Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - South Sudan (Ratification: 2012)

The committee notes that, since the receipt of the Government’s report in 2019, the country has witnessed political turmoil leading to intercommunal violence. It also notes the establishment on 22 February 2020 of the Transitional Government of National Unity. While acknowledging the difficult situation prevailing in the country, the Committee encourages the Government to increase its efforts to ensure the effective application of the Convention, and requests the Government to provide information on the following:

Article 1(1)(a) of the Convention. Protection against discrimination. Legislation. The Committee notes the adoption of the Labour Act 2017 (No.64) The Government indicates in its report that non-discrimination in employment and occupation is addressed in section 6 of the Labour Act 2017: section 6(1) prohibits direct and indirect discrimination against a worker or job applicant in any work place or practice; and section 6(3) defines discrimination as any distinction, exclusion or preference with the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation based on a wide range of grounds, including: race; tribe or place of origin; national extraction; colour; sex; pregnancy or childbirth; marital status; family responsibilities; age; religion; political opinion; disability or persons with special needs; health and HIV/AIDS; or membership in a trade union or participation in trade union activities. The Committee notes however, that “social origin” has been omitted from the prohibited grounds of discrimination. It recalls that discrimination and lack of equal opportunities based on social origin refers to situations in which an individual’s membership of a class, socio-occupational category or caste determines his or her occupational future, either because he or she is denied access to certain jobs or activities, or is assigned only certain jobs. Even in societies with considerable social mobility, or in less highly stratified societies, a number of obstacles continue to prevent effective equality of opportunity for various social categories. (See 2012 General Survey on the fundamental Conventions, paragraph 802). In that regard, it wishes to highlight the continuing relevance of addressing discrimination based on class and socio-occupational categories. The Committee further notes that section 7 prohibits and defines sexual harassment, including both quid pro quo and hostile environment harassment. As regard the constitutional provisions in force, the Committee notes that section 14 of the Transitional Constitution of South Sudan of 2011 (TCSS), as amended in 2013, provides for equal protection of the law without discrimination as to race, ethnic origin, colour, sex, language, religious creed, political opinion, birth, locality or social status, but omits the ground of “national extraction”. Recalling that where legal provisions are adopted to give effect to the principle of the Convention, they should include, as a minimum, all the grounds of discrimination specified in Article 1(1)(a) of the Convention, the Committee asks the Government to consider introducing the ground of “social origin” in the Labour Act to be in full conformity with the Convention. It also asks the Government to consider including the ground of “national extraction” in the constitutional provisions on non-discrimination, in any upcoming review of the TCSS. Please provide information on any progress made in this regard.

Civil service. The Committees notes that the Labour Act provides in its section 4(4) that “to the extent that the Civil Service Act 2011, or other law of the Government, establishes conditions of employment more favourable to employees covered by that Act than are established under this [Labour Act], the relevant provisions of such Act shall apply to an employee so covered”. The Committee notes once again that section 19(a) of the Civil Service Act 2011, prohibits discrimination against all public officials, officials and employees in respect of remuneration, terms, conditions, benefits and privileges of service on grounds of “gender, marital status, ethnic origin, political affiliation, ideology, economic condition, religious or philosophical belief, cultural origins, or social opinions”. It notes however, that section 19(a) does not cover the grounds of race, colour, political opinion, national extraction and social origin, and does not appear to cover all aspects of employment, including recruitment. The Committee also notes that section 19(b) of the Civil Service Act, provides equal rights for women and men in recruitment, promotion and remuneration. With respect to political opinion, it needs to be determined whether political affiliation and ideology read together could cover “political opinion” within the meaning of the Convention. The Committee notes an absence of information from the Government on this point. In order to avoid any conflict between section 19(b) of the Civil Service Act, and the Labour Act, the Committee asks the Government once again to consider amending section 19(b) to include at least all of the seven grounds enumerated in the Convention, namely, race, colour, sex, religion, political opinion, national extraction and social origin, and ensure that all aspects of employment, including recruitment, are covered.

Articles 1(3) and 2. Access to vocational training. In the absence of information on this point, the Committee asks the Government to provide details on the measures taken or envisaged to facilitate vocational training and promote employment and occupational opportunities of persons regardless their race, colour, sex, religion, political opinion, national extraction or social origin.

Article 2. National equality policy. Previously, the Committee requested the Government to provide information on the implementation of the Policy Framework and Strategic Plan of 2012–16 (Strategic Plan), particularly the strategic area on “elimination of discrimination at the workplace” (section 5 of the Policy). The Government indicates that due to the current challenges facing the country, the Strategic Plan was not fully implemented. It was revised and extended for the period 2019-2023 and it is expected that most of the activities planned will be implemented. The Committee wishes to recall that, under Article 2 of the Convention, the primary obligation of ratifying States is to declare and pursue a national policy designed to promote equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof. In moving towards this objective, although offering considerable flexibility and a wide margin to adapt to national conditions and practice, the Convention requires that appropriate measures should be adopted in line with the underlying principles enumerated in Article 3 of the Convention and Paragraph 2 of the Recommendation to be effective. The Committee asks the Government to indicate the concrete and specific measures taken or envisaged to address discrimination, in law and in practice, for all categories of workers, in all aspects of employment and occupation and in respect of all the different grounds of discrimination expressly referred to by the Convention.

Equality of opportunity and treatment between men and women. The Committee notes that pursuant to article 16(4)(a) and (b) of the TCSS all levels of government are required to: (1) promote women’s participation in public life and their representation in the legislative and executive organs by at least 25 per cent to redress imbalances created by history, customs, and traditions; and (2) enact laws to combat harmful customs and traditions which undermine the dignity and status of women. Furthermore, the Committee notes that the TCSS contains several other provisions which are aimed at improving the representation of women members in the Council of Ministers (article 109); in the Judiciary (article 123(6)) in the independent institutions and commissions established under the TCSS or any other such bodies established by the National Government (article 142(3)), and in each legislative and executive organ of each state (article 162(7)). The Committee notes also that, in reviewing the Government’s “Initial report” submitted to the United Nations Committee on the Elimination of Discrimination against Women (CEDAW), the CEDAW pointed out that “the recognition of customary law and wide application of it in adjudication makes it difficult to follow principle of equality, especially for women and girls within the family setting and other real-life experiences (CEDAW/C/SSD/1- 19 February 2020, paragraph 7). Moreover, in spite of the demonstrated political will and constitutional guarantees, attitudes to gender equality, the rights of women are still predominantly steeped in a patriarchal social system, which entrenches gender-based discrimination and exposes women and vulnerable groups to marginalization, violation of rights and violence (paragraph 188). Noting the efforts of the Government to develop and implement a policy promoting equality of opportunity and treatment between men and women, the Committee asks the Government to provide information on: (i) the implementing measures adopted and the results achieved, as regard occupational gender segregation in the labour market, and particularly access of women to a wide range of occupation; (ii) the measures taken or envisaged to tackle the fact that in practice women are mostly engaged in vulnerable employment or unpaid work (such as tackling entrenched gender norms and stereotypes concerning the distribution for care and housework between men and women and equip them with skills that match market demands for higher income and secure jobs); and (iii) the challenges encountered in the implementation of the laws and policies. Please provide updated data on women’s participation in the labour market and the informal economy.

General observation of 2018. The Committee would like to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction which was adopted in 2018. In the general observation, the Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. Furthermore, the Committee considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population.

The Committee draws the Government’s attention to its general observation of 2018 and requests the Government to provide information in response to the questions raised in that observation.

Article 3(a). Cooperation with the social partners and other institutions. In reply to the Committee’s comments on the provision of training to the social partners and the law enforcement bodies, the Government indicates that no training could be provided due to lack of donors’ funding. The Committee notes that the Government did not communicate the measures taken, in collaboration with the workers’ and employers’ organizations and the National Commission for Human Rights (NCHR), to promote the principles of the Convention. In this regard, it wishes to stress that, the fact that the State bears the chief responsibility of declaring and pursuing a national policy should not cause one to overlook the essential role of employers’ and workers’ organizations in promoting the principle of equality at the workplace itself, and the corresponding responsibilities. The Committee thus once again requests the Government to provide information on any activities undertaken in collaboration with the workers’ and employers’ organizations and the National Commission for Human Rights, to promote equality of opportunity and treatment in employment and occupation. Please, provide information on any training on equality of opportunity and treatment in employment and occupation being offered to the Judiciary, labour inspectors and other public officials who have to deal with these matters, as well as workers’ and employers’ organizations.

Articles 3(d) and 5(2) Public service. The Committee recalls that: (1) section 28(2) of the Civil Service Act 2011 provides that recruitment or promotion shall be exclusively based on the applicant’s suitability for the post and shall not be decided on grounds of race, creed, sex or religion etc. “unless specified otherwise by the Constitution, relevant government policy on gender or any other law”; and (2) that section 38 of the Civil Service Act grants “special consideration” for former Sudan’s People Liberation Movement (SPLM)/Sudan’s People Liberation Army (SPLA) personnel wishing to join the Civil Service but lacking formal qualifications and job experience. Section 38, in particular, requires the Ministry of Labour to develop and implement as a matter of urgency a policy for the “particular circumstances” of this group so that they are provided with equal opportunities for employment. The Committee notes that the Government does not provide information on the application in practice of both provisions and stresses the importance of both hiring the best person for the job and ensuring workforce diversity. It further highlights that Article 5(2) of the Convention allows for special measures of protection or assistance to meet the particular requirements of certain persons, after consultation with representative employers’ and workers’ organizations. It therefore asks the Government to provide information on any special measures adopted or envisaged in favour of the participation of certain categories of workers in the public sector, in particular women or ethnic minorities. Please also provide sex-disaggregated or qualitative data on the distribution of men and women and if available ethnic minorities distribution in the public service. The Committee asks the Government to provide information on the application in practice of section 38 of the Civil Service Act and to indicate to what extent employers’ and workers’ organizations have been consulted so as to determine whether former SPLM/SPLA are a category requiring special measures, in accordance with Article 5(2) of the Convention.

Special measures. Private sector. The Committee recalls that section 5(b) of the Labour Act 2017, allows for special measures to be adopted to assist persons who are generally recognized as requiring special assistance. Furthermore, the Committee noted that the TCSS contains several other provisions which are aimed at improving the representation of women members in the Council of Ministers (article 109); in the Judiciary (article 123(6)); in the independent institutions and commissions established under the TCSS or any other such bodies established by the National Government (article 142(3)) and in each legislative and executive organ of each state (article 162(7)); and which set a target of 25 per cent with respect to these. In the absence of information on this point, the Committee asks the Government to provide information on the application in practice of this provision, including any results achieved in improving the representation of women and the targets set in the TCSS.

Article 3(e). Vocational training and guidance. In reply to the Committee’s comments, the Government indicates that, since the 2013 crisis, funds earmarked for training in the Government institutions are limited and therefore no training activities could be undertaken. Underlining the importance of education to achieve equality in employment and occupation, the Committee hopes that the Government will take the necessary measures to provide education and vocational opportunities to girls and women to enable them to gain access to a wider range of jobs, particularly in sectors traditionally male-dominated, and to more highly paid jobs. Please, provide up-to-date information on the distribution of men and women in the different educational and vocational training institutions, with an indication of the types of courses they are taking.

Article 4. Measures affecting individuals suspected of activities prejudicial to the security of the State. The Committee recalls that the protection of persons suspected or engaged in activities prejudicial to the security of the State is provided for in section 3 of the Human Rights Commission Act 2009. However, this provision only sets out the general purpose of the Human Rights Commission. Noting the absence of information on this point, the Committee requests once again the Government to provide specific information on the rights of workers to appeal where suspected of, or engaged in, activities prejudicial to the security of the State, in accordance with the Convention.

Statistics. Referring to its 2020 direct request on the application of the Equal Remuneration Convention, 1951 (No. 100), the Committee notes the Government’s indication that the Ministry of Labour will need technical support to set up a compiled statistical system. The Committee encourages the Government to avail itself of the technical assistance of the Office to be in a position to provide statistics disaggregated by sex and ethnicity on participation in employment and training in the public and private sectors.

Enforcement. Noting the absence of information on this point, the Committee asks the Government to provide information on the number of inspections as regards discrimination in employment and occupation, the number of complaints, and the number of cases identified and the follow-up to these cases. Please also provide information on any relevant court decisions, indicating the grounds of discrimination invoked and the outcome of such proceedings.