Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Forced Labour Convention, 1930 (No. 29) - Democratic Republic of the Congo (Ratification: 1960)

The Committee notes the observations made by the International Trade Union Confederation (ITUC) on the application of the Convention, which were received on 31 August 2012 and forwarded to the Government on 11 September 2012.

Articles 1(1), 2(1) and 25 of the Convention. Forced labour and sexual slavery in the context of armed conflict. In its previous observation, the Committee expressed its concern at the various reports of a number of United Nations bodies on the situation in the Democratic Republic of the Congo, which underlined the gravity of the human rights situation in the country and referred to violations committed by the state security forces and other armed groups, including cases of forced labour and sexual slavery. The Committee noted that, following its examination of this case in June 2011, the Conference Committee on the Application of Standards “noted with concern the information provided which bore witness to the gravity of the situation and the climate of violence, insecurity and the violation of human rights which prevailed in the country, especially in North Kivu. This information confirmed that cases of abduction of women and children, with a view to their use as sexual slaves and exaction of forced labour, particularly in the form of domestic work, were frequent and continued to occur. Moreover, in mines, the workers were hostages of conflicts for the exploitation of natural resources and victims of exploitation and abusive practices, some of which amounted to forced labour. The Conference Committee observed that failure to comply with the rule of law, legal insecurity, the climate of impunity and the difficulties faced by victims in gaining access to justice favoured all of these practices [...] The Conference Committee appealed to the Government to take urgent and concerted measures to bring such violations to an immediate end [...]”.

The Committee also noted that, in its observations submitted in September 2011, the Confederation of Trade Unions of Congo (CSC) confirmed the practices of abduction of women and girls and, to a lesser degree, of men and boys with a view to their being used for forced labour and sexual slavery by the armed groups. Elderly women were also being abducted for domestic work. The trade union referred to specific cases of abduction and indicated that the worst affected areas were Walikale, Rutshuru, Masisi and North Kivu.

The Committee notes that, in its observations, the ITUC confirms the persistence of cases of sexual slavery, especially in mines in the regions of North Kivu, Province Orientale, Katanga and East Kasai, perpetrated by illegal armed groups and elements of the Armed Forces of the Democratic Republic of the Congo (FARDC). The ITUC emphasizes that the persons concerned have no chance of escaping because they are guarded 24 hours a day by soldiers. The ITUC also refers to several cases of the forced enrolment of boys and young men by various armed groups, especially by the troops of Bosco Ntaganda, in the Masisi territory, or by the rebels of the M23, in particular in the province of North Kivu. The ITUC lists several attacks carried out by these groups in 2012 in various communities in this province, during which violence was systematically used to force civilians to transport arms, ammunition, booty from looting and other provisions up to the front line. The ITUC refers to similar action by the Lord’s Resistance Army (LRA) and the Democratic Forces for the Liberation of Rwanda (FDLR). These groups enter camps where displaced persons have taken refuge and threaten them by accusing them of collaborating with one or another armed group. They are then forced to transport arms or goods, to build houses or to work in the fields for the rebels or the militia. The ITUC stresses that the authors of these actions are never punished because no case has ever been brought before the courts.

The Committee deplores the lack of information from the Government on the measures taken to bring an end to these serious violations of the Convention. The Committee is even more concerned because, according to information sent by the ITUC and that available from various United Nations bodies, the east of the Democratic Republic of the Congo has been the scene of a renewed outbreak of hostilities in recent months between the regular Congolese forces and armed groups, resulting in massive human rights violations. In a press release dated 27 July 2012, the United Nations High Commissioner for Refugees (UNHCR) condemned the violence perpetrated against civilians, which included “indiscriminate and summary killings of civilians, rape and other sexual abuse, torture, arbitrary arrests, assaults, looting, extortion of food and money, destruction of property, forced labour, forced military recruitment, including children, and ethnically motivated violence”. In view of the gravity of the situation, the Committee urges the Government to take the necessary measures, as a matter of the utmost urgency to bring an immediate end to these practices which constitute a serious violation of the Convention and to re-establish a climate of legal security in which recourse to forced labour does not go unpunished. The Committee recalls that it is vital for appropriate criminal penalties to be imposed in practice on those who exact forced labour, because of the dissuasive nature of these penalties, and it urges the Government to take the necessary measures as a matter of urgency for this purpose.

Article 25. Criminal penalties. In its previous comments, the Committee noted that, under section 323 of the Labour Code, any infringement of section 2(3), which prohibits the use of forced or compulsory labour, shall incur the penalty of a maximum of six months’ imprisonment and/or a fine, without prejudice to criminal legislation laying down more severe penalties. Emphasizing that the penalties laid down in the Labour Code do not constitute an effective deterrent, the Committee asked the Government to specify the penal provisions that prohibit and sanction recourse to forced labour. The Government confirmed in 2011 that the Penal Code of 1940 (as amended up to 2006) does not establish any penalties for persons who impose forced labour. The Government explained that the Bill for the eradication of forced labour, which is under examination in Parliament, provides for effective criminal penalties. The Committee trusts that the Government will be in a position to announce in its next report the adoption of the Act for the eradication of forced labour and that the latter will establish criminal penalties that constitute an effective deterrent, in accordance with Article 25 of the Convention.

Repeal of legislation allowing for the exaction of work for national development purposes, as a means of levying taxes and by persons in preventive detention. For a number of years, the Committee has been asking the Government to repeal or amend the following legislative texts and regulations, which are contrary to the Convention:

• -Act No. 76-011 of 21 May 1976 concerning national development efforts and its implementing Order, Departmental Order No. 00748/BCE/AGRI/76 of 11 June 1976 concerning the performance of civic tasks in the context of the national food production programme: these legal texts, which aim to increase productivity in all sectors of national life, require, subject to criminal penalties, every able-bodied adult person who is not already considered to be making his/her contribution by reason of his/her employment (political representatives, employees and apprentices, public servants, traders, members of the liberal professions, the clergy, students and pupils) to carry out agricultural and other development work, as decided by the Government;
• -Legislative Ordinance No. 71/087 of 14 September 1971 concerning the minimum personal contribution, of which sections 18 to 21 provide for imprisonment involving compulsory labour, upon decision of the chief of the local community or the area commissioner, of taxpayers who have defaulted on their minimum personal contributions; and
• -Ordinance No. 15/APAJ of 20 January 1938 concerning the prison system in indigenous districts, which allows work to be exacted from persons in preventive detention (this Ordinance not being on the list of legal texts repealed by Ordinance No. 344 of 15 September 1965 concerning prison labour).

The Government previously indicated that these texts were obsolete and were therefore, de facto, repealed. Furthermore, replying to the Committee’s request to repeal these texts formally in order to guarantee legal certainty, the Government indicated that legal certainty was not compromised by the lack of any formal repeal of these texts. The Government indicated in its report of June 2011 that the promulgation of the Act for the eradication of forced labour will provide an answer to the concerns of the Committee with regard to the repeal of Act No. 76 011 concerning the national development effort and its implementing Order, as well as Ordinance No. 15/APAJ of 20 January 1938 concerning the prison system in indigenous districts. The Committee hopes that, on the occasion of the adoption of the Act for the eradication of forced labour, the legal texts to which it has been referring for many years, and which the Government indicates are obsolete and, de facto, repealed, will finally be repealed formally.