Individual Case (CAS) - Discussion: 2017, Publication: 106th ILC session (2017)

Worst Forms of Child Labour Convention, 1999 (No. 182) - Democratic Republic of the Congo (Ratification: 2001)



A Government representative said that the Government recognized the presence of children in certain artisanal mines, particularly in the provinces of Katanga, North Kivu and South Kivu. However, he recalled that the Democratic Republic of the Congo (DRC) was a post-conflict country which had experienced wars and armed conflict for over two decades, which had destroyed its economic fabric, with the loss of many jobs, an increase in the number of poor workers, the displacement of populations and a high rate of school drop-outs. Nevertheless, since 2001, efforts had been made by the Government to eliminate the worst forms of child labour. These efforts had included the adoption of the following legislative measures and regulations: (i) an increase from 16 to 18 years of the age at which young persons could enter into contracts (section 6 of the Labour Code, as amended in 2016); (ii) the abolition of the automatic emancipation of minors as a result of marriage (section 352 of the Family Code, as amended in 2016); (iii) an awareness-raising campaign in schools against early marriage; (iv) the adoption in 2014 of a Framework Act on the national education system providing for free and compulsory basic education; (v) the adoption in 2016 of an Act setting out the rules for the general social security scheme; and (vi) the appointment of a Special Advisor to the Head of State on action to combat sexual violence and the recruitment of children into the armed forces. Following the dialogue with the United Nations, the Government had signed on 4 October 2012 the Plan of Action to combat the recruitment and use of children in armed conflict and other serious violations of the rights of the child by the armed forces and security services. An Inter-ministerial Committee had also been established on the issue of work by children in mines and mining sites. The inter-ministerial Committee was responsible for advising the competent ministries and services, ensuring the coordination of the various initiatives adopted on this issue and raising the matter with organizations such as the Organisation for Economic Co-operation and Development (OECD), the United Nations Children’s Fund (UNICEF) and the ILO. It had developed a triennial plan of action for the period 2017–20, with the general objective of coordinating action on the ground with a view to bringing an end to the presence of children in mining. The plan of action also established the following five specific objectives: (i) following up and evaluating the implementation of action to combat child labour in mines and mining sites; (ii) monitoring the presence of children in mines and mining sites; (iii) strengthening the application of measures for the removal of children from mining supply chains; (iv) implementing the remedial measures proposed on the ground by the competent ministries and services; and (v) developing a communication strategy. He called for the mobilization of the international community around the issue of the recruitment and use of children by armed groups, as well as in mines and mining sites, with a view to identifying those responsible and envisaging the adoption of sanctions against those perpetrating such exploitation, the causes of which were essentially exogenous.

The Employer members felt appalled and saddened by the suffering of vulnerable persons, in particular children, in the country. Children were working in mines in conditions similar to slavery for identified persons or companies in the provinces of Katanga, East Kasai and North Kivu. They highlighted one case in particular where, according to the report of the United Nations Stabilization Mission in the Democratic Republic of the Congo (MONUSCO) of January 2011, a battalion commander of the Armed Forces of the Democratic Republic of the Congo (FARDC) had made use for gain of the forced labour of children in mines in North Kivu. Despite the adoption of Act No. 09/001 of 10 January 2009, section 187 of which established a penalty of penal servitude of ten to 20 years for the enrolment or use of children under 18 years of age in the armed forces and groups and the police, it remained unclear whether this army commander had been punished, arrested or dealt with in any way by the authorities. This person was possibly still in the army benefiting from the related privileges, whereas the Government should have set an example a long time ago in this specific case. The Employer members underlined that the adoption of the above Act was insufficient, and that it was necessary to give effect to the adopted Act in order to achieve genuine progress. The Committee on the Rights of the Child (CRC), in its concluding observations of 10 February 2009, had expressed concern that the enacted laws were not always followed by the issuance of appropriate implementing decrees, that law enforcement mechanisms were weak and that no activities had been carried out to raise awareness of these laws which were, consequently, not applied or implemented. The Employer members urged the Government to effectively enforce the existing laws in relation to child labour. While recognizing the complex situation of armed conflict prevailing in the country for over a decade, they did not consider that the international community was making excessive requests to the Government. According to a 2011 report on trafficking in persons of the United Nations High Commissioner for Refugees (UNHCR), Congolese girls were the victims of forced prostitution in improvised brothels and in camps, and also in the vicinity of mines and markets. Moreover, 50,000 children were working in mines, and armed groups frequently abducted and trafficked vulnerable persons, especially children. They indicated that according to the 2010 report of the United Nations Secretary-General on children and armed conflict in the Democratic Republic of the Congo, 1,593 cases of the recruitment of children had been reported between October 2008 and December 2009, including 1,235 in 2009. The Employer members emphasized that, according to the same source, 42 per cent of the total number of cases of recruitment reported had been attributed to the FARDC. Evidence showed that the FARDC and the Congolese National Police were at the epicentre of the problem, and the Government should act urgently and decisively in this respect. They called on the Government to follow up on the enactment of laws with effective measures against child labour. The Government should rehabilitate and treat the children in the country as if they were their own children.

The Worker members emphasized that this case had been discussed by the Committee on several occasions and that each year the DRC was the scene of terrible violations against innocent children. The Government once again needed to be urged, as in 2009, to take, on the most urgent basis, immediate and effective measures to eliminate forced and hazardous work by children under 18 years of age. The legislative provisions that it had adopted, and particularly Act No. 09/001 of 2009 and Legislative Decree No. 066 of 2000 on the demobilization and reintegration of vulnerable groups present in the armed forces, had not been sufficient to ensure that no children were recruited as child soldiers. According to a UNICEF report in 2015, around 80 children had lost their lives in violence related to armed conflict, 60 had been mutilated, 195 abducted and 487 enrolled in armed groups. Between January 2012 and August 2013, MONUSCO had documented the recruitment of 996 children by armed groups in the country. In its concluding observations of 2009, the CRC had found that the State, through its armed forces, bore direct responsibility for violations of the rights of the child and that it had failed to protect children and prevent such violations. In addition to armed groups, the FARDC was also responsible for the systematic recruitment into its ranks of children (42 per cent of the children recruited, according to a 2009 report by the Secretary-General of the United Nations). The Government’s action was contradictory as, on the one hand, it was carrying out reforms intended to prevent further recruitment and to punish violations, while on the other hand, it allowed the police and the armed forces, not only to recruit child soldiers, but also to use physical and sexual violence against them, with the perpetrators enjoying impunity. The FARDC has been responsible for half of the murders of children committed in 2010, many mutilations of children and 67 cases of sexual violence over the same period. Despite the legislation that existed, no prosecutions had been initiated, thereby guaranteeing the total impunity of those responsible for these atrocities and sending the message that they could continue to commit such acts. The names of those responsible, such as that of a former colonel of the FARDC, were of public notoriety. The United Nations had collected many witness statements concerning the murder of children who had been recruited, acts similar to torture and inhumane and degrading treatment. The Government had sufficient information to open investigations and to prosecute those presumed to be responsible for these atrocities. Children were also exposed to the worst forms of child labour in the mines of Katanga and East Kasai, where around 40,000 children were working under the oversight of military units on mineral extraction. They worked in mines for up to 12 hours a day, for US$1 or $2, in extremely hot temperatures, without the slightest protection and in contact with high concentrations of cobalt. The national legislation prohibited forced labour, but it was the absence of enforcement of the respective provisions that gave rise to problems, particularly in view of the ineffectiveness and incompetence of the labour inspection services. The national plan of action to combat the worst forms of child labour in mines by 2020, which had been adopted by the Government in 2015, had not resulted in progress in terms of the improvement of labour inspection and the number of children subject to forced labour practices. The penalties applicable for the use of forced or compulsory labour were weak and did not have a dissuasive effect. There were also many other structural problems, including decentralization, the lack of resources and poor coordination. The 2009 Act on the protection of children established the right to free and compulsory education for all children, but in the absence of public financing, most schools that had not been closed or destroyed continued to charge school fees. Certain children were forcibly enrolled in their schools, while others were the victims of sexual violence on the way to school. There were also nearly 30,000 street children in the country without shelter or protection, most of whom were in Kinshasa. According to UNICEF, many young girls, sometimes under 10 years of age, were engaged in prostitution. Thousands of future adults would therefore be marked for life and denied any prospect of physical or psychological development, as the Government was showing itself to be incapable of “preventing the engagement of children in the worst forms of child labour”, or of “removing children from the worst forms of child labour” and providing for “their rehabilitation and social integration” (Article 7(2) of the Convention). Despite certain improvements, many children continued to be recruited and the FARDC systematically prohibited access to their camps by investigators from the various international organizations and missions. As a result of such refusals, out of 50 attempts at screening by MONUSCO with a view to the demobilization of children under 18 years of age, it had only been possible to demobilize five children. It was also commonplace to “re-mobilize” children who had been demobilized. No firm and lasting results would be achieved for as long as the members of the FARDC enjoyed such autonomy and impunity. It was therefore essential for the Government to make every effort not only to implement programmes for the eradication of child labour and the demobilization of children, but also to ensure that its own army was not committing the atrocities that it was officially supposed to combat. The Government therefore needed to take measures, as a matter of the greatest urgency, to demobilize immediately and fully all children in the ranks of the FARDC and to bring an end to the forced recruitment of children under 18 years of age by armed groups. Recalling Security Council Resolution No. 1998 of 12 July 2011, the Worker members called on the Government to take effective measures to ensure that in-depth investigations were conducted and that prosecutions were brought to a conclusion, accompanied with sufficiently dissuasive penalties, including against officers of the regular armed forces.

The Employer member of the Democratic Republic of the Congo recalled that Congolese employers had always respected ILO instruments and ensured that they were enforced. Child labour in mines was chiefly due to traffickers and operators of mines in the informal sector whom the Government was taking steps to combat. The forced recruitment of children by the armed forces was news to no one, and had been well documented by MONUSCO. When examining why massive numbers of children were working in mines, it needed to be taken into account that the main product, coltan, was used in the cutting-edge information technology industry. Children were not being exploited by Congolese enterprises, but rather by armed groups that were taking advantage of the war. Nor was it possible to control multinational enterprises that came from abroad.

The Worker member of the Democratic Republic of the Congo referred to the political crisis gripping the country, which was caused by armed conflicts between loyalist forces and rebels and gave rise to instability and human rights violations. The expansion of small-scale mining in Katanga was now a means of subsistence for very large numbers of people, particularly following the collapse of the largest publicly owned mining concern. Children were gathering the cobalt discarded by many of the industrial mines located in the province, usually without the permission of the enterprises, and then the mineral was washed, sifted and sorted in water courses and lakes. He also referred to an inquiry carried out by Amnesty International and African Resources Watch at five mining sites in Katanga. Among the health risks identified were a potentially fatal lung disease, known as “hard metal lung disease”, as well as respiratory sensitization, asthma, shortness of breath and decreased pulmonary function. The majority of miners worked long hours in contact with cobalt and lacked even the most basic protective equipment. Moreover, the current legal framework contained no provisions on health protection for small-scale miners. In 2014, UNICEF had estimated that around 40,000 children were working in the mines in the south of the country. The work they did was particularly arduous. For a daily wage of between $1 and $2, they worked 12 hours a day carrying heavy loads in high temperatures or rain. They were sometimes beaten. Although the right to free and compulsory primary education for all children was established in law, the majority of schools continued to require a contribution, as State funding was insufficient. Furthermore, the labour inspectorate did not have the necessary powers. The Government should ensure the establishment of an effective system to eradicate the worst forms of child labour and make primary schooling a priority. The plan of action had not been officially adopted or endorsed by the Government. With regard to child soldiers, despite the existence of legal provisions governing their demobilization, follow-up mechanisms posed many problems due to the lack of adequate funding.

The Government member of Malta, speaking on behalf of the European Union (EU) and its Member States, as well as Bosnia and Herzegovina, Montenegro and Norway, reaffirmed the commitment to the promotion of the universal ratification and implementation of the eight fundamental Conventions as part of the EU Strategic Framework on Human Rights, and to the eradication of child labour, especially in its worst forms. Recalling the commitment made by the DRC under the Cotonou Agreement, the framework for cooperation with the EU, to respect democracy, the rule of law and human rights, which included the abolition of child labour and compliance with the Convention, he regretted that the Government had not submitted its report in time for examination by the Committee of Experts, which had been bound to repeat its comments since 2011. He welcomed the efforts made by the Government, such as the adoption of the 2012 Plan of Action, thereby indicating its commitment to end the recruitment and use of children in armed conflict. It should be noted that in 2015, no case of child recruitment by the FARDC had been documented by the United Nations monitoring and reporting mechanism and that, in order to prevent new cases of enrolment, the Government had adopted a new procedure in 2016 that required age verification of FARDC members. It was critical for the national forces to be exemplary in this respect. However, child recruitment by armed groups continued and jeopardized the future of children, especially young girls. He also noted with deep concern the persistent phenomenon of child labour in mines and the use of children by armed groups, sometimes under reported FARDC supervision, for the extraction of minerals. In light of the above, he called on the Government to take the following measures: (i) prevent the enrolment of children in the regular forces or armed groups, as well as forced or hazardous child labour in mines, including through measures such as awareness raising and basic education for all; (ii) ensure the demobilization of children enrolled in armed groups; (iii) ensure the investigation and prosecution of persons recruiting children either in armed groups or to work in mines; and (iv) ensure the social reintegration and rehabilitation of these children and in particular child soldiers, while giving special attention to girls. Lastly, he reaffirmed the ongoing commitment to cooperation and partnership with the DRC.

The Worker member of Canada described child labour in the mines of the DRC as a terrible reality. According to a 2014 estimate by UNICEF, 40,000 young boys and girls were used for dangerous mining activities, and military units recruited children for forced labour, in particular the extraction of natural resources, primarily cobalt. The country produced at least 50 per cent of the world’s cobalt used in lithium-ion batteries. Moreover, the working conditions at mining sites were atrocious. The children worked under dangerous and unsanitary conditions exposing them to fatal injuries and diseases, without breaks, and for a remuneration of US$1–$2 per day. Against this background, she found it scandalous that the Committee of Experts was forced to repeat its requests for information every year, including regarding inspection statistics. A key measure for the enforcement of labour legislation was the existence of a strong and independent labour inspectorate to ensure workplace compliance with laws and regulations, such as those defining minimum age and hazardous work. Labour inspectors needed to be trained and well paid so as to avoid corruption sustaining illegal practices. These were essential efforts that governments could make in their commitment to combating the worst forms of child labour. While the national law might be in line with the Convention, she emphasized the need for political will, good governance and commitment to enforce the law. There was no evidence of the Government’s political will without labour inspection reports, data and statistics, transparency and responses to the Committee of Experts’ comments. She urged the Government to find the political will to enforce its legislation to bring to an end the worst forms of child labour.

The Government member of Switzerland supported the statement by the European Union. Child labour and, more specifically, the use of children in armed conflict were disturbing phenomena. She hoped that the Government would report on the activities undertaken to ensure the protection of children and compliance with the Convention as soon as possible. She encouraged the Government to continue the efforts made to prosecute those who had taken part in serious violations of the rights of children and to redouble its efforts to remove children from work in mines. The Government also needed to take the necessary measures to guarantee the demobilization of children enlisted in the FARDC, the ending of all recruitment of children and their rehabilitation and social reintegration.

The Worker member of Nigeria, also speaking on behalf of the Southern African Trade Union Coordinating Council (SATUCC), stated that the Committee of Experts’ observation that access to education in the eastern DRC was hindered by armed conflict had been confirmed by children reporting kidnappings, forced enrolments, beatings and rapes in school. The Government had failed to protect these children and was still failing to do so. Furthermore, he denounced the fact that only 29 per cent of children in rural areas and 24 per cent in urban areas were registered at birth. Inability to prove citizenship exposed non-registered children to difficulties in accessing services such as education, and thus rendered them more vulnerable to recruitment into armed conflict. Moreover, the Government needed to take urgent and robust measures to address the plight of internally displaced persons, especially in the east, where almost half of the population was under 18 years of age. Internally displaced children had difficulty in accessing education, which put them at increased risk of engaging in child labour. Recalling that access to education was not only a right, but also an effective tool to defeat child labour and its worst forms, he called on the Government to improve access to education by registering all children at birth, developing programmes that assisted internally displaced children, and ensuring that schools were safe and child-friendly.

The Government member of Canada expressed deep concern at the situation in the DRC and called on the Government to take the appropriate steps to demobilize all children from the ranks of the FARDC, and bring an effective end to the recruitment of children by armed groups. The Government must also take the necessary measures to eliminate forced and hazardous labour by children in mines, and to ensure their rehabilitation and social reintegration, with particular emphasis on girls. In accordance with national legislation, perpetrators of violations must be brought to justice and serve their sentences, even if they worked for the security forces. The Government should provide the information requested by the Committee of Experts on the following points: the investigations conducted, prosecutions brought and convictions handed down; statistics on the application of the legislation; the number of child soldiers removed and reintegrated; and the action taken to reinforce the capacities of the labour inspectorate, as envisaged in the plan of action. The Government should also increase cooperation with MONUSCO in order to bring an end to the recruitment of children in the army, and to enable their demobilization and social integration.

The Worker member of the Republic of Korea aligned herself with the statements made by the Worker members of Canada and Nigeria. With reference to the Committee of Experts’ comments on the issue of persisting child labour, especially in mines, she underlined that there were around one quarter of a million street children in the country, 70,000 of whom lived in Kinshasa. The situation of young girls was even more alarming. She indicated that many of them started a life of prostitution as early as 12. Despite having been signed in 2015, the Plan of Action had not generated quantifiable improvements in terms of strengthening labour inspection and reducing the number of children subject to forced labour. She urged the Government to promptly ensure the implementation of the Plan of Action and, in particular, to guarantee free access to basic education for all children and to pursue targeted measures for the protection of young girls. Finally, she fully supported the recommendations urging the Government to take measures to eliminate forced labour and hazardous forms of child labour.

The Government member of Chad noted with satisfaction the adoption of Act No. 09/001 of 10 January 2009, penalizing the enlistment or use of children under 18 years of age in the armed forces and groups and the police. The adoption of this Act and other legislative and regulatory measures confirmed the Government’s will to effectively combat the recruitment of child soldiers in the country and to ensure the necessary protection. Furthermore, the Government was committed to building the capacities of the labour inspection services within the framework of the implementation of the plan of action. These commitments and efforts should continue to be encouraged and supported.

The Government member of Algeria highlighted the Government’s strong political will to combat the scourge of the worst forms of child labour, and the implementation by the Government of an inter-sectoral approach with a view to combining efforts and resources, as well as the adoption of legislative and regulatory measures, especially since 2001. The Committee should encourage the country by continuing to provide assistance and support for the eradication of the worst forms of child labour in the very near future.

Another Government representative said that the Government had listened to the strong calls by the members of the Committee, as well as the encouragement for it to intensify its efforts to combat the worst forms of child labour. The Government, in its awareness of its responsibilities, had replied to all the comments of the Committee of Experts in a report that would be handed to the Director-General of the ILO on Monday, 12 June. Some of the information provided during the discussion had been taken from the previous report. The new report contained new information. With regard to mines, it was since the DRC had been confronted by war and the proliferation of armed groups and had been subject to influence from abroad that children had become the victims of forced labour. Recurrent wars in North Kivu and South Kivu had hampered economic development and resulted in unemployment, poverty, massive school drop-outs and forced recruitment. These problems existed in the structures linked to smuggling, not in enterprises which operated mines legally, as the Minister of Labour of the time had been able to see during a visit in 2013 following the publication of a UNICEF report. The Government was sparing no effort but, following two decades of war, it was difficult to provide adequate protection for children in such a complex situation. She called on the international community to engage in broad reflection on the issue of the traceability of minerals. Moreover, aware of the weaknesses of the labour inspection system and its lack of personnel, she requested ILO technical assistance to reinforce the labour inspection services as a means of improving law enforcement. A project to recruit 1,000 labour inspectors, including a training component in cooperation with the ILO and the African Regional Labour Administration Centre, was currently being developed and should receive financing during the course of the year.

The Worker members once again expressed deep concern at the worst forms of child labour, which had affected children in the DRC for generations. The legislative measures adopted were not adequate to eradicate this scourge and the Government needed to provide a clear and coherent response in practice. Urgent measures needed to be taken to prosecute those recruiting child soldiers and the perpetrators of other abuses and violence, and for the demobilization, rehabilitation and social reintegration of the children who had been recruited. It was also necessary to take action to prevent abuse in all fields in which the worst forms of child labour were rife, including mining, where over 50,000 children were subject to forced labour, as well as street children. A country that failed to protect its children was a country without a future. The Worker members regretted that the Government had not provided a report on these matters and urged it to provide information on the specific measures taken for the effective eradication of the worst forms of child labour as soon as possible. It was important to bear in mind that the terrible abuse committed against children in the DRC concerned everyone, as the minerals extracted from the mines in the country were used in all types of extremely common electronic equipment. The Worker members called on the Government to: (i) remove children from the worst forms of child labour and ensure their rehabilitation and social integration; (ii) bring an end to the “re-mobilization” of children who had previously been demobilized; (iii) implement the programme for the disarmament, demobilization and reintegration of children; (iv) bring an end to the impunity of the FARDC and impose dissuasive penalties; (v) conduct in-depth investigations and prosecute the persons responsible for recruiting children into armed conflict, including officers of the regular armed forces; and (vi) reply without delay to the comments of the Committee of Experts.

The Employer members pointed out that the submission by the Government, of the report under article 22 of the ILO Constitution, during the Conference in June 2017, whereas it had been due in September 2016, was considered insufficient by the Committee. Governments should submit reports on time so as to enable the Committee of Experts to examine compliance with the relevant Convention. They expected that henceforth the Government would comply with its reporting obligation. The Employer members reiterated their call on the Government to enforce the enacted laws. With reference to the Government’s statement that there were only two inspectors in provinces as large as a medium-sized country, they believed that, if human resources for law enforcement were scarce, the revenues from those provinces and the mining should be invested in the necessary recruitment for the sake of the country and the children. While recognizing the consequences of prolonged armed conflict, they considered that efforts needed to be made to put in place a process similar to the Kimberley Process, with a view to ensuring that minerals were registered and, subsequently, marked if they reached trade, so as to detect any provenance from child labour. Finally, the Employer members appealed to the Government to become aware of the suffering of the children and help them through their trauma, in order to eventually break the cycle and secure the future of the DRC via its children.

Conclusions

The Committee took note of the oral statements made by the Government representative and the discussion that followed.

The Committee noted the grave issues concerning this fundamental Convention, referring in particular to the forceful recruitment of children under the age of 18 into the armed forces and the lack of adequate access to education. The Committee also expressed disappointment over the Government’s failure to comply with its reporting obligations for several years.

Taking into account the discussion, the Committee called upon the Government of the Democratic Republic of the Congo to:

- ensure the full and immediate demobilization of all children in the ranks of the FARDC and to put a stop to the forced recruitment of children into armed groups, giving special attention to the demobilization of girls;

- intensify its efforts to prevent children from working in mines and other hazardous sectors and to provide the necessary and appropriate direct assistance for their removal from these worst forms of child labour;

- ensure that thorough investigations and prosecutions of offenders are carried out and that sufficiently effective and dissuasive penalties are imposed on them;

- intensify its efforts to take effective, time-bound measures to remove children from armed groups and other worst forms of child labour and to ensure their rehabilitation and social reintegration;

- provide information on the number of child soldiers removed from the armed groups and reintegrated into society.

The Committee recommended the Government of the Democratic Republic of the Congo to avail itself of technical assistance in order to eradicate the worst forms of child labour and to report progress in relation to the abovementioned recommendations to the Committee of Experts before its November 2017 session.

The Committee called on the ILO, the international community and employers’ and workers’ organizations to collaborate with the goal of eliminating all forms of child labour, including the worst forms of child labour in the country without delay.