Abolition of Forced Labour Convention, 1957 (No. 105) - Namibia (RATIFICATION: 2000)

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Article 1(c) of the Convention. Sanctions involving compulsory labour as disciplinary measures applicable to seafarers. The Committee recalls that, pursuant to section 313(2) of the Merchant Shipping Act No. 57 of 1951, penalties of imprisonment (involving, by virtue of section 95 of the Correctional Service Act No. 9 of 2012 an obligation to perform labour) may be imposed on seafarers guilty of: (1) continued wilful disobedience to lawful commands or continued wilful neglect of duty (section 174(2)(c)); (2) combination with any of the crew to disobey lawful commands, neglect duty, impede the navigation of the ship or retard the progress of the voyage (section 174(2)(d)); and (3) preventing, hindering or retarding the loading, unloading or departure of the ship (section 174(2)(f)). Sections 321 and 322 of the Merchant Shipping Act further provide for the forcible conveyance of seafarers on board ship, for seafarers sentenced to imprisonment for the offence of desertion (section 175) or absence without leave (section 176) or other breach of discipline.

The Committee notes the Government’s indication, in its report, that the process of repealing the Merchant Shipping Act is still on going. The Government adds that a copy of both the Namibia Maritime Authority Bill and the Merchant Shipping Bill will be forwarded to the Office once they have been passed into law. The Committee notes the lack of progress made in that regard since the beginning of this revision process started in 2012. The Committee wishes to recall that Article 1(c) of the Convention expressly prohibits the use of any form of forced or compulsory labour as a means of labour discipline. It further recalls that provisions under which penalties of imprisonment (involving an obligation to perform labour) may be imposed for desertion, absence without leave or disobedience, are incompatible with the Convention. Only sanctions relating to acts that are likely to endanger the safety of the ship, or the life or health of persons (such as provided for in section 174(1) of the Merchant Shipping Act) are excluded from the Convention (see 2012 General Survey on the fundamental Conventions, paragraphs 309–312). The Committee requests the Government to take the necessary measures, including in the context of the revision of the Merchant Shipping Act, to ensure that, where the ship or the life or health of persons are not endangered, no penalties of imprisonment involving compulsory labour or forcible conveyance of seafarers on board ship may be imposed for breaches of labour discipline such as desertion, absence without leave, disobedience and neglect of duty, including for the offences regulated under sections 174(2)(c), (d) and (f); 175 and 176 of the Merchant Shipping Act. It asks the Government to provide a copy of the revised Merchant Shipping Act, once adopted.

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Article 1(c) of the Convention. Sanctions involving compulsory labour as disciplinary measures applicable to seafarers. The Committee previously noted that sections 174(2)(b), (c) and (d), 175(1) and (2), and 176(1) and (2) of the Merchant Shipping Act No. 57 of 1951, read in conjunction with section 313 on penalties, provide that penalties of imprisonment (involving, by virtue of section 81 of the Prisons Act, 1998, an obligation to perform labour) may be imposed on seafarers for breaches of discipline. The Committee also noted that sections 321 and 322 of the Merchant Shipping Act provide for the forcible conveyance of seafarers on board ship. It noted the Government’s statement that once the draft Namibia Maritime Authority Act is passed, the draft Merchant Shipping Act would be adopted without further delay thus repealing the Merchant Shipping Act No. 57 of 1951. The Committee thus requested the Government to take the necessary measures to ensure that sections 174(2)(b), (c) and (d), 175(1) and (2), and 176(1) and (2) are not punishable with penalties of imprisonment involving compulsory labour, and to ensure that sections 321 and 322 are repealed or restricted to situations where the ship or the life or health of persons are endangered.

The Committee notes the Government’s indication, in its report, that the draft Namibia Maritime Authority Act is still under consideration at Cabinet level. The Government indicates that the Merchant Shipping Bill has been submitted to the Attorney General for examination, and that it will provide a copy of the Act, once adopted.

The Committee notes that the Correctional Service Act No. 9 of 2012 has repealed and replaced the Prisons Act of 1998. It notes that under section 95 of the Correctional Service Act, penalties of imprisonment involve an obligation to perform work.

The Committee takes due note of section 313(1) as amended, which repeals sanctions involving imprisonment for offences under sections 174(2)(b), 175(1) and (2), and 176(1) and (2), related to the wilful disobedience to any lawful command or the wilful neglect of duty, desertion, and absence without leave, respectively. However, the Committee notes that sections 321 and 322 still provide for the forcible conveyance of seafarers on board ship, for seafarers sentenced to imprisonment for the offence of desertion or absence without leave or other breach of discipline. It also notes that, according to section 313(2), seafarers guilty of continued wilful disobedience to lawful commands or continued wilful neglect of duty (section 174(2)(c)), or of combination with any of the crew to disobey lawful commands, neglect duty, impede the navigation of the ship or retard the progress of the voyage (section 174(2)(d)), are still punishable with penalties of imprisonment. In this regard, the Committee recalls that Article 1(c) of the Convention expressly prohibits the use of any form of forced or compulsory labour as a means of labour discipline. The Committee further recalls that provisions under which penalties of imprisonment (involving an obligation to perform labour) may be imposed for breaches of labour discipline, such as desertion, absence without leave or disobedience, are incompatible with the Convention, as well as the forcible return of seafarers on board ship to perform their duties. Only sanctions relating to acts that are likely to endanger the safety of the ship, or the life or health of persons (such as provided for in section 174(1) of the Merchant Shipping Act), are excluded from the Convention. The Committee therefore expresses the firm hope that the Government will take the necessary measures, in the context of the revision of the Merchant Shipping Act, to ensure that the offences under sections 174(2)(c) and (d) are not punishable with penalties of imprisonment involving compulsory labour (where the ship or the life or health of persons are not endangered). Moreover, the Committee once again requests the Government to take the necessary measures to ensure that sections 321 and 322 of the Merchant Shipping Act, providing for the forcible conveyance of seafarers on board a ship, are repealed, or to restrict their application to situations where the ship or the life or health of persons are endangered. It also requests the Government to clarify whether seafarers guilty of desertion and absence without leave are liable to imprisonment, and to provide a copy of the revised Merchant Shipping Act, once adopted.

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Article 1(c) of the Convention. Sanctions involving compulsory labour as disciplinary measures applicable to seafarers. The Committee previously noted that sections 174(2)(b), (c) and (d), 175(1) and (2), and 176(1) and (2) of the Merchant Shipping Act No. 57 of 1951, read in conjunction with section 313 (on penalties), provide that penalties of imprisonment (involving, by virtue of section 81 of the Prisons Act, 1998, an obligation to perform labour) may be imposed on seafarers for breaches of discipline such as desertion, absence without leave, disobedience and neglect of duty. The Committee also noted that sections 321 and 322 of the Merchant Shipping Act also provide for the forcible conveyance of seafarers on board ship.

The Committee notes the Government’s statement that a Bill for the establishment of the Namibia Maritime Authority, which will be responsible, inter alia, for administering the provisions of any enactments on shipping, has been drafted with the assistance of the International Maritime Organization (IMO) and submitted to Cabinet for its consideration. The Government adds that once Cabinet will pronounce itself on the draft Namibia Maritime Authority Act, the draft Merchant Shipping Act will be adopted without further delay thus repealing the Merchant Shipping Act No. 57 of 1951. Noting the information provided by the Government, the Committee recalls that Article 1(c) of the Convention expressly prohibits the use of any form of forced or compulsory labour as a means of labour discipline. The Committee further recalls that provisions under which penalties of imprisonment (involving an obligation to perform labour) may be imposed for desertion, absence without leave or disobedience, are incompatible with the Convention. Only sanctions relating to acts that are likely to endanger the safety of the ship, or the life or health of persons (such as provided for in section 174(1) of the Merchant Shipping Act) are excluded from the Convention. The Committee therefore requests the Government to take the necessary measures, in the context of the revision of the Merchant Shipping Act, to ensure that the following offences are not punishable with penalties of imprisonment involving compulsory labour (where the ship or the life or health of persons are not endangered): wilfully disobeying any lawful command or neglecting duty (section 174(2)(b) and (c)); combining with any of the crew to disobey lawful commands, neglect duty, impede the navigation of the ship or retard the progress of the voyage (section 174(2)(d)); preventing, hindering or retarding the loading, unloading or departure of the ship (section 174(2)(g)); desertion (section 175(1) and (2)); and absence without leave (section 176(1) and (2)). Moreover, the Committee requests the Government to take the necessary measures to ensure that sections 321 and 322 of the Merchant Shipping Act (providing for the forcible conveyance of seafarers on board a ship) are repealed, or to restrict their application to situations where the ship or the life or health of persons are endangered. The Committee requests the Government to provide information in its next report on the progress made in this regard, and to provide a copy of the revised Merchant Shipping Act, once adopted.

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Article 1(c) of the Convention. Disciplinary measures applicable to seafarers. The Committee previously noted that sections 174(2)(b), (c) and (d), 175(1) and (2), and 176(1) and (2) of the Merchant Shipping Act, read in conjunction with section 313 (on penalties), provide that penalties of imprisonment (involving, by virtue of section 81 of the Prisons Act, 1998, an obligation to perform labour) may be imposed for breaches of discipline such as desertion, absence without leave, disobedience and neglect of duty. The Committee also noted that sections 321 and 322 of the Merchant Shipping Act also provide for the forcible conveyance of seafarers on board ship. The Committee noted that although sections 2(4) and 2(5) of the Labour Act of 2007 state that the provisions of the Labour Act shall apply in cases of conflict with the Merchant Shipping Act, the Labour Act did not contain provisions concerning labour discipline in merchant shipping, and consequently the abovementioned provisions of the Merchant Shipping Act remain applicable. However, the Committee noted the Government’s indication that it was in the process of developing a draft for a revised Merchant Shipping Act.

The Committee notes the Government’s statement that a draft revised Merchant Shipping Act has been produced. The Government indicates that this draft will now be presented to the Minister of Works and Transportation, and subsequently to Cabinet. In this regard, the Committee recalls that Article 1(c) of the Convention expressly prohibits the use of any form of forced or compulsory labour as a means of labour discipline. The Committee further recalls that provisions under which penalties of imprisonment (involving an obligation to perform labour) may be imposed for desertion, absence without leave or disobedience, are incompatible with the Convention. Only sanctions relating to acts that are likely to endanger the safety of the ship, or the life or health of persons (such as provided for in section 174(1) of the Merchant Shipping Act) are excluded from the Convention. The Committee therefore requests the Government to take the necessary measures, in the context of the revision of the Merchant Shipping Act, to ensure that the following offences are not punishable with penalties of imprisonment involving compulsory labour (where the ship or the life or health of persons are not endangered): wilfully disobeying any lawful command or neglecting duty (section 174(2)(b) and (c)); combining with any of the crew to disobey lawful commands, neglect duty, impede the navigation of the ship or retard the progress of the voyage (section 174(2)(d)); preventing, hindering or retarding the loading, unloading or departure of the ship (section 174(2)(g)); desertion (section 175(1) and (2)); and absence without leave (section 176(1) and (2)). Moreover, the Committee requests the Government to take the necessary measures to ensure that sections 321 and 322 of the Merchant Shipping Act (providing for the forcible conveyance of seafarers on board a ship) are repealed, or to restrict their application to situations where the ship or the life or health of persons are endangered. The Committee requests the Government to provide information in its next report on the progress made in this regard, and to provide a copy of the revised Merchant Shipping Act, once adopted.

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Article 1(c) of the Convention. Disciplinary measures applicable to seafarers. The Committee previously noted that sections 174(2)(b), (c) and (d), 175(1) and (2), and 176(1) and (2) of the Merchant Shipping Act, read in conjunction with section 313 (on penalties), provide that penalties of imprisonment (involving, by virtue of section 81 of the Prisons Act, 1998, an obligation to perform labour) may be imposed for breaches of discipline such as desertion, absence without leave, disobedience and neglect of duty. The Committee also noted that sections 321 and 322 of the Merchant Shipping Act also provide for the forcible conveyance of seafarers on board ship. The Committee noted that although sections 2(4) and 2(5) of the Labour Act of 2007 state that the provisions of the Labour Act shall apply in cases of conflict with the Merchant Shipping Act, the Labour Act did not contain provisions concerning labour discipline in merchant shipping, and consequently the abovementioned provisions of the Merchant Shipping Act remain applicable. The Committee expressed the hope that measures would be taken to amend the Merchant Shipping Act in order to bring the legislation into conformity with the Convention.

The Committee notes the Government’s statement that it is in the process of repealing the Merchant Shipping Act, 1951 (No. 57), with the assistance of a consultant from the International Maritime Organization. The Government indicates that a stakeholders’ workshop is planned for 2012, to discuss a new draft of the revised version of the Act.

In this regard, the Committee recalls that Article 1(c) of the Convention expressly prohibits the use of any form of forced or compulsory labour as a means of labour discipline. The Committee further recalls that provisions under which penalties of imprisonment (involving an obligation to perform labour) may be imposed for desertion, absence without leave or disobedience, are incompatible with the Convention. Only sanctions relating to acts that are likely to endanger the safety of the ship, or the life or health of persons (such as provided for in section 174(1) of the Merchant Shipping Act) are excluded from the Convention. The Committee therefore requests the Government to take the necessary measures, in the context of the revision of the Merchant Shipping Act, to ensure that the following offences are not punishable with penalties of imprisonment involving compulsory labour (where the ship or the life or health of persons are not endangered): wilfully disobeying any lawful command or neglecting duty (section 174(2)(b) and (c)); combining with any of the crew to disobey lawful commands, neglect duty, impede the navigation of the ship or retard the progress of the voyage (section 174(2)(d)); preventing, hindering or retarding the loading, unloading or departure of the ship (section 174(2)(g)); desertion (section 175(1) and (2)); and absence without leave (section 176(1) and (2)). Moreover, the Committee requests the Government to take the necessary measures to ensure that sections 321 and 322 of the Merchant Shipping Act (providing for the forcible conveyance of seafarers on board a ship) are repealed, or to restrict their application to situations where the ship or the life or health of persons are endangered. The Committee requests the Government to provide information in its next report on the progress made in this regard, and to provide a copy of the revised Merchant Shipping Act, once adopted.

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Communication of texts. The Committee notes the Electoral Act, 1992, supplied by the Government with its report. It again requests the Government to supply with its next report copies of the laws governing the press and other media, public assemblies, meetings and demonstrations, as well as political parties, which the Government indicated were attached to the report, but which have not been received in the ILO.

Article 1(c) of the Convention. Disciplinary measures applicable to seafarers. The Committee previously noted the provisions of sections 174(2)(b), (c) and (d); 175(1) and (2); and 176(1) and (2) of the Merchant Shipping Act, read in conjunction with section 313 of the same Act, under which penalties of imprisonment (involving, by virtue of section 81 of the Prisons Act, 1998, an obligation to perform labour) may be imposed for breaches of discipline such as desertion, absence without leave, disobedience and neglect of duty. Sections 321 and 322 of the same Act provide for the forcible conveyance of seafarers on board ship. The Committee recalled that Article 1(c) expressly prohibits the use of any form of forced or compulsory labour as a means of labour discipline. It requested the Government to provide information on the measures taken with a view to amending the above provisions in order to bring the legislation into conformity with the Convention.

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). As regards section 2(4) of the Labour Act, to which reference has been made in the report, the Committee notes that this section relates to a conflict between the provisions of the Labour Act and other laws listed in section 2(5), including the Merchant Shipping Act. The Committee observes, however, that the Labour Act contains no provisions concerning labour discipline in merchant shipping, and consequently the provisions of the Merchant Shipping Act referred to above remain applicable.

The Committee therefore reiterates its hope that the necessary measures will be taken with a view to amending the provisions of the Merchant Shipping Act, either by repealing sanctions involving compulsory labour or by restricting their application to situations where the ship or the life or health of persons are endangered (as is the case, for example, in section 174(1) of the same Act), in order to bring the legislation into conformity with the Convention. The Committee requests the Government to provide information in its next report on the progress made in this regard.

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Communication of texts. The Committee has noted the Criminal Procedure Act, 2004, the Public Service Act, 1995 and the Merchant Shipping Act, 1951, as amended, supplied by the Government with its report. It again requests the Government to supply, with its next report, copies of the laws governing the press and other media, public assemblies, meetings and demonstrations, as well as political parties.

Article 1(c) of the Convention. Disciplinary measures applicable to seafarers. The Committee notes the provisions of sections 174(2)(b), (c) and (d); 175(1) and (2); and 176(1) and (2) of the Merchant Shipping Act, read in conjunction with section 313 of the same Act, under which penalties of imprisonment (involving, by virtue of section 81 of the Prisons Act, 1998, an obligation to perform labour) may be imposed for breaches of discipline such as desertion, absence without leave, disobedience and neglect of duty. Sections 321 and 322 of the same Act provide for the forcible conveyance of seafarers on board ship.

The Committee recalls that Article 1(c) expressly prohibits the use of any form of forced or compulsory labour as a means of labour discipline. As the Committee repeatedly pointed out, only acts which endanger the ship or the life or health of persons are excluded from the scope of the Convention (see e.g. paragraphs 179–181 of the Committee’s General Survey of 2007 on the eradication of forced labour). The Committee therefore hopes that the necessary measures will be taken with a view to amending the above provisions of the Merchant Shipping Act, either by repealing sanctions involving compulsory labour or by restricting their application to situations where the ship or the life or health of persons are endangered (as is the case e.g. in section 174(1) of the same Act). The Committee requests the Government to provide, in its next report, information on progress made in this regard.

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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 has noted the information provided by the Government in its first and second reports on the application of the Convention. It would be grateful if the Government would supply, with its next report, copies of the legislation in force in the following fields: updated and consolidated text of the Criminal Procedure Act; laws and regulations governing the execution of criminal sentences; the laws governing the press and public assemblies, meetings and demonstrations; the law governing political parties; a full text of the Public Service Act, as amended; a full text of the Merchant Shipping Act, as amended, and any other provisions governing labour discipline in merchant shipping.

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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 would be grateful if the Government would supply, with its next report, copies of the legislation in force in the following fields: updated and consolidated text of the Criminal Procedure Act; laws and regulations governing the execution of criminal sentences; the laws governing the press and public assemblies, meetings and demonstrations; the law governing political parties; a full text of the Public Service Act, as amended; a full text of the Merchant Shipping Act, as amended, and any other provisions governing labour discipline in merchant shipping.