Demande directe (CEACR) - adoptée 2022, publiée 111ème session CIT (2023)

Convention (n° 29) sur le travail forcé, 1930 - Somalie (Ratification: 1960)

The Committee notes with deep concern that the Government’s report, due since 1992, has not been received. In light of its urgent appeal launched to the Government in 2021, the Committee proceeds with the examination of the application of the Convention on the basis of the information at its disposal.

Articles 1(1), 2(1) and 25 of the Convention. Prohibition of forced labour practices. 1. Legislative developments. The Committee notes, from the Government’s report sent to the United Nations Human Rights Committee in 2021, that the draft Labour Code and the draft Sexual Offences Law were approved by Cabinet and are currently pending approval by Parliament (CCPR/C/SOM/1, 20 January 2021, paras 85 and 86). It further notes that, in the context of the Universal Periodic Review, the Government states that the new Constitution and the new Penal Code are expected to be ready by 2022 (A/HRC/WG.6/38/SOM/1, 26 February 2021, paras 7 and 24). The Committee requests the Government to provide information on any progress made in the adoption process of: (i) the draft Labour Code; (ii) the draft Sexual Offences Law; and (iii) the draft Penal Code, and to indicate the relevant provisions of these texts which define and prohibit forced labour practices. Please provide copies of these new legislations once adopted.

2. Trafficking in persons. The Committee previously noted the concerns expressed by the Federation of Somali Trade Unions (FESTU) regarding the lack of measures implemented by the Government to combat trafficking in persons, despite Somalia being a source, transit, and destination country for trafficking in persons. It urged the Government to take the necessary measures to effectively prevent and combat trafficking in persons in practice.

The Committee notes that the United Nations Office on Drugs and Crime (UNODC) has been supporting the Federal Government of Somalia and Federal Member States to strengthen their capacity to effectively respond to cases of trafficking in persons and smuggling of migrants, in particular by organizing several training workshops for officials, prosecutors, judges, as well as police officers and investigators, in 2021 and 2022. The Committee notes that, in 2017, the Parliament of Puntland State enacted new Penal and Criminal Procedure Codes as well as a Trafficking in Persons Law, with the assistance of the International Organization for Migration (IOM). It further notes that, according to a report published in 2020 by the ILO, Somalia remains a source, transit, and destination country for men, women, and children exploited in forced labour and trafficking, with mixed flows en route to Europe through the Sudan and Libya (northern route), to and from the Gulf countries (eastern route), or towards South Africa (southern route). Somali women are taken to the Middle East where they are exposed to domestic servitude and forced prostitution, while Somali men are subjected to forced labour, as herders and labourers in the Gulf States. The Committee notes that a Technical Task Force on human trafficking and smuggling was established at the federal level in 2016, in order to develop strategies to implement migration-related policies and legislation; programmes to aid border control and prevent irregular migration; and measures to enhance the investigation and prosecution of trafficking and smuggling. However, it appears that the terms of reference of the task force are still being developed and it has been meeting infrequently (Country report for Somalia, An assessment of labour migration and mobility governance in the IGAD region, 2020, pp. 15, 20-21 and 25-26). The Committee requests the Government to provide detailed information on the measures taken, both at Federal and Federal member States levels, in order to: (i) strengthen the legal framework through the adoption of specific provisions explicitly defining and punishing trafficking in persons for both sexual and labour exploitation; (ii) enhance the capacities of law enforcement bodies to identify situations of trafficking and prosecute perpetrators; and (iii) provide victims with adequate protection. It also requests the Government to provide information on the activities of the Technical Task Force on human trafficking and smuggling.

3. Vulnerable situation of internally displaced persons to the exaction of forced labour and trafficking. The Committee notes that, according to the United Nations High Commissioner for Refugees (UNHCR) Fact Sheet of March 2022, Somalia has one of the largest population of internally displaced persons (IDPs) in the world, being estimated at 2.95 million persons, representing about 20 per cent of the whole population. In its 2021 final report to the UN Security Council, the panel of Experts on Somalia, highlighted that 537,000 persons had fled their homes between January and July 2021 alone, with conflict-related displacement accounting for over 70 per cent of the cases. The panel of Experts also indicated that the cases documented show an aggressive campaign of forced displacement inflicted by Al-Shabaab extremists upon communities, at times as collective punishment (S/2021/849, 6 October 2021, Annex 5.1). The Committee notes that, in the framework of the Social Protection Policy of 2019, the Government acknowledges that IDPs face greater risk of trafficking in persons. It further notes that the National Policy on Refugee-Returnees and Internally Displaced Persons adopted by the Government in November 2019 specifically aims at the protection of IDPs during their displacement, in particular against sexual exploitation and forced labour. In that regard, the Committee notes that, in its 2019 report to the UN Committee on the Rights of the Child, the Government indicated that the National Commission for Refugees and IDPs has been established to address their specific needs (CRC/C/SOM/1, 16 October 2019, para. 296).

While recognizing the complexity of the situation prevailing on the ground and the presence of armed groups and armed conflict in the country, the Committee requests the Government to take the necessary measures to ensure that internally displaced persons are fully protected against trafficking in persons and forced labour. It requests the Government to provide information on the measures implemented to that end, in particular in the framework of the National Policy on Refugee-Returnees and Internally Displaced Persons, as well as on any activities implemented by the National Commission for Refugees and Internally Displaced Persons.

4. Imposition of penal sanctions. The Committee notes that several provisions of the Penal Code criminalize forced labour and slavery practices. More particularly: (1) sections 455 and 456 criminalize slavery or a similar condition and establish penalties of five to 20 years of imprisonment; (2) section 457 criminalizes the transferring, disposing, taking possession, or holding of a person and establishes penalties of three to 12 years of imprisonment; (3) section 464 criminalizes forced labour and establishes penalties of six months to five years of imprisonment and a fine; and (4) section 408(1) criminalizes compelled prostitution by a person through violence or threats, and establishes penalties of two to six years imprisonment.

It further notes that, in the framework of its ninth National Development Plan for 2020–2024, the Government highlights as a key challenge the fact that justice and the police are deemed insufficiently effective to realize and protect the rights of the population. While the justice sector encompasses the traditional xeer system, sharia law and a formal legal system, xeer is the dominant systemin providing accessible dispute resolution, due to the lack of the formal justice system. However, vulnerable groups are particularly affected as they suffer under the rules imposed by the traditional system. In that context, the Government indicates that the Judiciary Strategic Plan for 2019-2022 aims at securing and improving access to justice, in particular for women and internally displaced persons, including by: developing judiciary institutions at both Federal and Federal member States levels; (2) enhancing the capacity of judges, public attorneys, prosecutors and judicial officials; as well as (3) reforming, modernizing and delivering an effective alternative dispute resolution system (pp. 165 and 172–175).

The Committee requests the Government to continue to provide information on the measures taken, including in the framework of the Judiciary Strategic Plan for 2019-2022, in order to: (i) develop the formal justice system at both Federal and Federal member States levels so as to enhance access to justice, including for vulnerable groups such as women and internally displaced persons; (ii) strengthen the capacity of law enforcement officials, including by raising awareness of the legal provisions criminalising forced labour, slavery or a similar condition; and (iii) ensure the imposition of effective criminal penalties on perpetrators. The Committee requests the Government to provide information on the number of cases of forced labour and slavery or a similar condition investigated and prosecuted, the number of convictions handed down and the nature of the penalties imposed.

Articles 1(1) and 2(1). Freedom of members of the armed forced to leave their employment. The Committee previously noted that, pursuant to section 51 of the Civil Service Law No. 5 of 2 February 1980, a civil servant can request resignation by submitting it to his chief, who can reject the resignation on the basis of general interest and if the service of the civil servant is vital for ongoing operations. A civil servant who leaves his or her post after the rejection of his or her resignation is liable to sanctions, including imprisonment for a year. The Committee requested the Government to take steps in order to permit civil servants to resign from their employment upon giving reasonable notice of their intent to do so.

The Committee notes that a draft Civil Service Law was elaborated in order to revise the Law No. 5 of 1980 and that section 43.1.2 of the draft Law provides that civil servants are allowed to request resignation upon a 60-days’ notice. The Committee notes that the draft Civil Service Law No. 11 was approved by Cabinet in 2018 and is currently pending approval by Parliament. Welcoming the provisions of section 43.1.2 of the draft Civil Service Law No. 11, the Committee requests the Government to provide information on the adoption of the law, as well as a copy of the new legislation once adopted.