Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Minimum Age Convention, 1973 (No. 138) - Botswana (Ratification: 1997)

Article 1 of the Convention and Part V of the report form. National policy. Application of the Convention in practice. In its previous comments, the Committee noted that the ILO–IPEC project entitled “Towards the elimination of the worst forms of child labour” (TECL Project) was being implemented in Botswana. The Committee also noted that, with assistance from ILO–IPEC, the Action Programme on the Elimination of Child Labour (APEC) had been developed. The APEC had been endorsed by the Programme Advisory Committee on Child Labour and was awaiting the necessary government approval.

The Committee notes the information available from ILO–IPEC that, in February 2008, a wide range of representatives of ministries, organized labour, business and non-governmental organizations met to approve the APEC. This meeting also included a briefing for permanent secretaries of all key ministries with responsibilities to implement the APEC. The Committee notes the information available from ILO–IPEC that the implementation of the TECL Project Phase II began in February 2009, and is due to be completed in June 2012. However, the Committee notes the information from ILO–IPEC that the implementation of the APEC in Botswana is still wanting. While a few governmental departments have developed their institutional workplans, nothing much has happened in terms of implementing the planned activities for the APEC. This information indicates that the economic recession has had a huge impact on the available funds, which will affect the implementation of the APEC. However, the Committee also notes the information from ILO–IPEC that child labour has been extensively addressed in the newly adopted Children’s Act of 2009. While noting the economic constraints faced by the Government, the Committee requests the Government to pursue its efforts to combat child labour through the effective implementation of the APEC. In this regard, the Committee requests the Government to provide information on the concrete measures taken within the framework of the APEC, and on the results achieved, in terms of the effective reduction and elimination of child labour.

Article 2(1). Scope of application. The Committee previously noted that, in accordance with Part 3, the Employment Act, 1982, applies to any person who has entered into a contract of employment for the hire of his labour. It requested the Government to provide information on the manner in which children who are not bound by a contract of employment, such as self-employed workers, benefit from the protection afforded by the Convention.

The Committee notes the Government’s indication that consultations are ongoing with a view to adopting measures to cover children engaged in all types of work, including self-employment. The Committee welcomes this measure, especially in view of the information in the report of the International Trade Union Confederation, for the World Trade Organization General Council of 4 and 6 November 2009 entitled “Internationally recognized core labour standards in Botswana, Lesotho, Namibia, South Africa and Swaziland” that many children in Botswana are reported to work in family businesses or in informal economic activities. In this regard, the Committee notes the information from the National Labour Force Survey of 2005–06 that 66 per cent of all economically active children are engaged in agriculture, and the vast majority of these children (89 per cent) work for their families. The Committee further notes the statement in the ILO–IPEC Outline Summary for the project “Contributing to the elimination of worst forms of child labour in Botswana with special emphasis on agriculture and CSEC” of March 2010 that children working in the informal economy, such as in agriculture or in the home, have less protection and support than children working in the formal economy. In this regard, the Committee reminds the Government that the Convention applies to all sectors of economic activity and covers all forms of employment or work. The Committee therefore urges the Government to pursue its efforts to ensure that the protection afforded by the Convention is accorded to all children carrying out economic activities without an employment contract, particularly children working on a self-employed basis or in the informal economy, including in agriculture, as soon as possible.

Article 2(3). Age of completion of compulsory schooling. The Committee previously noted the Government’s statement that schooling is not compulsory, though legislation to make basic education compulsory was under consideration. The Committee also noted the statement in the draft report of the Ministry of Education and Skills Development entitled “National Report on the Development of Education” (released in 2008) that an estimated 10–15 per cent of school going-age children were not in schools, including children engaged in child labour. It further noted the information in the Government’s National Report submitted to the United Nations Human Rights Council on 5 September 2008 that the Government introduced school fees in 2005 although, as of 2008, an income threshold (by which households in need of assistance are exempted from paying school fees) had been introduced (A/HRC/WG.6/3/BWA, paragraph 36). Regarding school fees, the Committee noted the statement of the United Nations Special Rapporteur on the Right to Education (in a report of 17 March 2006) that “the reintroduction of fees, coupled with the absence of the legal obligation providing for compulsory education might have disastrous effects on enrolment rates at the secondary level and the already increasing drop-out rate registered at that level” (E/CN.4/2006/45/Add.1, paragraphs 44–45).

The Committee notes the statement in the Government’s report that the Children’s Act of 2009 provides the right to free basic education, and provides penalties for denying the right to education. The Government indicates that the provisions in the Children’s Act of 2009 take precedence over other laws which may be in conflict. In this regard, the Committee notes that section 18(1) of the Children’s Act of 2009 states that “every child has a right to free basic education”. Section 18(2) states that any parent, other relative or guardian who, without reasonable excuse, denies a child the opportunity of going to school shall be guilty of an offence and shall be sentenced to a fine of not less than 5,000 Botswana pula (BWP) (approximately US$731.50), but not more than BWP10,000 (approximately US$1,463).

The Committee also notes the statistical information included in the Government’s report submitted under the Worst Forms of Child Labour Convention, 1999 (No. 182), indicating that that the number of primary school drop-outs decreased by 5.6 per cent between 2008 and 2009. However, this information also indicates that, in 2009, approximately 14.2 per cent of children aged 6–12 were not enrolled in school. Moreover, the Committee also notes the information in the Education for All Global Monitoring Report, published by UNESCO in 2010, that there were approximately 1,002,000 out-of-school children between the ages of 6 and 12 in 2007. Recalling the importance of compulsory schooling in combating child labour, the Committee requests the Government to provide information on the measures taken to ensure the introduction of compulsory schooling up to the minimum age for admission to employment or work. It also requests the Government to provide information on the measures taken to apply section 18(1) of the Children’s Act of 2009, and the impact of these measures with regard to increasing school attendance rates and decreasing school drop-out rates as well as the number of out-of-school children.

Article 3(1) and (2). Hazardous work. The Committee previously noted that, pursuant to section 108 of the Employment Act, as amended, the Commissioner may issue a notice to employers specifying the kind of work in which it is prohibited to employ a young person (defined as a person over the minimum age but under 18 years), particularly work which is harmful to the health and development of the young person, or which is dangerous, immoral or otherwise unsuitable. The Committee noted that the Commissioner had not yet determined the types of work prohibited to children under 18 years of age, but that consultations with the social partners were ongoing on this matter.

The Committee notes the Government’s statement that, with ILO assistance through the TECL Project Phase II, consultations are ongoing to determine the list of hazardous work for children. The Government indicates that the matter has been placed before the Tripartite Labour Advisory Board. In this regard, the Committee notes the information from ILO–IPEC that a draft hazardous list of occupations for children has been prepared, and has undergone an initial review by the Labour Advisory Board. The Department of Labour has circulated a cabinet memorandum to all the relevant ministries accompanied by the draft list for their endorsement. In addition, information from ILO–IPEC indicates that the list will be undergoing another review before its endorsement and subsequent presentation to the Minister for Labour to be gazetted as an official legal document. The Committee therefore urges the Government to pursue its efforts to ensure the adoption, in the near future, of the list determining the types of hazardous work prohibited to persons under 18 years of age. It requests the Government to supply a copy of this list, once it has been adopted.

Article 7(3). Determination of light work. In its previous comments, the Committee noted that, pursuant to section 105 of the Employment Act, a child who has attained the age of 14 years may be employed in light work not harmful to his health or development. Pursuant to section 105(2), a child of 14 years not attending school may be employed in such light work if employed by a member of the child’s family or if such work is of a character approved by the Commissioner, provided that the child shall be readily able to return home each evening (excluding work of a domestic nature) and provided that no child shall be required or permitted to work more than six hours a day or 30 hours a week. Pursuant to section 105(3) of the Employment Act, a child of 14 who is still attending school may, whilst on vacation from school, be employed in light work of a character approved by the Commissioner for not more than five hours a day between 6 a.m. and 4 p.m. The Government indicated that consultations with social partners were ongoing on the determination of light work activities.

The Committee notes the Government’s statement that it has not yet determined light work activities, but that it will liaise with the ILO–IPEC TECL Project Phase II to determine light work activities permitted to children. The Government states that, in practice, children perform light work such as kitchen and household help, the distribution of flyers or advertisements and child care. The Committee also notes the statement in the ILO–IPEC Outline Summary for the project “Contributing to the elimination of worst forms of child labour in Botswana with special emphasis on agriculture and CSEC” of March 2010 that light work has been difficult to regulate as light work is not adequately defined. Recalling that, by virtue of Article 7(3) of the Convention, the competent authority shall determine the activities in which employment or work may be permitted, the Committee requests the Government to strengthen its efforts to ensure that permitted types of light work activities are determined in the near future. It also requests the Government to provide a copy of the list of the types of light work permitted for children, once it is adopted.