Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

Minimum Age Convention, 1973 (No. 138) - Democratic Republic of the Congo (Ratification: 2001)

Article 1 of the Convention and Part V of the report form. National policy and application of the Convention in practice. In its previous comments, the Committee noted that, according to ILO statistics, around 1,895,000 children aged between 10 and 14 years were economically active in the year 2000. Of this number, 1,003,000 were boys and 892,000 were girls. It also noted that the Committee on the Rights of the Child, in its concluding observations in July 2001 (CRC/C/15/Add.153, paragraph 66), expressed concern at the prevalence of child labour, especially in informal sectors which frequently fall outside the protections afforded by domestic legislation. The Committee on the Rights of the Child recommended the Government to take measures to enforce domestic legal protections in both the formal and informal economies. The Committee further noted that the labour inspection service is not operational in the country. Moreover, according to the Government’s initial report submitted to the Committee on the Rights of the Child in August 2000 (CRC/C/3/Add.57, paragraph 196), given the current disastrous economic situation, where employment in the informal economic sector is the only answer for the majority of the population, a number of parents tolerate or even send their children to do work which they are forbidden to perform by law. The Committee requested the Government to provide information on the measures adopted to re-establish the functioning of the labour inspection service and on the manner in which the Convention is applied in practice.

In its report, the Government indicates that, with a view to the abolition of child labour, the Ministry of Employment, Labour and Social Insurance is endeavouring to ensure the operation of the National Committee to Combat the Worst Forms of Child Labour. Once it is in operation, the National Committee will formulate a national strategy for the abolition of child labour and its worst forms. In the context of this strategy, national programmes of action will be formulated, particularly to identify child labour and its worst forms and, with the assistance of the labour inspectorate, to supervise and penalize enterprises that have recourse to child labour. The Government adds that it is redoubling its efforts to make the action of labour inspectors and controllers more effective. Finally, it notes that child labour persists throughout the country, among others in the mining sector.

The Committee appreciates the information provided by the Government on the measures that it plans to take for the abolition of child labour and considers that these measures are an affirmation of its political will to develop strategies to combat this problem. However, while noting the instability in the country, particularly in view of the continued conflict, the Committee expresses concern at the persistence of child labour in practice. It therefore firmly requests the Government to take the necessary measures to ensure that the National Committee to Combat the Worst Forms of Child Labour is operational in the very near future and that it formulates the national strategy on the abolition of child labour and its worst forms. It also requests the Government to provide information on any progress achieved in this respect and to transmit a copy of the national strategy once it has been formulated. Finally, the Committee requests the Government to provide information on the manner in which the Convention is applied in practice including, for example, statistical data disaggregated by gender and age category on the nature, extent and trends of work by children and young persons under the minimum age specified by the Government when ratifying the Convention and extracts from the reports of the inspection services.

Article 2, paragraph 1. Scope of application. (i) Own-account work. The Committee noted previously that Act No. 015/2002 of 16 October 2002 issuing the Labour Code (hereinafter the Labour Code) applies solely to a labour relationship. It reminded the Government that the Convention is applicable to all branches of economic activity and that it covers all types of employment and work, whether or not they are carried out on the basis of a subordinate labour relationship, and whether or not they are paid. The Committee requested the Government to provide information on the manner in which children who are not bound by a labour relationship benefit from the protection afforded by the Convention. In this respect, the Government indicates that, once the National Committee to Combat the Worst Forms of Child Labour is operational, it will formulate programmes of action with the objectives of, among others, identifying and denouncing child labour and its worst forms, preventing the engagement of children in work and paying special attention to vulnerable children. In view of the information referred to above concerning the situation of children working in the informal economy, the Committee expresses the firm hope that the National Committee to Combat the Worst Forms of Child Labour will very soon be in a position to formulate programmes of action and that, in the context of their implementation, measures will be taken to ensure that children who are not bound by a labour relationship, such as those working on their own account or in the informal economy, benefit from the protection envisaged in the Convention. In this respect, it requests the Government, in the context of the adoption of measures to improve the work of labour inspectors and controllers, to envisage the possibility of adapting their functions so that they can secure the protection set out in the Convention for these children. It requests the Government to provide information on this subject.

(ii) Seafarers. With reference to its previous comments, the Committee once again requests the Government to provide a copy of Legislative Ordinance No. 66-98 of 14 March 1966 issuing the Maritime Navigation Code.

Article 2, paragraph 3. Age of completion of compulsory schooling. The Committee noted previously that, according to the Government’s initial report submitted to the Committee on the Rights of the Child in August 2000 (CRC/C/3/Add.57, paragraphs 149, 156 and 157), section 115 of Act No. 86/005 of 29 September 1986 respecting national education (hereinafter Act No. 86/005 of 29 September 1986) makes schooling compulsory for girls and boys until they have reached the age of 15 years. However, the Government indicated that this Act never entered into force. Furthermore, according to the Government, primary education is free but, as a result of the aggravation of the economic crisis, children, and particularly boys, drop out of school from the ages of 12 or 13 to seek their subsistence by doing whatever they can. The Committee also noted that the Committee on the Rights of the Child, in its concluding observations of July 2001 (CRC/C/15/Add.153, paragraphs 60 and 61), expressed its concern at the high number of children who never attend school or who drop out early from their formal education. The Committee on the Rights of the Child urged the Government to adopt and implement legislation establishing a minimum age for the completion of compulsory schooling and to ensure that primary school and, in so far as possible, secondary education, is free of charge.

In its report, the Government indicates that it is aware that the school attendance rate is low in the country. The rate is around 40 per cent of all children of school age. Against this background, it adopted Order No. 082 of 15 May 2006, defining priorities in the field of education. The Government adds that the persistence of areas of insecurity constitutes a barrier to education of children, not only due to the constant movement of families, and therefore children, but also the destruction of school infrastructure through armed conflict, as was the case in 2005 in the north of the province of Katanga, in Ituri, Beni and the province of north Kivu. With the assistance of UNICEF and the United Nations Office for the Coordination of Humanitarian Affairs, assistance has been provided to the damaged schools. In this context, 75 classrooms have been refurbished and over 12,000 displaced schoolboys and girls have benefited from an emergency support programme for education. Furthermore, in the context of the goal of Education For All, the country has established projects, including the Support Project for the Recovery of the Educational Sector (PARSEC) and the Support Project for the Educational Sector (PASE).

In this respect, the Committee takes due note of the measures adopted by the Government to increase the school enrolment rate and reduce the school drop-out rate, while according special attention to girls. The Committee notes however that, according to the Education For All Global Monitoring Report 2008, published by UNESCO and entitled “Education For All by 2015: Will we make it?”, in view of the lack of data, caused in particular by the conflict which persists in the country, it was impossible to make projections for the achievement of the objectives established by the Education For All programme for the Democratic Republic of the Congo by 2015. However, the study indicates that there are major disparities between the two sexes in relation to the gross school attendance rate in primary education, to the detriment of girls, who have to repeat years more often than boys. The study indicates in this respect that the objective of gender parity is at risk of not being achieved in 2015 in the country.

While recognizing the efforts made by the Government to improve the situation, the Committee expresses deep concern at the education situation in the country, particularly with regard to the low rate of school attendance and the high rate of students repeating years, particularly in the case of girls. It observes that poverty is one of the primary causes of child labour and that, when combined with a deficient educational system, it prevents the development of the child. Considering that compulsory education is one of the most effective means of combating child labour, the Committee firmly requests the Government to spare no effort to improve the operation of the education system in the country and to take measures to allow children to attend compulsory basic education or to be integrated into an informal school system. In this respect, it requests the Government to provide information on the measures adopted in the context of the implementation of Order No. 082 of 15 May 2006, which determines priorities in the field of education, with a view to setting an age of completion of compulsory schooling, increasing the school attendance rate and reducing the school drop-out rate, while preventing children under 14 years from working and according special attention to girls. The Committee requests the Government to provide information on the results achieved.

Article 3, paragraphs 1 and 2. Minimum age for admission to hazardous types of work and the determination of such types of work. In its previous comments, the Committee noted the information provided by the Government that Ministerial Order No. 68/13 of 17 May 1968 establishing the working conditions of women and children (hereinafter Order No. 68/13 of 17 May 1968) remains in force while awaiting the adoption of new measures to give effect to the Labour Code of 2002. The Committee notes with interest the adoption of Ministerial Order No. 12/CAB/MIN/TPS/045/08 of 8 August 2008 determining the working conditions of children (hereinafter the Ministerial Order of 8 August 2008) which prohibits the employment of young persons under 18 years of age (section 1) and contains a detailed list of the types of hazardous work that are prohibited for young persons under 18 years of age (sections 9–15).

Article 3, paragraph 3. Admission to hazardous work from the age of 16 years. With reference to its previous comments, the Committee notes that section 10(2) of the Ministerial Order of 8 August 2008 provides that young persons between 16 and 18 years of age may not carry, drag or push, either within or outside the customary workplace, loads of a weight higher than the following maximum levels: (1) occasional manual transport of loads: boys (15kg) and girls (10kg); transport on barrows (including the barrow): boys (35kg) and girls (25kg); transport by three- or four-wheeled vehicles (including the vehicle): boys (50kg) and girls (35kg); and transport on small trucks on flat rails (including the truck) and for up to a maximum of four hours a day: boys (400kg) and girls (250kg).

The Committee reminds the Government that, under the terms of Article 3, paragraph 3, of the Convention, national laws or regulations or the competent authority may, after consultation with the organizations of employers and workers concerned, where such exist, authorize employment or work as from the age of 16 years on condition that: (a) their health, safety and morals are fully protected; and (b) they have received adequate specific instruction or vocational training in the relevant branch of activity. The Committee observes that the Ministerial Order of 8 August 2008 does not contain a provision guaranteeing compliance with the two conditions referred to above. It also observes that, where a government makes use of the flexibility clause envisaged in Article 3, paragraph 3, of the Convention, it has to take measures to ensure compliance with the two conditions established by this provision of the Convention. The Committee therefore requests the Government to provide information on the measures adopted or envisaged to ensure that the performance of hazardous types of work by young persons between 16 and 18 years of age, especially under the terms of sections 10 and 12, is only authorized in conformity with the provisions of Article 3, paragraph 3, of the Convention.

Article 6. Apprenticeship and vocational training. With reference to its previous comments, the Committee takes due note of the detailed information provided by the Government concerning the regulation of apprenticeship in the country. It requests the Government to provide a copy of Ordinance No. 71-055 organizing vocational training.

Article 7. Light work. In its previous comments, the Committee noted the Government’s indication that Departmental Order No. 28/75 of 30 October 1975, which includes a list of light and healthy work authorized for persons between the ages of 14 and 16 years, will be revised. The Committee notes that section 17 of the new Ministerial Order of 8 August 2008 establishes a list of light and healthy types of work authorized for persons under 18 years of age, including for example: (1) the harvesting of seeds, leaves and fruit with the exception of bananas and palm nuts, provided that the harvest is carried out at ground level; (2) the manual husking of fruits and seeds, the sorting of vegetable products; (3) the making of ties for market gardens; (4) basket work; (5) the herding of small animals and poultry; (6) surveillance by guards, doorkeepers and sentries; (7) the sale of periodicals and hawking not involving the transport of heavy goods; and (8) the types of work that shall be authorized by the competent inspector. The Committee observes that section 17 of the Ministerial Order of 8 August 2008 does not establish the minimum age from which a child may perform light work, but allows all young persons under 18 years of age to be engaged in these types of work. It also notes that the Ministerial Order of 8 August 2008 does not determine the conditions of employment under which light work may be performed.

The Committee reminds the Government that, under the terms of Article 7, paragraphs 1 and 4, of the Convention, national laws or regulations may permit the employment or work of persons 12 to14 years of age on light work which is: (a) not likely to be harmful to their health or development; and (b) not such as to prejudice their attendance at school, their participation in vocational orientation or training programmes approved by the competent authority or their capacity to benefit from the instruction received. It further recalls that, in addition to the activities in which light work may be authorized, Article 7, paragraph 3, of the Convention provides that the competent authority shall prescribe the number of hours during which and the conditions in which such employment or work may be undertaken. The Committee therefore requests the Government to provide information on the measures adopted or envisaged to ensure that only persons between 12 and 14 years of age perform light work, in accordance with Article 7, paragraph 1, of the Convention. It also requests the Government to provide information on the measures adopted or envisaged to prescribe the number of hours during which and the conditions of employment in which light work may be undertaken.