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Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - South Sudan (RATIFICATION: 2012)

The Committee notes the Government’s first report on the Convention including the attached documentation. However, it observes that the Government’s report has been overtaken by major events in the country, including the outbreak of violence since December 2013 and the subsequent Agreement on the Resolution of the Conflict in the Republic of South Sudan, signed on 17 August 2015, by the parties to the conflict (the “Peace Agreement”), establishing a Transitional Government of National Unity (A/HRC/31/49, 10 March 2016, paragraphs 10 and 59). The Committee notes that pursuant to article 13.1 of the Peace Agreement, a reconstituted National Constitutional Review Committee will draft or revise, as appropriate, other legislation provided in the Peace Agreement, as well as a Constitutional Amendment Bill upon signing the Peace Agreement with the latter’s incorporation into the Transitional Constitution of the Republic of South Sudan of 2011 (TCSS). The Committee notes the Government’s indication that a draft Labour Bill of 2012, drawn up with the assistance of the Office, was in the third and final reading at the National Legislative Assembly at the time of the submission of the Government’s first report. The Committee hopes that the efforts of the international community will assist South Sudan to attain political stability and establish an environment conducive to ensuring the protection afforded by the Convention, and requests the Government to provide information on the following.

Article 1(1)(a) of the Convention. Protection against discrimination. The Committee notes that section 14 of the Transitional Constitution of South Sudan (TCSS) provides for equal protection of the law without discrimination as to race, ethnic origin, colour, sex, language, religious creed, political opinion, birth, locality or social status. It further notes that section 6(1) of the draft Labour Bill prohibits direct and indirect discrimination against a worker or job applicant in any “work policy or practice”, which is broadly described in section 6(6) to include all aspects of employment and occupation in accordance with the Convention. Furthermore, section 6(3) of the draft Labour Bill 2012 defines discrimination as any distinction, exclusion or preference with the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation based on a wide range of grounds, including “race; tribe or place of origin; national extraction; colour; sex; sexual orientation; pregnancy or childbirth; marital status; family responsibilities; age; religion; political opinion; health or disability; HIV/AIDS; or membership in a trade union or participation in trade union activities”, but omits social origin from the prohibited grounds of discrimination. It further notes that section 7 prohibits and defines sexual harassment (including quid pro quo and hostile environment harassment). The Committee hopes that the Government will ensure that the draft Labour Bill, once enacted, will continue to prohibit direct and indirect discrimination on the basis of at least all the grounds set out in the Convention, including “social origin” covering all workers and all aspects of employment and occupation, and maintain the current protection against sexual harassment, and it requests the Government to provide information on any further progress made in its adoption. The Committee also requests the Government, to consider, in any upcoming review of the TCSS, to include the ground of “national extraction” in the constitutional provisions on non-discrimination, in accordance with Article 1(1)(a) of the Convention.

Civil service. The Committees notes that the draft Labour Bill of 2012, in its section 4(3) provides that “to the extent that the Civil Service Act 2011, or other law of the Government, establishes conditions of employment more favourable to employees covered by that Act than are established under this [Labour Bill], the relevant provisions of such Act shall apply to an employee so covered.” The Committee notes that section 19(a) of the Civil Service Act 2011, prohibits discrimination of all public officials, officials and employees in respect of remuneration, terms, conditions, benefits and privileges of service on grounds of “gender, marital status, ethnic origin, political affiliation, ideology, economic condition, religious or philosophical belief, cultural origins, or social opinions”. It notes that section 19(a) omits the grounds of race, colour, political opinion, national extraction and social origin, and does not appear to cover all aspects of employment, including recruitment. The Committee however notes that section 19(b) of the Civil Service Act, provides equal rights for women and men in recruitment, promotion and remuneration. With respect to political opinion, it needs to be determined whether political affiliation and ideology read together could cover “political opinion” within the meaning of the Convention. The Committee requests the Government to consider, in the context of the ongoing legislative process of the country and to avoid any conflict between section 19(b) of the Civil Service Act, and the draft Labour Bill, to amend section 19(b) so as to include at least all of the seven grounds enumerated in the Convention, namely, race, colour, sex, religion, political opinion, national extraction and social origin, and all aspects of employment, including recruitment. Please clarify whether the grounds of “political affiliation” and “ideology”, read together, would cover discrimination based on political opinion.

Articles 1(3) and 2. Access to vocational training. The Committee requests the Government to provide information on the measures taken to promote equality of opportunity and treatment with respect to access to vocational education, training and guidance, in the private sector.

Article 2. National equality policy. The Committee notes the Policy Framework and Strategic Plan (2012–16) of the Ministry of Labour, Public Service and Human Resource Development. Section 5.1 of the Policy places labour as a strategic area of focus and includes “elimination of discrimination at the workplace”. The Committee requests the Government to provide information, to the extent possible, on the implementation of the Policy Framework and Strategic Plan (2012–16), including any measures taken to give effective to the principle of the Convention.

Equality of opportunity and treatment between men and women. Special measures. The Committee notes that pursuant to article 16(4)(a) and (b) of the TCSS all levels of government are required to: (i) promote women participation in public life and their representation in the legislative and executive organs by at least 25 per cent to redress imbalances created by history, customs, and traditions; (ii) enact laws to combat harmful customs and traditions which undermine the dignity and status of women. Furthermore, the Committee notes that the TCSS contains several other provisions which are aimed at improving the representation of women members in the Council of Ministers (article 109); in the Judiciary (article 123(6)) in the independent institutions and commissions established under the TCSS or any other such bodies established by the National Government (article 142(3)), and in each legislative and executive organ of each state (article 162(7)), and which set a target of 25 per cent with respect to these. The Committee also notes that, once in force, section 6(5)(b) of the draft Labour Bill 2012 will allow for special measures to be adopted by the Government to assist persons who are “generally recognised as requiring special assistance”. The Committee requests the Government to provide information on the application in practice of these provisions, including any results achieved in improving the representation of women and the targets set.

Article 3(a). Cooperation with the social partners and other institutions. The Committee notes the Government’s indication that the Strategic Policy Framework and Plan has been elaborated with the social partners. The Committee notes that the National Human Rights Commission is charged with education and awareness raising (sections 6(1) and (7(1)(d) of the Human Rights Commission Act). The Committee requests the Government to indicate whether any initiatives have been taken, in collaboration with the workers’ and employers’ organizations and the National Commission for Human Rights, with a view to fostering the acceptance and the observance of the principle of equality of opportunity and treatment in employment and occupation. It also requests the Government to provide information on any educational and awareness-raising initiatives undertaken, including by the National Human Rights Commission, relating to the application and promotion of equality of opportunity and treatment in employment and occupation. Please include information on training on equality of opportunity and treatment in employment and occupation being offered to the judiciary, labour inspectors and other public officials who have to deal with these matters, as well as workers’ and employers’ organizations.

Article 3(d). Public service. The Committee notes that section 28(2) of the Civil Service provides that recruitment or promotion shall be exclusively based on the applicant’s suitability for the post and shall not be decided on grounds of race, creed, sex or religion etc. “unless specified otherwise by the Constitution, relevant government policy on gender or any other law”. The Committee requests the Government to provide full information on any separate provision or policy made regarding the employment of women in the civil service, including any special conditions or requirements applying to women by reason of the nature of the post. Please provide information on the manner in which section 28(2) of the Civil Service Act 2011 has been applied in practice, providing examples of the particular jobs concerned.

Article 3(e). Vocational training and guidance. The Committee requests the Government to provide information on the measures taken or envisaged to ensure the application of the Convention in vocational guidance, vocational training and place services under the direction of a national authority.

Article 4. Measures affecting individuals suspected of activities prejudicial to state security. The Committee notes the Government’s indication that the protection of persons suspected or engaged in activities prejudicial to the security of the State is provided for in section 3 of the Human Rights Commission Act 2009. However, this provision only sets out the general purpose of the Human Rights Commission. The Committee, therefore, requests the Government to provide in its report specific information on how workers suspected of, or engaged in, activities prejudicial to the security of the State are afforded appellate recourse in accordance with the Convention.

Article 5(2). Special measures of assistance. The Committee notes that section 38 of the Civil Service Act 2011, grants “special consideration” for former Sudan’s People Liberation Movement (SPLM)/Sudan’s People Liberation Army (SPLA) personnel wishing to join the Civil Service but lacking formal qualifications and job experience. Section 38, in particular requires the Ministry of Labour to develop and implement as a matter of urgency a policy for the “particular circumstances” of this group so that they are provided equal opportunities for employment. The Committee asks the Government to provide information on the practical application of this provision, and to indicate to what extent employers’ and workers’ organizations have been consulted so as to determine whether former SPLM/SPLA are a category requiring the special measures, in accordance with Article 5(2) of the Convention.

Practical application. In view of the on-going process of legislative reforms in the context of the peace process, the Committee requests the Government to provide full updated information on each of the provisions of the Convention and on each question set out in the report form. In doing so, the Committee also asks the Government to consider the requests for information in this direct request, in particular, any amendments to the draft Labour Bill 2012, before its adoption as well as the Civil Service Act, and other relevant legislation. The Committee further requests information on the monitoring activities carried out by the competent authorities relating to the application of the Convention, including details of their findings, and on any other initiatives taken by them with a view to promoting the application of the Convention. Finally, the Committee requests the Government to provide information giving a general appreciation of the manner in which the Convention is applied, including copies of any relevant studies or surveys that have been undertaken on any of the matters referred to in this Convention.