Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Forced Labour Convention, 1930 (No. 29) - Madagascar (Ratification: 1960)
Protocol of 2014 to the Forced Labour Convention, 1930 - Madagascar (Ratification: 2019)

The Committee notes the observations made by the General Confederation of Workers’ Unions of Madagascar (CGSTM) received on 4 September 2012 and the Government’s reply to these observations.

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. In its previous comments, the Committee noted the adoption of Act No. 2007-038 of 14 January 2008 amending and supplementing certain provisions of the Penal Code on action to combat trafficking and sexual tourism. The Act defines trafficking in persons for purposes of exploitation (section 333ter of the Penal Code) and categorizes it as a penal offence (section 333quater). The Committee observed however that although the law establishes penalties for prostitution and sexual exploitation, it does not do so for trafficking in persons for labour exploitation. The Committee asked the Government to specify the provisions of the legislation under which individuals have been prosecuted, particularly in cases of trafficking in persons for the exploitation of labour, and the nature of the penalties imposed.

The Committee notes the Government’s indication that Act No. 2007–038 of 14 January 2008 to combat trafficking and sexual tourism has incorporated ten new sections; section 333ter(3) gives a much broader definition of exploitation, which includes unremunerated work, forced labour or services, domestic work etc., and section 334bis et seq. concerns trafficking in persons for labour exploitation.

While noting this statement, the Committee nonetheless observes that the abovementioned Act does not specifically provide for penalties for trafficking in persons for labour exploitation. The penalties under sections 334ter, quater and quinto concern the recruitment, training or corruption of an individual for the purposes of prostitution, sexual exploitation and sexual tourism.

The Committee notes that the Working Group on the Universal Periodic Review recommended to the Government in its report, inter alia: to institute a process enabling law enforcement officials to document human trafficking cases and refer victims to assistance services; to increase efforts to raise public awareness about trafficking for labour exploitation; and to prosecute public officials suspected of trafficking-related complicity (A/HRC/14/13, conclusions, paragraph 44, March 2010).

The Committee also notes that the Committee on the Rights of the Child (CRC) in its concluding observations expresses its great concern at the high level of trafficking in persons, including children, from Madagascar to neighbouring countries and the Middle East for purposes of domestic servitude and sexual exploitation. The CRC also expresses concern that the Act No. 2007-038 of 2008 to combat trafficking in persons is not sufficiently implemented and, in particular, that it has not resulted in any known convictions to date (CRC/C/MDG/CO/3-4, paragraph 63, 8 March 2012).

In this respect, the Committee requests the Government to indicate the measures taken in practice to combat trafficking in persons, as well as the legal provisions enabling the authorities to prosecute those responsible for trafficking in persons for labour exploitation and convict them. It is asked to send a copy of those legal rulings that have been handed down in this respect. Furthermore, the Committee asks the Government to indicate the measures taken or envisaged to make the public aware of the phenomenon of trafficking in persons and to protect victims by facilitating their social rehabilitation.

Article 2(2)(a). National service. For many years, the Committee has been emphasizing the need to bring Ordinance No. 78-002 of 16 February 1978, which sets forth general principles of national service, into conformity with the Convention. The Ordinance defines national service as the compulsory participation of young Malagasies in national defence and in the economic and social development of the country. The Committee recalled that making young people participate in developmental work as part of compulsory military service is incompatible with the Convention, and it requested the Government to take the necessary steps to bring the legislation in line with the Convention.

The Committee notes from the observations submitted by the General Confederation of Workers’ Unions of Madagascar (CGSTM) that the Government has not adopted any measures to bring Ordinance No. 78-002 of 16 February 1978 concerning the general principles of national service into conformity with the Convention.

The Committee notes the Government’s explanations that there are two forms of national service: national service in the armed forces and national service outside the armed forces. Ordinance No. 73-004 of 9 February 1973 introduced national service outside the armed forces which is voluntary and reserved for young women mostly employed in public establishments. Ordinance No. 78-002 of 16 February 1978 confirms the voluntary nature of this service. As regards national service in the armed forces, this only concerns young men who are integrated according to the needs of both forces: the military and the national gendarmerie (for example, secretary, farmer, construction worker, scrap merchant, mechanic, etc.). The Government adds that given the country’s political and social situation (unemployment, poverty, idleness), young minors (17 years of age) may volunteer for the armed forces provided they fulfil certain requirements.

While noting the voluntary nature of national service outside the armed forces, the Committee nevertheless emphasizes that in view of the fact that national service in the armed forces is mandatory, it is important that work carried out by young persons called into this service should be of a purely military nature and not involve them in activities to promote the country’s economic and social development. The Committee also refers to the comments it has made with respect to the Abolition of Forced Labour Convention, 1957 (No. 105).

Consequently, the Committee hopes that the Government will take the necessary measures to bring its legislation in line with the Convention, in particular by ensuring that the services required under the legislation on the national service are of a purely military nature and do not include activities to promote the country’s economic and social development.

Article 2(2)(c). Prison work. Hiring of prison labour to private enterprises. In its previous comments, the Committee noted that Decree No. 2006-015 on the general organization of prison administration, adopted on 17 January 2006, maintains the possibility of hiring out prison labour to private enterprises. It requested the Government to provide further information on the manner in which the free and informed nature of the consent of detainees hired to private enterprises is guaranteed.

The Committee takes note of Circular No. 418-MJ/SG/DGAP of 4 August 2006 on the work of detainees enclosed with the Government’s report, which contains provisions abolishing compulsory work for prisoners and introducing the concept of voluntary work (paragraph 1). It also notes that detainees’ work is carried out under three schemes: general services, the lease system and penal camps. In the event of hiring out detainees under the lease system, a contract must be concluded between the contractor and the head of the prison. The contract must indicate the nature of the work, the duration of the contract and the amount of pay, and the administration must transfer the total remuneration paid by the contractor to the registered account of the detainees employed under the arrangement.

In this regard, the Committee notes the observations of the CGSTM, stating that the Government has not provided information on the measures taken to ensure that detainees hired out to private entities give their consent, as provided for by Circular No. 418-MJ/SG/DGAP of 4 August 2006 on the work of detainees.

The Committee takes note of this information and requests the Government to indicate how, in practice, convicted persons give their formal, free and informed consent to work for private entities. The Committee also requests the Government to send copies of the contracts concluded between the prisons and contractors using penal labour in its next report.