this area. Pending the revision, the Committee requests the Government to continue to provide information on the exaction of minor communal services in practice and on the consultations of the members of the community concerning the need for such services.