Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

Abolition of Forced Labour Convention, 1957 (No. 105) - Burkina Faso (Ratification: 1997)

The Committee notes the Government’s first reports and requests it to provide information on the following points.

1. Article 1(a) of the Convention. Freedom of opinion and expression. The Committee notes that certain sections of the Penal Code which provide for sentences of imprisonment involving, by virtue of section 86 of Order No. 642 APAS of 4 December 1950 issuing the prison regulations, the obligation to work, are liable to repress the expression of political opinions. It notes in particular sections 177 to 180 of the Penal Code which provide, among other measures, for sentences of imprisonment to punish offences against those exercising public authority. According to the provisions concerned, any offence against the honour and delicacy of certain persons exercising public authority (sections 178 and 180), or against the authority of the judicial system or its independence (section 179) constitute punishable offences. The Committee notes that sections 361 to 364 of the Penal Code provide for the punishment of slurs upon the honour and consideration of an individual, insults, calumny and slander. Section 364 provides for sentences of imprisonment for any person found guilty of committing defamation, as defined in section 361, namely "any allegation or imputation of a fact which is detrimental to the honour or consideration of individuals or entities to which the act is attributed". Under the terms of section 365, any person against whom legal action is taken for defamation shall have the opportunity to provide proof of the truth of her or his statements and thereby have such action ended.

The Committee also notes Ordinance No. 92-024 bis/PRES of 29 April 1992 issuing the Code of Information in Burkina Faso, sections 114 to 123 of which contain similar provisions. This Ordinance also contains provisions prescribing sentences of imprisonment for certain press offences, which involve, under the above provisions of the Order of 4 December 1950, the obligation to work.

The Committee notes that, under section 86 of Order No. 642 APAS of 4 December 1950 above, prison labour is compulsory for all common law convicts and for members of the armed forces convicted in military tribunals. The Committee notes that the legislation does not contain specific provisions respecting persons convicted of offences of a political nature and that under the terms of section 86 of the above Order a person found guilty of insulting behaviour, defamation or one of the press offences envisaged in the Code of Information is liable to a sentence of imprisonment involving compulsory labour.

The Committee draws the Government’s attention to the fact that these provisions of the Convention prohibit recourse to any form of forced or compulsory labour, including compulsory prison labour, as a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. With reference to paragraphs 102 to 109 of its 1979 General Survey on the abolition of forced labour, the Committee requests the Government to ensure that the above provisions of the Penal Code and the Code of Information are not interpreted in such a manner as to repress the expression of political views. It also requests it to provide information on the application in practice of the above provisions of the Penal Code and the Code of Information and to provide copies of any judicial decision handed down under these provisions.

2. Freedom of association. The Committee draws the Government’s attention to the importance for effective compliance with the Convention of the legal safeguards relating to the right of assembly, expression, demonstration and association, and the direct effect that limitations of these rights can have on the application of the Convention. Indeed, it is often through the exercise of these rights that political opposition to the established system can be expressed (see the 1979 General Survey on the abolition of forced labour, paragraph 139). In this respect, the Committee notes sections 220 and 221 of the Penal Code, which read as follows:

  Section 220: (…) The founders, directors or administrators of an association which is illegally maintained or re-established following an act of dissolution, and any person who, through occult propaganda, speeches, writings or any other means, perpetuates or endeavours to perpetuate the work of a dissolved association shall be liable to imprisonment of from three months to three years and a fine of between 75,000 and 900,000 francs.

  Section 221: Any person who for any reason does not comply with the injunctions of the competent authority relating to the recognition of an association or who imparts false information, assumes or continues to assume responsibility for the administration of foreign associations or establishments operating without authorization, shall be liable to imprisonment of from six months to three years and a fine of between 15,000 and 900,000 francs.

The same penalties shall be applicable to the leaders and participants in the activities of associations or establishments which operate without complying with the conditions set out in the act of authorization or beyond the duration set out in the latter.

The Committee notes that, under the terms of the above provisions, the maintenance or re-establishment of an association found to be illegal by the authorities, and failure to comply with injunctions relating to the recognition of an association, are punishable with penalties of imprisonment involving the obligation to work, under the terms of section 86 of Order No. 642 APAS of 4 December 1950. The Committee recalls that the penalties set out in sections 220 and 221 must not serve as a punishment for persons who hold or express certain political opinions or express their ideological opposition to the established political, social or economic system.

The Committee requests the Government to indicate the criteria upon which the authority can prohibit or recognize an association, and to provide information on the application in practice of sections 220 and 221 of the Penal Code. The Committee also requests the Government to provide copies of Act No. 10/92 issuing regulations governing freedom of association, and the Act governing political parties.

3. Freedom of assembly and demonstration. The Committee notes section 120 of the Penal Code, which prohibits the formation of unarmed gatherings on public thoroughfares such as to disturb the peace.

The Committee notes the absence of provisions in the Penal Code setting out the penalty incurred in the event of the violation of section 120 by a person participating in an unarmed gathering and it therefore requests the Government to provide information on this matter. The Committee also requests the Government to provide copies of regulations respecting public order (including Decree No. 93-389 organizing the maintenance of order in Burkina Faso), and any judicial rulings handed down under section 120 of the Penal Code.

Article 1(b). 4. Work of general interest. The Committee notes that Act No. 009/98/AN, issuing the general conditions of service of members of the national armed forces, provides that members of the forces performing their compulsory service may be assigned to work of national interest. The obligation to serve is governed by sections 33 et seq. of Act No. 009/98/AN, which provide for statutory active service of 18 months devoted to civic and military instruction, as well as work of national interest. Sections 33 and 36 of the above Act provide that:

  Section 33: Any unmarried national of Burkina Faso aged between 18 and 25 years may enrol freely or be called up to serve in the national army.

  Section 36: Statutory active service shall be performed in units of the land and air forces and the national police force. It shall be devoted to military and civic instruction and work of national interest.

The issue of compulsory work of general interest has been raised on many occasions in the context of Convention No. 29. The Committee noted that the former Act respecting recruitment provided for the possibility of imposing "work of general interest" on members of the armed forces performing their compulsory service (section 5 of Act No. 49-62/AN). The Government had stated that the provision in question had never been applied in practice and that the service envisaged under this section exclusively covered cases of emergency, in accordance with Article 2, paragraph 2(d), of Convention No. 29. Using similar terms, Act No. 009/98/AN provides for the possibility of imposing "work of national interest" on members of the armed forces in the context of their compulsory service.

The Committee draws the Government’s attention to the fact that work exacted under laws respecting compulsory military service is only excluded from the scope of the Convention when it consists of work of a purely military nature. The Committee requests the Government to take the necessary measures to ensure that the "work of national interest" envisaged in section 36 of Act No. 009/98/AN is strictly limited to cases of emergency, in accordance with the indications provided by the Government in its report on Convention No. 29.

5. National development service. The Committee also notes Decree No. 98-291/PRES/PM/DEF determining the organization and operation of the national development service, known as SND. Section 4 of the Decree provides that "any national of Burkina Faso between 18 and 30 years of age may be required for SND", section 5 sets the duration of SND at 12 months and provides that periods spent engaged in SND shall be considered as military service. The procedures for the performance of SND are governed by Decree No. 98-292/PRES/PM/DEF, which provides that SND shall be accomplished in two successive phases, namely training and production. During the first phase, those called up receive an essentially civic and patriotic training with the aim of preparing them morally and physically for tasks of socio-economic development (sections 24 and 25), and the acquisition of the rudiments of vocational training in priority sectors for development (section 28). Under section 30 of Decree No. 98-292/PRES/PM/DEF, the second phase "is the phase of SND during which those called up make their contribution to the socio-economic development of the country". The fields in which work is performed are the education, agriculture and stock-rearing sectors, as well as other sectors making use of wage earners and persons called up from the rural and informal sectors (sections 30 to 35).

The Committee draws the Government’s attention to paragraphs 38 to 42 of its 1979 General Survey on the abolition of forced labour, which indicate that "schemes involving the compulsory participation of young people (as part of their military service or instead of it) in activities directed towards the development of their country were incompatible with the Conventions on forced labour".

The Committee requests the Government to provide additional information and practical examples of the work undertaken in the context of national development service.

6. Article 1(d). Right to strike of public officials. The Committee notes that the right to strike is guaranteed in general by article 22 of the Constitution, and that it is also guaranteed for public officials by section 45 of the Act issuing the legal status applicable to posts and officials in the public service (Act No. 013/98/AN), and more particularly by Act No. 45-60/AN, issuing regulations respecting the right to strike of state officials and employees.

The Committee notes that the right to strike can be restricted for certain categories of public officials, as provided for in section 1 of Act No. 45-60/AN, which provides that certain specific conditions of service may derogate from the right to strike of public officials. Under section 6 of this Act, orders may be issued by the ministers concerned requisitioning public officials to ensure the continuation of the administration and the safety of persons and property. In this respect, the Committee recalls that the requisitioning of public officials is only possible in essential services in the strict sense of the term, that is those the interruption of which would endanger the life, personal safety or health of the whole or part of the population (paragraph 545 of the Digest of decisions and principles of the Freedom of Association Committee). The Committee requests the Government to indicate the services in which public officials may be requisitioned with a view to ensuring a minimum service in the event of strikes, and the conditions governing such requisitions. It requests the Government to provide copies of the specific conditions of service in which the right to strike of public officials is restricted, as envisaged by section 1 of Act No. 45-60/AN.

The Committee notes that persons who refuse to comply with a requisition order are liable to disciplinary sanctions (section 7 of Act No. 45-60/AN). It also notes that section 137 of Act No. 013/98/AN provides that any failing by a public official in her or his duties makes the latter liable to disciplinary measures without prejudice, where appropriate, to the penalties envisaged in the penal legislation. In this respect, the Committee requests the Government to indicate the penalties which may be applied to public officials who have refused to comply with a requisition order.