Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Forced Labour Convention, 1930 (No. 29) - Eswatini (Ratification: 1978)

Articles 1(1), 2 and 25 of the Convention. 1. Legislative developments. The Committee notes the Government’s indication, in its report, that the redrafting of the Employment Bill was finalized by the tripartite Labour Advisory Board, after technical comments were provided by the ILO. It notes, more particularly, that sections 19 to 21 of the Employment Bill prohibit forced labour and section 158(1)(b) of the Bill establishes the penalties in case of forced labour. The Committee notes that section 19 of the Bill, which refers to five situations in which the work or service imposed should not be considered forced labour, generally follows the exceptions under Article 2(2) of the Convention. It notes, however, that:

• (i)section 19(d) of the Bill provides that “communal services of a kind which are to be performed by the member of a community in the direct interest of the community and not being for the purposes of financial gain” do not constitute forced labour. In this regard, the Committee wishes to draw the Government’s attention to the fact that section 19(d) of the Bill goes beyond Article 2(2)(e) of the Convention, which excludes from its scope minor communal services, provided they are “performed by the members of the community in the direct interest of the said community” and “that the members of the community or their direct representatives shall have the right to be consulted in regard to the need for such services” (2012 General Survey on the fundamental Conventions, paragraph 281);
• (ii)section 19(e) of the Bill provides that “any work or service which forms part of the normal civic and cultural obligations of the citizens of a fully self-governing country” do not constitute forced labour. In this regard, the Committee wishes to draw the Government’s attention to the fact that section 19(e) of the Bill goes beyond Article 2(2)(b) of the Convention as the exception of “normal civic obligations” provided for under this provision of the Convention should be understood in a very restrictive way; and
• (iii)section 158(1)(b) of the Bill provides that “exacting or imposing forced labour, or causing or permitting forced labour to be exacted or imposed” is punishable by a fine or imprisonment for a period not exceeding one year or both. The Committee observes that, according to this provision, a person committing the offence of forced labour may be sentenced to a fine only. It recalls that, pursuant to Article 25 of the Convention, the exaction of forced or compulsory labour shall be punishable as a penal offence, and when the envisaged sanction consists of a fine or a short prison sentence it cannot be considered as an effective penalty of a dissuasive nature in view of the gravity of the offence (see the 2012 General Survey, paragraph 319).

The Committee notes the Government’s indication that, in August 2021, the final draft of the Employment Bill was submitted to the Minister for Labour and Social Security and forwarded to the Office of the Attorney-General. The Bill will be then forwarded to the Cabinet for approval and to the Parliament for adoption. The Government states that it is anticipated that the legislative process will be completed without any further delay, particularly taking into account the level and extent of consultations that have taken place within the Legislative Advisory Board. The Committee therefore expresses the firm hope that the Government will take into account the above comments and adopt the necessary measures to ensure that the final version of the Employment Bill fully complies with the provisions of the Convention, in particular by amending:

• –sections 19 (d) and (e) of the Bill in order to limit the scope of the exclusions from the definition of forced labour to: (i) minor communal services, while including a requirement to consult the members of the community or their direct representatives concerning the obligation to perform such minor community services; and (ii) “normal civic obligations” to be understood in a very restrictive way; and
• –section 158(1)(b) of the Bill in order to establish sufficiently dissuasive penalties of imprisonment for the exaction of forced labour.

2. Legislation concerning compulsory public works or services. For a number of years, the Committee has been drawing the Government’s attention to Swazi Administration Order No. 6 of 1998 which provides for the duty of Swazis to obey orders requiring participation in compulsory works, such as compulsory cultivation, anti-soil erosion works and the making, maintenance and protection of roads, enforceable with severe penalties for non-compliance. It previously noted that, despite the Government’s indication that this Order had been declared null and void by the High Court of Swaziland (Case No. 2823/2000), such practices persisted, being rooted in the well-established and institutionalized customary law, in particular through the customary practice of Kuhlehla (rendering services to the local chief or to the King, such as ploughing the fields of traditional leaders), which was still practised and enforced with punitive measures for refusal to attend. While noting the Government’s explanation that this customary practice was not compulsory, the Committee observed the absence of a text regulating the nature of this work or rules determining the conditions under which such work was required or organized. It requested the Government to take steps in order to explicitly set out in the legislation the voluntary nature of participation in the customary practice of Kuhlehla.

The Committee notes the Government’s indication that the country has a dual legal system based on written Roman-Dutch common law and unwritten traditional and customary laws, as provided for under articles 252 and 258 of the Constitution (Act No. 1 of 2005). The Government adds that the customary practice of Kuhlehla forms part of the unwritten traditional and customary laws which therefore makes it impossible for the Government to adopt a text regulating this practice. The Government indicates that, in order to put an end to this issue, a new section 19(e) has been incorporated into the Employment Bill, in order to exclude from the definition of “forced labour” any work which forms part of the “cultural obligations” of the citizens. The Committee refers, in this regard, to its above comments regarding section 19(e) of the Employment Bill. The Committee notes with concern that despite its previous requests to the Government to ensure the voluntary nature of participation in work carried out pursuant to customary practices, such as Kuhlehla, the Government envisages explicitly excluding these practices from the scope of the legislation prohibiting forced labour. The Committee draws the Government’s attention to the fact that, as long as customary practices, such as Kuhlehla, fail to meet the criteria of the exceptions to forced labour set out in Article 2 of the Convention for “minor communal services”, “civic obligation” or "cases of emergency", they are incompatible with the Convention. The Committee therefore urges the Government to take the necessary steps to ensure compliance with the Convention, whether by ensuring the voluntary nature of participation in work carried out under traditional and customary laws, and more particularly under the customary practice of Kuhlehla, or by limiting the work exacted under such practices to the exceptions of the Convention. It requests the Government to provide information on any progress made in this regard. The Committee further requests the Government to provide information on the number of persons who have been working as a result of customary practices, including the practice of Kuhlehla, as well as on the type and duration of services carried out.

The Committee is raising other matters in a request addressed directly to the Government.