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

Abolition of Forced Labour Convention, 1957 (No. 105) - Botswana (Ratification: 1997)

Article 1(a) of the Convention. Sanctions involving the obligation to work as a punishment for expressing political views or views ideologically opposed to the established political, social or economic system. In its previous comments, the Committee noted that a number of provisions of the Penal Code are worded in terms broad enough to lend themselves to application as a means of punishment for the expression of views. It referred to offences under sections 47 and 48 (publications prohibited by the President as being “contrary to the public interest”), 51(1)(c), (d) and (2) (seditious offences; raising discontent or disaffection amongst the inhabitants being considered a seditious intention), 66–68 (managing or being a member of an unlawful society, particularly of a society declared unlawful as being “dangerous to peace and order”) of the Penal Code which may be punished with sentences of imprisonment, involving compulsory prison labour, pursuant to section 92 of the Prisons Act, Cap 21:03 of 1979.

The Committee notes the Government’s information in its report that consultations are under way to review the Constitution, to inform the Government of the legislation requiring alignment with the Constitution, including the Penal Code. The Committee expresses the firm hope that the necessary measures will be taken to amend sections 47, 48, 51(1)(c), (d) and (2), sections 66–68, as well as sections 74 and 75 of the Penal Code, so as to ensure that no penalties involving compulsory labour may be imposed for the expression of political views or views opposed to the established system, for example by restricting the scope of application of these provisions to situations of violence, incitement to violence, or engagement in preparatory acts aimed at violence. The Committee requests the Government to provide information on the developments made in this regard.

Article 1(c). Punishment for breaches of labour discipline. The Committee previously noted that section 43(1)(a) of the Trade Disputes Act (No. 15 of 2004) provides for penalties of imprisonment involving compulsory prison labour for any wilful breach of a contract of employment by an employee who is acting either alone or in combination with others, if such breach affects the operation of essential services. The Committee recalled that Article 1(c) of the Convention prohibits the use of compulsory labour as a punishment for breaches of labour discipline. Penalties involving compulsory labour could only be held compatible with the Convention when applied to breaches of labour discipline that impair or are liable to endanger the operation of essential services, in the strict sense of the term. The Committee observed in that regard that the list of essential services specified in the Trade Disputes Act was not limited to essential services in the strict sense of the term.

The Committee notes the Government’s information that the list of essential services under the Trade Disputes Act has been amended by the Trade Disputes (Amendment) Act, 2019. It notes with interest the fact that the list of essential services has been reduced and that services such as diamond sorting, cutting and selling services; teaching services; government broadcasting services; the Bank of Botswana; vaccine laboratory services; railways operation and maintenance services; immigration and customs services; transportation and distribution services of petroleum products; sewerage services; and public veterinary services have been removed from the list. The Committee refers in this regard to its comments under the Freedom of Association and Protection of the Rights to Organise Convention, 1948 (No. 87).