Forced Labour Convention, 1930 (No. 29) - Namibia (RATIFICATION: 2000)
Protocol of 2014 to the Forced Labour Convention, 1930 - Namibia (RATIFICATION: 2017)

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The Committee welcomes the ratification by Namibia of the Protocol of 2014 to the Forced Labour Convention, 1930. Noting that the first report of the Government has not been received, the Committee requests the Government to provide detailed information on its application, in accordance with the report form adopted by the Governing Body.

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. 1. Institutional framework. The Committee notes the Government’s indication, in its report, that the National Human Rights Action Plan 2015–19, which included specific measures regarding trafficking in persons, was not formally reviewed nor renewed at the end of its operating timeframe. The Committee notes that a National Labour Migration Policy, elaborated in collaboration with the ILO and the International Organization for Migration (IOM), was launched in June 2020 with the objective to ensure the development and implementation of a sound labour migration system while addressing irregular migration and trafficking in persons. To that end, the Labour Migration Policy Implementation Plan 2020–21/2024–25 provides for the improvement of the cross-border migration management system and the extension of a rights-based protection to victims of trafficking in persons. The Committee notes that a draft national plan of action on trafficking in persons for 2022–26 was elaborated, in collaboration with the United Nations Office on Drugs and Crime (UNDOC) and the IOM, and validated in November 2021, but has not been formally approved yet. It further notes that, in its 2019 report under the national-level review of implementation of the Beijing Declaration and Platform for Action, 1995 (Beijing +25 national report), the Government indicates that a High–Level Inter-Ministerial Committee, chaired by the Deputy Prime Minister and Minister of International Relations and Cooperation, has been established to coordinate issues related to trafficking in persons in the country. Recalling the importance of adopting a coordinated and systematic approach to combat trafficking, the Committee requests the Government to provide information on the progress made in the adoption of a national plan of action on trafficking in persons as well as on the activities carried out by the Inter-Ministerial Committee on trafficking in persons. It further requests the Government to provide information on the results achieved in addressing trafficking in persons through the measures taken under the National Labour Migration Policy and its implementation plan.

2. Identification and protection of victims. The Committee welcomes the adoption of the National Referral Mechanism (NRM) and Standards Operating Procedures (SOPs) for the identification, protection, referral and safe return of victims of trafficking in persons that were launched in March 2019. It notes that the NRM and SOPs are coordinated and implemented by a National Coordinator, namely the Ministry of Gender Equality, Poverty Eradication and Child Welfare (MGEPECW), through the Inter-Ministerial Committee and the National Coordinating Body (consisting of Government and non-governmental actors). The NRM and SOPs provide for their regular assessments with proposals for concrete recommendations that should be implemented to improve their performance. The Committee further notes that a pocket manual on trafficking in persons for police and immigration officers was developed, with the support of IOM and UNICEF, in order to enhance the identification and protection of victims of trafficking. The Government adds that overall protection efforts were maintained for victims of trafficking and shelter, psychosocial services, medical care and other basic needs were provided, in collaboration with NGOs. The Committee requests the Government to provide information on the number of victims of trafficking, for both labour and sexual exploitation, identified, indicating how many of them have benefited from the protection and assistance measuresprovided for underthe National Referral Mechanism and Standards Operating Procedures for the identification, protection, referral and safe return of victims of trafficking in persons, as well as Chapter 3 of the Combating of Trafficking in Persons Act No. 1 of 2018. Please also indicate any difficulties identified, and the recommendations implemented as a follow-up.

3. Prosecution and application of sanctions. The Committee notes the Government’s indication that, from April 2021 to March 2022, 18 cases of trafficking were investigated involving 25 victims. It also indicates that, in recent years, 4 individuals were prosecuted for trafficking in persons and 32 individuals are currently being prosecuted for trafficking in persons (22 for labour exploitation and 10 for sexual exploitation). The Committee however observes that, no information is provided on the number of convictions handed down or on the specific penalties applied to perpetrators. In that regard, it recalls that when the sanction for trafficking in persons can consist only of a fine, as provided for under section 3 of the Combating of Trafficking in Persons Act No. 1 of 2018 which establishes sanctions of imprisonment or a fine, it does not constitute an effective sanction in light of the seriousness of the violation and the fact that the sanctions need to be dissuasive. The Committee notes that, in its concluding observations, the United Nations (UN) Committee on the Elimination of Discrimination against Women expressed specific concern about underreporting and low prosecution rates in cases of trafficking in persons (CEDAW/C/NAM/CO/6, 12 July 2022). The Committee requests the Government to provide information on the measures taken to strengthen the capacity of law enforcement officers and prosecutors to address trafficking in persons cases, conduct effective investigations and prosecute perpetrators. Recalling the seriousness of the offence of trafficking in persons and the importance of sufficiently dissuasive penalties, the Committee further requests the Government to provide information on the number of investigations, prosecutions and convictions related to trafficking in persons handed down, while indicating the specific penalties applied to perpetrators.

Article 2(2)(c). Work imposed as a consequence of a conviction in a court of law. Sentences of community work. The Committee notes the Government’s indication that the Namibia Correctional Service (NCS) is responsible for supervising and ensuring that offenders sentenced by court with Community Service Orders (CSO), as envisaged in section 297(1)(a) of the Criminal Procedure Act No. 51 of 1977, comply with the conditions. The Government indicates that institutions authorized to take offenders under CSO are government offices, police stations, various courts, primary and secondary schools, hospitals, churches and old age homes. The types of work performed in that context include cleaning and maintenance work in public buildings; special services for old age homes, orphanages and hospitals; and rendering professional services to the community such as teachers, doctors, social workers and psychologists. The Committee observes, from the NCS brochure on CSOs forwarded by the Government, that: (1) an offender sentenced with CSO has an obligation to perform a number of hours of unpaid work for the benefit of the community; and (2) community service can also be performed at non-profitable parastatals, non-governmental organizations, agencies and entities on the condition that the offender performs unpaid public work to the benefit of the public at such organization or agency and the nature of work is determined by the Court. It further notes that, in February 2022, the NCS indicated that CSO are rolled out in 34 out of the 43 courts, representing a 79 per cent progress in accordance with the NCS strategic plan, and will be implemented in new districts. The Committee requests the Government to continue to provide information on the number of persons convicted to sentences of community work, the types of work imposed on such persons and the list of entities authorized to benefit from community work. Please also indicate the measures taken to continue to ensure that such entities are non-profit making and the work undertaken is genuinely in the general interest.

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Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. In its previous comments, the Committee noted that section 15 of the Prevention of Organised Crime Act of 2004 criminalizes cross-border and internal trafficking in persons for both labour and sexual exploitation and establishes sanctions of imprisonment or a fine. It noted the Government’s indication that a Bill on Combating Trafficking in Persons had been drafted. The Committee therefore encouraged the Government to pursue its efforts with a view to the adoption of the draft Combating Trafficking in Persons Act, and hoped that the question of really adequate sanctions would be examined in this framework in order to ensure that trafficking in persons is punishable with penalties of imprisonment that constitute an effective deterrent, not allowing for the mere imposition of fines.

The Committee takes note of the Government’s information, in its report, indicating that the Combating of Trafficking in Persons Act No. 1 was passed in April 2018. It notes with interest that this Act prohibits trafficking in persons and related offences, such as facilitating trafficking in persons or using the services of victims of trafficking, and provides for the protection of and assistance to victims of trafficking. However, the Committee notes that pursuant to sections 3 to 9 of the Act, offenders are liable to a fine not exceeding 1 million Namibian dollars (NAD) (NAD2.5 million in the case of a second or subsequent conviction), to imprisonment for a period not exceeding 30 years (50 years in the case of a second or subsequent conviction), or to both. Referring to paragraph 319 of the General Survey of 2012 on the fundamental Conventions, the Committee recalls that, when the sanction for imposition of forced labour consists only of a fine or a very short prison sentence, it does not constitute an effective sanction in light of the seriousness of the violation and the fact that the sanctions need to be dissuasive.

The Committee also notes the Government’s indication that seven cases are before courts for offences related to trafficking in persons. The Government indicates that it undertook an educational campaign within the communities to sensitize them on how to identify trafficking in persons and on how to proceed in such cases. The Committee observes that, according to the Statistical Report on Trafficking in Persons in the Southern African Development Community (SADC) Region 2014–16, finalized in December 2017, data from the Namibian Police Force (NAMPOL) indicate that between 2010 and 2017, 82 victims of trafficking in persons were identified in the country, 31 cases were registered with the NAMPOL and 35 traffickers were detected. The Report further indicates that, in 2016, eight cases were investigated, leading to two being prosecuted. The Report underlines the increased number of cases registered, investigated and prosecuted since 2010.

The Committee notes that the National Human Rights Action Plan 2015–19 includes, as part of broader objectives, interventions such as the review of the curriculum for police training to integrate how to deal with anti-human trafficking, and the allocation of the resources necessary for the implementation of the “Zero tolerance campaign against gender based violence, and human trafficking”. The Committee also notes that the Government, with support from the International Organization for Migration (IOM) and the United Nations Office for Drugs and Crime (UNODC), has trained law enforcement officers, social workers, customs officers and labour inspectors in the identification and protection of victims of trafficking as well as in the prosecution of traffickers. While noting the measures taken to combat trafficking in persons, including awareness-raising and training measures, the Committee encourages the Government to provide information on the application in practice of the provisions of the Combating of Trafficking in Persons Act No. 1, including the number of investigations and prosecutions, and to specify the type of penalties imposed. The Committee also requests the Government to provide information on the protection and assistance to victims of trafficking, and on the impact of the National Human Rights Action Plan 2015–19 in combating trafficking in persons, indicating the activities conducted and whether it has been renewed.

Article 2(2)(c). Sentences of community work. The Committee notes that, according to an article released by the Embassy of Finland in Windhoek, Namibia developed a pilot project in 2006–07, in order to reduce the number of prisoners, and to include Community Services Orders as a part of sentencing. It notes that Namibia’s Report of 2015 on the African Charter on Human and People’s Rights indicates that a Community Service Order is an order of the court instructing an offender who has committed a non-serious offence to serve his/her sentence in the community by performing unpaid work for the benefit of the public as an alternative to incarceration. The Namibian Correctional Service has to identify suitable institutions for placement of offenders on Community Services Orders. The Committee recalls that pursuant to Article 2(2)(c) of the Convention, labour exacted as community work as a consequence of a conviction in a court is not regarded as a form of forced labour only if the service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations. The Committee requests the Government to indicate the nature of the institutions for which offenders may perform community service, to provide a list of the institutions authorized to take on offenders performing such sentences, and to give examples of the types of work that may be required under this penalty.

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Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. In its previous comments, the Committee noted that section 15 of the Prevention of Organised Crime Act of 2004, criminalizes cross-border and internal trafficking in persons for both labour and sexual exploitation and establishes sanctions of imprisonment for a period not exceeding 50 years or a fine. The Committee recalled that given the seriousness of the offence of trafficking and the importance of sufficiently dissuasive penalties, legislation allowing for perpetrators of trafficking in persons to only be punished with a fine cannot be considered effective.

The Committee notes the Government’s indication that on 4 June 2015, the High Court of the Republic of Namibia handed down a landmark judgment resulting in the first criminal conviction involving a case of child trafficking, where a person was found guilty on five charges of trafficking in persons, under the Prevention of Organised Crime Act of 2004, and convicted to 13 years of imprisonment. The Government indicates that this judgment is an indication that, in practice, penalties for trafficking in persons are not limited to fines but also include imprisonment. The Committee takes note of the adoption of the Child Care and Protection Act No. 3 of 2015, which criminalizes trafficking in children for both labour and sexual exploitation and provides for sanctions of imprisonment for a period up to 20 years or a fine (section 202, 203, 205, 206, 207 and 208 of the Act), as well as protective measures in respect of victims of child trafficking (sections 213 to 218 of the Act). The Committee further notes the Government’s indication that it is currently formulating a stand-alone law on trafficking in persons which not only criminalizes the offence, but also makes provision for the protection of victims and coordination of victim support services. The Bill on Combating Trafficking in Persons has been drafted and will be submitted to the Parliament in due course. The Committee also notes the Government’s indication that a National Plan of Action on Gender-based Violence, including an anti-trafficking strategy, has been drafted as a result of an in-depth study on human trafficking which was conducted by the Namibia Institute of Public Administration and Management and is currently being implemented. The Committee also notes that in its concluding observations of July 2015, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) expressed its concern that Namibia remains a source and destination country in human beings, in particular women and girls, mainly for purposes of both forced labour and sexual exploitation (CEDAW/NAM/CO/4-5).

The Committee notes the efforts made by the Government in order to combat trafficking in persons, both in law and in practice. Recalling the seriousness of the offence of trafficking in persons and the importance of sufficiently dissuasive penalties, the Committee encourages the Government to pursue its efforts with a view to the adoption of the draft Combating Trafficking in Persons Act, and hopes that the question of really adequate sanctions would be examined in this framework in order to ensure that trafficking in persons is punishable with penalties of imprisonment that constitute an effective deterrent, not allowing for the mere imposition of fines. The Committee requests the Government to provide, with its next report, information on the progress made in this regard, as well as a copy of the Combatting Trafficking in Persons Act, once adopted. Pending the adoption of the above referred legislation, the Committee also requests the Government to continue to provide information on the number of investigations, prosecutions and convictions related to trafficking in persons, as well as the specific penalties applied to those convicted.

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Article 25 of the Convention. 1. Penalties for the exaction of forced or compulsory labour. The Committee previously requested information concerning the application of section 4(3) of the Labour Act, 2007, pursuant to which the exaction of forced labour is punishable with penalties of imprisonment for a term of up to four years and heavy fines. It also requested information on the measures taken to provide training to law enforcement officials and labour inspectors in this regard.

The Committee notes the Government’s statement that there have been no recorded cases concerning violations of section 4(3) of the Labour Act. The Government indicates that labour inspectors and law enforcement officials are provided training on a regular basis in this regard.

2. Penalties for trafficking in persons. The Committee previously noted that section 15 of the Prevention of Organized Crime Act prohibits both cross border and internal trafficking. However, it observed that pursuant to this provision, a person convicted of trafficking could possibly only be required to pay a fine. In this respect, the Committee recalled that, given the seriousness of the offence of trafficking and the importance of sufficiently dissuasive penalties, legislation allowing for perpetrators of trafficking in persons to only be punished with a fine cannot be considered effective.

The Committee notes the Government’s reference to one case reported to police related to human trafficking, where the charges were later withdrawn. The Committee requests the Government to continue to provide information on the application of section 15 of the Prevention of Organized Crime Act in practice, including the number of investigations, prosecutions and convictions related to trafficking in persons, as well as the specific penalties applied to those convicted.

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Articles 1(1) and 2(1) of the Convention. Freedom of public servants to leave their service. In its previous comments, the Committee referred to the provisions of section 24 of the Public Service Act, 1995, concerning retirement and discharge of staff members, and requested the Government to indicate whether staff members of the public service had the right to leave the service at their own request, by means of notice of a reasonable length. In this regard, the Committee noted the adoption of the Labour Act in 2007, section 30, of which provides for a possibility to terminate employment with notice. The Committee also noted that section 2(4) and (5)(c) of the Labour Act specifies that the provisions of the Labour Act prevail in case of a conflict between the Act and “any law on the employment of persons in the service of the State”. It further noted the Government’s indication that the Public Service Act would be reviewed, and requested information on measures taken in this regard.

The Committee notes the Government’s statement that the Office of the Prime Minister conducted a comparative analysis of the Public Service Act, with a view to aligning it with the Labour Act, 2007. The Government indicates that this analysis revealed that the provisions of the Public Service Act were already in line with the Labour Act, and that therefore, no amendments were required.

Article 2(2)(b) and (e). Normal civic obligations. The Committee previously noted that, under article 9(3)(e) of the Namibian Constitution, the expression “forced labour” does not include any labour reasonably required as part of reasonable and normal communal or other civic obligations. The Committee requested the Government to provide information on the effect given to this provision in practice. The Committee notes the Government’s indication that this article of the Constitution has never been applied, and that therefore, the Government is not able to provide examples of its application in practice.

Article 2(2)(c). Conviction in a court of law. The Committee previously noted that, under article 9(3)(a) of the Namibian Constitution, the expression “forced labour” does not include any labour required in consequence of a sentence or order of a court. The Committee recalled that, according to Article 2(2)(c), work can only be exacted from a person as a consequence of a conviction in a court of law, and requested the Government to clarify the meaning and the scope of an “order of a court” (as opposed to a sentence in criminal proceedings).

The Committee notes the Government’s statement that there have not been any orders of courts requiring a person to perform labour. The Committee also notes that section 81(1) of the Prisons Act of 1998 states that only prisoners detained in prison pursuant to a sentence of imprisonment shall be required to perform labour. Moreover, section 82 of the Prisons Act stipulates that a prisoner detained pending the determination of criminal proceedings or the determination of appeal proceedings shall not be required to perform general labour.

Article 25. 1. Penalties for the exaction of forced or compulsory labour. The Committee previously noted that pursuant to section 4(3) of the Labour Act, 2007, the illegal exaction of forced labour is punishable with penalties of imprisonment for a term of up to four years and heavy fines. It requested information on the application of this section in practice. The Committee notes the Government’s statement that the Office of the Labour Commissioner has not received any referrals or disputes related to section 4 of the Labour Act. The Committee requests the Government to continue to provide information on the application of section 4(3) of the Labour Act in practice, including any violations, investigations, prosecutions, convictions and penalties applied. It also requests the Government to indicate the measures taken to provide training to law enforcement officials and labour inspectors in this regard.

2. Penalties for trafficking in persons. The Committee notes that the Prevention of Organized Crime Act (No. 29 of 2004) came into force on 5 May 2009. The Committee notes with interest that section 15 of the Prevention of Organized Crime Act prohibits both cross-border and internal trafficking. However, the Committee notes that section 15 of the Act also states that a person who commits the offence of trafficking, or aids or abets trafficking, is liable to a fine not exceeding l million Namibian dollars (NAD) (approximately US$131,030) or to imprisonment for a period not exceeding 50 years. In this regard, the Committee observes that pursuant to section 15, a person convicted of trafficking could possibly only be required to pay a fine. In this respect, the Committee refers to the explanations contained in paragraph 137 of its General Survey of 2007 on the eradication of forced labour and recalls that given the seriousness of the offence of trafficking and the importance of sufficiently dissuasive penalties, legislation providing for a fine or imprisonment cannot be considered effective. The Committee therefore requests the Government to provide information on the specific penalties imposed on persons convicted under section 15 of the Prevention of Organized Crime Act in practice, as well as information on the number of investigations, prosecutions and convictions related to the trafficking of persons.

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Article 2(2)(c) of the Convention. Work of prisoners for private enterprises. The Committee previously noted that, under section 83(1) of the Prisons Act, 1998, the Commissioner may enter into a contract with any institution, person or body of persons for the employment of the labour or services of prisoners who are under a sentence of imprisonment, upon the terms and conditions which may be agreed between the parties. The Committee recalled that while Article 2(2)(c) of the Convention expressly prohibits that convicts are hired to or placed at the disposal of private individuals, companies or associations, work for private enterprises can be compatible with Article 2(2)(c) only if prisoners voluntarily enter a normal employment relationship with private employers and perform work in conditions approximating a free employment relationship. If these requirements are fulfilled, the work of prisoners for private companies does not come under the definition of forced labour in the Convention, since no compulsion is involved. In this regard, the Committee noted the Government’s indication that, in practice, prisoners volunteered for performing work and the opportunity to perform work was conditional on their good behaviour. The Committee requested the Government to provide sample copies of contracts concluded by the Commissioner with private enterprises for the employment of the labour or services of prisoners, as well as copies of any rules or regulations governing their conditions of work.

The Committee takes due note of the Prison Service Orders B submitted with the Government’s report. These Orders state that persons who wish to hire prison labour must apply in writing and that the inmate must volunteer to participate. Section 10.6.7 of the Prison Service Orders states that the officer in charge must ensure that prisoners to be hired to private enterprises have indicated their willingness and readiness to work for the enterprise, by completing Form 107D. The Committee notes with interest that Form 107D is a consent form, stating that an inmate is voluntarily engaging in the work on the conditions agreed upon by the officer in charge and the prison labour hirer, whereby inmates indicate their name, the name of their prison, the name of the person for whom they volunteer to work and the date. Form 107D requires the inmate’s signature, the signature of two witnesses and the signature of the officer-in-charge. The Committee further notes the copies of Form 107D that have been completed and signed, submitted with the Government’s report. In addition, concerning the conditions of the labour performed, the Committee notes that inmates will be paid 35 per cent of the tariff paid for his or her labour. Section 10.6.6 of the Prison Service Orders state that the officer- in-charge should ensure that the hirer of prison labour, as well as their guards, are fully advised regarding the use of prison labour, safeguarding of prisoners and precautions against injuries to prisoners. Moreover, following the performance of labour, prisoners are required to fill out a specific form (Form 107E) confirming that the work they performed was as per the agreed conditions. Lastly, the Committee notes that section 10.7 of the Prison Service Orders prohibits the use of prison labour for the erection of buildings, excavation of foundations, mixing of concrete, transportation of sand, stone and bricks to building sites, as well as in mines, in tasks at railways where injury is common, in carrying heavy objects and in sanitary services outside of the prison.

The Committee is raising other points in a request addressed directly to the Government.

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Articles 1(1) and 2(1) of the Convention. Freedom of public servants to leave their service. In its previous comments, the Committee referred to the provisions of section 24 of the Public Service Act, 1995, concerning retirement and discharge of staff members, under which staff members of the public service may be discharged from the service for various specified reasons. The Committee takes due note of the Government’s statement in the report that the Labour Act of 2007 takes precedence over all labour legislation and applies to all employers and employees, with the exception of members of the defence force and certain public services listed in section 2(2). It notes, in particular, that the provisions of the Labour Act prevail in case of a conflict between the Act and “any law on the employment of persons in the service of the State” (section 2(4) and (5)(c) of the Labour Act). The Committee further notes that section 30 of the Labour Act provides for a possibility to terminate employment with notice.

However, the Committee previously noted the Government’s statement that the Public Service Act needed to be reviewed in order to bring it into line with the Labour Act. The Committee requests the Government to indicate, in its next report, whether the Public Service Act will be amended and, if so, to provide information on the measures taken to this end.

Article 2(2)(a). Compulsory military service. The Committee notes the Government’s statement in the report that Namibia does not have conscription or compulsory military service.

Article 2(2)(b) and (e). Normal civic obligations. The Committee previously noted that, under article 9(3)(e) of the Namibian Constitution, the expression “forced labour” does not include any labour reasonably required as part of reasonable and normal communal or other civic obligations. While duly noting the Government’s statement in the report that the above constitutional provision has never been applied in practice, the Committee requests the Government to provide, in its future reports, information on the effect given to this provision, once such information becomes available.

Article 2(2)(c). 1. Conviction in a court of law. The Committee previously noted that, under article 9(3)(a) of the Namibian Constitution, the expression “forced labour” does not include any labour required in consequence of a sentence or order of a court. It asked the Government to clarify the meaning and the scope of an “order of a court” (as opposed to a sentence in criminal proceedings), under which the exaction of forced labour may be required. While noting the Government’s indication that there has been no order of a court to exact forced labour, the Committee requests the Government to provide, in its future reports, information on such court orders, if and when such information becomes available, supplying sample copies of relevant orders.

2. Work of prisoners for private enterprises. The Committee previously noted that, under section 83(1) of the Prisons Act, 1998, the Commissioner may enter into a contract with any institution, person or body of persons for the employment of the labour or services of prisoners who are under a sentence of imprisonment, upon the terms and conditions which may be agreed between the parties. Under section 81 of the Act, prison labour is compulsory for prisoners.

The Committee recalls that Article 2(2)(c) of the Convention expressly prohibits that convicts are hired to or placed at the disposal of private individuals, companies or associations. However, the Committee has considered, as explained in paragraphs 59–60 of its General Survey of 2007 on the eradication of forced labour, that work for private enterprises can be compatible with Article 2(2)(c) if prisoners voluntarily enter a normal employment relationship with private employers and perform work in conditions approximating a free employment relationship. If these requirements are fulfilled, the work of prisoners for private companies does not come under the scope of the Convention, since no compulsion is involved.

The Committee previously noted the Government’s indication that, in practice, prisoners volunteered for performing work and the opportunity to perform work was conditional on their good behaviour. Since the Government’s latest report contains no new information on this issue, the Committee reiterates its hope that the necessary measures will be taken to ensure that free and informed consent is required for the work of prisoners for private enterprises both inside and outside prison premises, so that such consent is free from the menace of any penalty and authenticated by the conditions of work approximating a free labour relationship. Please also supply sample copies of contracts concluded by the Commissioner with private enterprises for the employment of the labour or services of prisoners, as well as copies of any rules or regulations governing their conditions of work.

Article 25. Penalties for the illegal exaction of forced or compulsory labour. The Committee notes that, under section 4(3) of the Labour Act, 2007, the illegal exaction of forced labour is punishable with the penalties of imprisonment for a term of up to four years and heavy fines. Noting also the Government’s indication in its report that no legal proceedings have been instituted in terms of forced labour, the Committee hopes that the Government will provide information on the application of section 4(3) in practice, once such information becomes available, supplying sample copies of the relevant court decisions and indicating the penalties imposed.

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The Committee has noted the information provided by the Government in reply to its earlier comments. It has also noted the Criminal Procedure Act, 2004 and the Defence Act, 2002, supplied by the Government with its report.

Articles 1(1) and 2(1) of the Convention. Freedom of public servants to leave their service. The Committee has noted the provisions of section 24 of the Public Service Act, 1995, concerning retirement and discharge of staff members. It has noted, in particular, that any staff member of the public service may be discharged from the service for various reasons, such as continued ill-health, abolition of the post or reduction or reorganization of the office, promotion of the efficiency or economy of the office, unfitness for duty, misconduct, inefficiency, etc. The Committee requests the Government to indicate, in its next report, whether staff members of the public service have the right to leave the service at their own request, e.g. by means of notice of reasonable length, and supply copies of the relevant provisions. Having also noted the Government’s statement in its report on the application of Convention No. 105 that the Public Service Act needs to be reviewed in order to bring it into line with the Labour Act, the Committee hopes that, on the occasion of the revision, measures will be taken to insert, into the revised text, a provision authorizing public servants to leave their service by means of notice of reasonable length, and that the Government will provide information on the progress made in this regard. 

Article 2(2)(a) of the Convention. Compulsory military service. The Committee notes that, under section 5(2)(a)(vi) of the Defence Act, 2002, every person serving in the defence forces may be employed on such other service as may be determined by the President. The Committee requests the Government to clarify this provision, indicating the kinds of such service, as distinct from the service in defence of Namibia and other services listed in section 5(2)(a)(i–v) of the Act. Please indicate what guarantees are provided to ensure that services exacted from persons serving in the defence force under compulsory military service laws are used for purely military ends. Please also supply copies of provisions governing alternative (non-military) service in the case of persons who have conscientious objections to serving in the defence force, to which reference is made in article 9(3)(c) of the Constitution of the Republic of Namibia.

Article 2(2)(b) and (e). Normal civic obligations. The Committee previously noted that, under article 9(3)(e) of the Namibian Constitution, the expression “forced labour” does not include any labour reasonably required as part of reasonable and normal communal or other civic obligations. Please describe such “normal communal and other civic obligations” and supply copies of relevant provisions.

Article 2(2)(c). 1. Conviction in a court of law. The Committee previously noted that, under article 9(3)(a) of the Namibian Constitution, the expression “forced labour” does not include any labour required in consequence of a sentence or order of a court. The Committee recalled that, according to Article 2(2)(c) of the Convention, work can only be exacted from a person as a consequence of a conviction in a court of law. Referring to the explanations in paragraphs 51–52 of its General Survey of 2007 on the eradication of forced labour, the Committee again requests the Government to clarify the meaning and the scope of an “order of a court” (as opposed to a sentence in criminal proceedings), under which the exaction of forced labour may be required, supplying sample copies of relevant orders, and to provide information on measures taken or envisaged to ensure the observance of the Convention on this point.

2. Work of prisoners for private enterprises. The Committee notes that section 81 of the Prisons Act, 1998, provides for the obligation of prisoners to perform labour. It also notes that, under section 83(1) of the Act, the Commissioner may enter into a contract with any institution, person or body of persons for the employment of the labour or services of prisoners who are under a sentence of imprisonment, upon such terms and conditions as may be agreed upon between such parties.

The Committee recalls in this connection that Article 2(2)(c) of the Convention expressly prohibits that convicts are hired to or placed at the disposal of private individuals, companies or associations, in a sense that the exception from the scope of the Convention provided for in this Article for compulsory prison labour does not extend to work of prisoners for private employers. However, the Committee has considered, as explained in paragraphs 59–60 of its General Survey of 2007 on the eradication of forced labour, that work for private enterprises can be compatible with Article 2(2)(c) if prisoners voluntarily enter a normal employment relationship with private employers and perform work in conditions approximating a free employment relationship. This arrangement necessarily requires the formal consent of the person concerned and, in the light of the circumstances of the consent, i.e. the basic obligation to perform prison labour, and other restrictions on the prisoner’s freedom to take up normal employment, there must be further guarantees and safeguards covering the essential elements of a labour relationship. In such a situation, work of prisoners for private companies does not come under the scope of the Convention, since no compulsion is involved.

The Committee has considered, in paragraphs 114–122 of its 2007 General Survey referred to above, that the most reliable indicator of the voluntariness of labour is the work performed under conditions approximating a free labour relationship, which include wage levels (leaving room for deductions and attachments), social security and occupational safety and health. In addition, there may also be other factors that can be regarded as objective and measurable advantages which the prisoner gains from the actual performance of the work and which could be considered in determining whether consent was freely given and informed (such as the learning of new skills which could be deployed by prisoners when released; the offer of continuing work of the same type upon their release; or the opportunity to work cooperatively in a controlled environment enabling them to develop team skills).

While having noted the Government’s indication in the report that, in practice, prisoners volunteer for performing work and the opportunity to perform work is conditional on their good behaviour, the Committee hopes that the necessary measures will be taken to ensure that free and informed consent is required for the work of prisoners for private enterprises both inside and outside prison premises, so that such consent is free from the menace of any penalty and authenticated by the conditions of work approximating a free labour relationship, as well as by other objective and measurable factors referred to above. Please also supply sample copies of contracts concluded by the Commissioner with private enterprises for the employment of the labour or services of prisoners, as well as copies of any rules or regulations governing their conditions of work.

Article 25. Penalties for the illegal exaction of forced or compulsory labour. The Committee previously noted the provisions of section 4(3) of the Labour Act, 2004, punishing the illegal exaction of forced labour with the penalties of imprisonment and fines, and requested information on any legal proceedings which have been instituted as a consequence of the application of this section in practice. The Committee has noted the Government’s indication in its 2006 report that the Labour Act, 2004, will be replaced with the Labour Bill, 2006, and the penalties provided for in section 4(3) will be increased. The Government also indicates that, pending the adoption of the Bill, the Labour Act, 1992, remains in force. The Committee previously noted the provisions of section 108 of the Labour Act, 1992, punishing the illegal exaction of forced or compulsory labour with the penalties which may be imposed by law for abduction. Please describe such penalties and communicate copies of relevant texts. Noting also the Government’s indication in its 2006 report that no legal proceeding have been instituted in terms of forced labour, the Committee requests the Government to continue to provide information on the application in practice of section 108 of the Labour Act, 1992, and section 4(3) of the new Labour Act, as soon as it has been adopted, indicating the penalties imposed.

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The Committee notes that no report has been received from the Government. 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 following matters raised in its previous direct request:

The Committee requests the Government to supply, with its next report, copies of the updated and consolidated text of the Criminal Procedure Act; laws and regulations governing the execution of criminal sentences; the Defence Force Act and other acts governing disciplined forces, as well as additional information on the following points.

Article 2(2)(a) of the Convention. Please indicate what guarantees are provided to ensure that services exacted from members of the defence forces are used for purely military ends. Please also supply copies of provisions governing alternative (non-military) service in the case of persons who have conscientious objections to serving as members of the defence force, to which reference is made in article 9(3)(c) of the Constitution of the Republic of Namibia. Please indicate any provisions applicable to military officers and other career members of disciplined forces, as regards their right to leave the service, in time of peace, at their own request, either at certain reasonable intervals or by means of notice of reasonable length.

Article 2(2)(c). 1. The Committee has noted from article 9(3)(a) of the Namibian Constitution that the expression "forced labour" does not include any labour required in consequence of a sentence or order of a court. The Committee recalls that, according to Article 2(2)(c), work can only be exacted from a person as a consequence of a conviction in a court of law. It refers to the explanations in paragraph 94 of its General Survey of 1979 on the abolition of forced labour, in which it pointed out that this provision aims at ensuring that penal labour will not be imposed unless the guarantees laid down in the general principles of law recognized by the community of nations are observed, such as the presumption of innocence, equality before the law, regularity and impartiality of proceedings, independence and impartiality of courts, guarantees necessary for defence, clear definition of the offence and non-retroactivity of penal law. The Committee requests the Government to clarify the meaning and the scope of an "order of a court" (as opposed to a sentence in criminal proceedings), under which the exaction of forced labour may be required, supplying sample copies of relevant orders, and to provide information on measures taken or envisaged to ensure the observance of the Convention on this point.

2. Please indicate what guarantees are provided to ensure that convicted persons are not hired to or placed at the disposal of private individuals, companies or associations. Please also provide information on provisions governing the work of convicted persons and supply copies of relevant texts.

Article 2(2)(b) and (e). The Committee has noted from article 9(3)(e) of the Namibian Constitution that the expression "forced labour" does not include any labour reasonably required as part of reasonable and normal communal or other civic obligations. Please describe such "normal communal and other civic obligations" and supply copies of relevant provisions.

Article 25. The Committee has noted the provisions of section 4(3) of the Labour Act, 2004, punishing the illegal exaction of forced labour with the penalties of imprisonment and fines. Please provide information on any legal proceedings which have been instituted as a consequence of the application in practice of this section of the Labour Act and on any penalties imposed, supplying copies of relevant court decisions.

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The Committee has noted with interest the information provided by the Government in its first and second reports on the application of the Convention. It requests the Government to supply, with its next report, copies of the updated and consolidated text of the Criminal Procedure Act; laws and regulations governing the execution of criminal sentences; the Defence Force Act and other acts governing disciplined forces, as well as additional information on the following points.

Article 2(2)(a) of the Convention. Please indicate what guarantees are provided to ensure that services exacted from members of the defence forces are used for purely military ends. Please also supply copies of provisions governing alternative (non-military) service in the case of persons who have conscientious objections to serving as members of the defence force, to which reference is made in article 9(3)(c) of the Constitution of the Republic of Namibia. Please indicate any provisions applicable to military officers and other career members of disciplined forces, as regards their right to leave the service, in time of peace, at their own request, either at certain reasonable intervals or by means of notice of reasonable length.

Article 2(2)(c). 1. The Committee has noted from article 9(3)(a) of the Namibian Constitution that the expression "forced labour" does not include any labour required in consequence of a sentence or order of a court. The Committee recalls that, according to Article 2(2)(c), work can only be exacted from a person as a consequence of a conviction in a court of law. It refers to the explanations in paragraph 94 of its General Survey of 1979 on the abolition of forced labour, in which it pointed out that this provision aims at ensuring that penal labour will not be imposed unless the guarantees laid down in the general principles of law recognized by the community of nations are observed, such as the presumption of innocence, equality before the law, regularity and impartiality of proceedings, independence and impartiality of courts, guarantees necessary for defence, clear definition of the offence and non-retroactivity of penal law. The Committee requests the Government to clarify the meaning and the scope of an "order of a court" (as opposed to a sentence in criminal proceedings), under which the exaction of forced labour may be required, supplying sample copies of relevant orders, and to provide information on measures taken or envisaged to ensure the observance of the Convention on this point.

2. Please indicate what guarantees are provided to ensure that convicted persons are not hired to or placed at the disposal of private individuals, companies or associations. Please also provide information on provisions governing the work of convicted persons and supply copies of relevant texts.

Article 2(2)(b) and (e). The Committee has noted from article 9(3)(e) of the Namibian Constitution that the expression "forced labour" does not include any labour reasonably required as part of reasonable and normal communal or other civic obligations. Please describe such "normal communal and other civic obligations" and supply copies of relevant provisions.

Article 25. The Committee has noted the provisions of section 108 of the Labour Act, 1992, punishing the illegal exaction of forced or compulsory labour with the penalties which may be imposed by law for abduction. Please describe such penalties and communicate copies of relevant texts. Please also provide information on any legal proceedings which have been instituted as a consequence of the application in practice of this section of the Labour Act and on any penalties imposed, supplying copies of relevant court decisions.