Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Lesotho (Ratification: 1998)

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

1. Article 1 of the Convention. In its previous request, the Committee noted that article 18, paragraph 4(b) and (c), of the Constitution stipulate that in certain matters, particularly in marriage, divorce, devolution of property or those matters which fall within the scope of customary law, it was possible to derogate from the application of the principle of equality of opportunity and treatment laid down in paragraph 1 of article 18. The Committee deemed it cause for concern that the abovementioned provisions authorized the application of legislative texts and laws, including customary law, which were discriminatory and therefore incompatible with the present Convention to the extent that they had an impact on employment and occupation. It noted, for example, that in customary law and in common law women are considered to be minors and cannot therefore conclude a contract, open a bank account, obtain a loan or apply for a passport without their husband’s consent. The Committee wished to be reassured that the application of customary law did not hinder the implementation of the principle of equality of opportunity and treatment with respect to employment and occupation as regards the grounds covered by the Convention.

2. Further to the above, the Committee notes that Consultation Paper No. 1 (2000) of the Law Reform Commission proposes the adoption of a "Married Persons Equality Bill". It notes that section 3(1)(a) of the Bill repeals the common law, customary law and any other marriage rules in terms of which a husband acquires the marital power over the person and property of his wife; subsection (1)(b) immediately abolishes the marital power which any husband has over the person and property of his wife. Further, section 4(a) of the Bill provides that the effect of the marital power would be to remove the restrictions which the marital power places on the legal capacity of his wife, among others, to contract and to perform any other act which was restricted by any law due to the marital power. Further, subsection (b) abolishes the common law and customary law positions where the husband is regarded as head of the family by virtue of the marital power. Considering the possible positive impact the adoption of the Bill could have on the application of the Convention, the Committee asks the Government to indicate whether the Bill has been adopted, and if so, provide copies of the Bill, as well as any information regarding its practical impact on the promotion of equality of opportunity and treatment in regard to the employment and occupation of women. Noting, nevertheless, that the Government’s report does not include sufficient information to enable the Committee to assess the relationship between customary law and common law in practice and in what manner the Government ensures that application of customary law does not hinder the implementation of the principle of equality of opportunity and treatment with respect to employment and occupation in regard to any person because of their sex, race, colour, religion, political opinion, national extraction or social origin, the Committee hopes that such information will be included in the Government’s next report.

3. Discrimination on the basis of political opinion. The Committee notes that the Government does not reply to its previous comment in which it noted that section 13(a) of the Public Service Act, 1995, requires absolute and undivided loyalty on the part of public officers in regard to the Constitution and the Government. It also noted that section 14(1)(k), of the Act restricts considerably the right of public officers to express or demonstrate their political opinions. The Committee, therefore, reiterates its request to the Government to supply information on the manner in which this provision is applied in practice.

4. Discrimination on the basis of colour, race or national extraction. The Committee notes that the Government does not provide any information with respect to its previous comments in which it noted the Government’s statements to the United Nations committee (CERD/C/337/Add.1, paragraph 16) affirming the existence on its territory of a small minority of Basothos of Indian origin, as well as the observations of the committee (CERD/C/56/Misc.39/Rev.3, paragraph 5) to the effect that there is tension between Lesotho nationals and certain factory owners of Asian and South African origin. The Committee reiterates its request to the Government to supply information on measures taken to calm relations between these communities and promote equality in employment. The Committee would also be grateful if the Government would supply information on the ethnic composition of the population of Lesotho.

5. Article 2. In its previous direct request, the Committee pointed out that, in addition to the legal context, positive measures were needed to eliminate discrimination in practice. It recalled that articles 26 and 30 of the Constitution of Lesotho require the Government to adopt policies aimed at promoting a society based on equality and justice for all its citizens regardless of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, as well as policies aimed at securing just and favourable conditions of work and, in particular, policies directed to achieving equal opportunities for men and women in regard to employment. In this regard, the Committees notes from the attached documentation the adoption of a comprehensive employment policy aiming, among others, "to ensure that there is freedom of choice in employment and the fullest opportunity for each worker to qualify for, and to use his [or her] skills and endowments in, a job for which he [or she] is well suited, irrespective of race, colour, sex, religion, political opinion, national extraction and social origin"; and that "the basis rights and interests of workers are safeguarded and, to that end, discriminatory laws are abolished". The Committee also notes that the policy includes a number of strategies related to, among others, promoting rural employment, employment creation, skills development and equal opportunities for men and women, improving working conditions and enhancing the participation of employers and workers. The Committee requests the Government to indicate the measures taken and envisaged under the national employment policy to ensure the implementation of the constitutional provisions on equality and non-discrimination, in legislation as well as in practice, especially with respect to employment creation, working conditions, skills development of women but also of other more vulnerable groups. It also requests the Government to indicate in what other manner it envisages to eliminate effectively discrimination in employment and occupation on the basis of race, colour, sex, religion, political, opinion, national extraction and social origin.

6. The Committee notes the statistical data provided by the Government on the number of employees in the different activities of the manufacturing industry. However, as the statistics do not indicate the numbers of men and women employed in the various companies, nor the specific positions they occupy, it is impossible for the Committee to evaluate the extent to which the Convention is applied in the manufacturing industry or any other sectors of the economy. The Committee requests the Government to indicate, in its next report, the respective numbers of men and women in the various activities of the manufacturing industry, as well as to provide any other statistics enabling it to ascertain the distribution between men and women - horizontally as well as vertically - in the various categories of employment and sectors of activity. Further, noting also from the attached documentation that the Central Bureau for Statistics will conduct surveys periodically on the labour force in the formal and the informal sectors of the economy and carry out particular surveys related to the informal sector and to micro- and small-scale enterprises, with particular attention being paid to women, the Committee asks the Government to provide copies of any surveys undertaken, and hopes that the Government will be able, next time, to provide information on the participation of the various components of the working population, both quantitatively and qualitatively, and in particular the most vulnerable social groups.

7. The Committee notes that the Government’s report does not reply to a number of other points it has made in its previous direct request, which read as follows:

1. The Committee notes that in 1993 the Government instituted a Law Reform Commission with the mandate of examining the laws not compatible with the new Constitution, proposing the repeal of archaic laws and reformulating laws. It notes that the Human Rights Service of the Ministry of Justice also has the mandate of ensuring that national legislation is compatible with international instruments relating to human rights. It also notes the establishment of an Ombudsman’s Office in 1996 which may be advised of violations of fundamental rights guaranteed under the Constitution. In this regard, the Committee emphasizes the lack of provisions expressly prohibiting discrimination on the basis of the seven criteria set out in the Convention and recalling the sanctions incurred in the event of violation of this principle in the Public Service Act of 1995 (particularly in the section relating to recruitment and promotion) or in the 1984 Act on Technical and Vocational Training (particularly in regard to guidance and access to certain occupations). The Committee therefore requests the Government to supply information on the activities of these various bodies, where they are linked to the promotion and application of equality of opportunity and treatment and to indicate whether the National Human Rights Commission, charged with investigating any violation of human rights, has finally been established.

2. Article 3. The Committee notes the statement in the Government’s report that there is no discrimination in Lesotho within the meaning of the Convention, hence there is no need to adopt laws or education programmes to encourage acceptance and application of the national policy of equality of opportunity and treatment in employment. The Committee recalls that the promotion of equality of occupation and treatment does not apply to a static situation which can be addressed in a definitive manner, but to an ongoing process during which the national policy of equality must adjust to the changes it makes in society to succeed in eliminating the many distinctions, exclusions or preferences based on the criteria set forth in the Convention. The Committee therefore invites the Government to implement actively the measures set out in Article 3(a), (b), (c), (d) and (e) of the Convention, particularly in regard to education and raising of public awareness to the occurrence of discrimination in employment based on unlawful grounds.

3. The Committee requests the Government to supply information on its methods of cooperation with employers’ and workers’ organizations with a view to encouraging the acceptance and application of this Convention. It also requests copies of some of the collective agreements in force in the public and private sectors.

4. Article 4. The Committee notes the Government’s statement to the effect that there are no legislative or administrative measures governing the employment or occupation of persons suspected of, or engaged in, activities prejudicial to the security of the State. It nevertheless requests the Government to indicate what recourse is open to these persons and whether complaints of this nature have already been examined.

5. The Committee wishes to know whether there are occupations - in the public service and the private sector - which are not accessible to women (other than underground work). If so, it requests the Government to provide it with a detailed list.

The Committee hopes that the Government will make every effort to provide the requested information in its next report.