Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Democratic Republic of the Congo (Ratification: 2001)

Articles 1 and 2 of the Convention. Protection of workers against discrimination on all grounds covered by the Convention in all aspects of employment and occupation. Legislation. Public and private sectors. As regards the civil service, the Committee notes with interest the introduction into Act No. 16/013 of 15 July 2016 issuing the staff regulations for state civil servants which repealed the previous law (Act No. 81/003 of 17 July 1981) of general provisions on discrimination, whereby “employees shall be able to perform without discrimination the jobs to which they are assigned” (section 19) and “there shall be no discrimination between candidates on grounds other than those specified or authorized by the legislation” (section 87). However, the Committee notes with regret that the Government has not taken the opportunity afforded by the adoption of Act No. 16/010 of 15 July 2016 (which amends and supplements Act No. 015-2002 that issues the Labour Code), to incorporate into the Code provisions defining and prohibiting any form of discrimination based as a minimum on all the grounds set out in the Convention and covering all aspects of employment and occupation, including recruitment. In this regard, it notes the Government’s indications that even though no new revision of the Labour Code is envisaged for the moment, it proposes to include the definition of direct and indirect discrimination in employment and occupation in national legislation, in conformity with the Convention. The Committee once again asks that the Government adopt the necessary measures in the near future to ensure that all direct or indirect discrimination, based as a minimum on all the grounds set forth in the Convention and covering all aspects of employment and occupation, is defined and explicitly prohibited by the Labour Code. The Committee asks the Government to provide information on any procedure established to deal with cases of discrimination against public employees or candidates for a post in the civil service and on any case of discrimination which has been reported and dealt with.

Article 1(1)(a). Discrimination based on sex. Legislation. In its previous comments, the Committee urged the Government to take the necessary steps to address the inferior position of women in society. With regard to the legislation, the Committee underlined the discriminatory nature of sections 448 and 497 of Act No. 87/010 of 1 August 1987 issuing the Family Code, and section 8(8) of Act No. 81/003 of 17 July 1981 issuing the staff regulations of state civil servants, under which a married woman is obliged to obtain permission from her husband in order to work. The Committee notes with satisfaction that: (i) further to the adoption of Act No. 008 of 15 July 2016 amending the Family Code, section 448 has been amended and now provides that “spouses must agree on all legal acts in which they assume an obligation to perform a certain task” and, according to the new section 449 “in the event of a persisting disagreement, the spouse who suffers prejudice can seize the tribunal”; and furthermore, section 497, on goods the woman has acquired through the exercise of a profession, has been repealed; and (ii) further to the adoption of Act No. 16/013 of 15 July 2016 issuing the staff regulations for state civil servants, section 8(8) of the former regulations has been repealed and consequently the husband’s permission is no longer required in order for a woman to take up work (section 5 of the new regulations).

Moreover, the Committee notes with interest the adoption of Act No. 15/013 of 1 August 2015 on the implementation of women’s rights and gender parity, which aims, inter alia, to eliminate all forms of discrimination against women and to protect and promote their rights in all areas, inter alia, in the social, economic, political, administrative, cultural, judicial and safety-related spheres. The above-mentioned Act establishes the general legal framework enabling the adoption of specific measures to combat discrimination towards women and to promote gender equality. As regards discrimination, the Committee notes that the Act contains a definition of discrimination which reflects that in Article 1(1)(a) of the Convention. The Act also explicitly states that “discrimination between workers on the basis of sex, particularly on the grounds of marital status or family situation, or on the grounds of pregnancy is prohibited” (section 20). The Committee notes that “… the prohibition of all discrimination applies to any harmful practice connected in particular with recruitment, assignment of tasks, working conditions, remuneration and other social benefits, promotion and termination of the employment contract” (section 21). According to the Act, the State must take “steps to eliminate any practice that is harmful to the rights of women in respect of the ownership, management, administration, enjoyment and disposition of property” (section 9). It also provides that the State must take “appropriate measures to modify patterns and models relating to the socio-cultural behaviour of women and men, through education of the general public, in order to eliminate all harmful cultural practices and practices based on the notion of the inferiority or superiority of either sex or based on stereotypical assumptions concerning the roles of women and men” (section 24). Further, it prohibits all gender stereotypes or preconceptions at all levels of education, particularly in educational guidance and career choices (section 11). The Committee also notes that the United Nations Human Rights Committee, having emphasized the persistence of gender stereotyping in its recent concluding observation, asked the Government to take steps “to strengthen education and awareness-raising initiatives for the general public, including traditional leaders, to combat traditional practices that are discriminatory and harmful to women and to eliminate gender stereotypes on the subordination of women to men and on the respective roles and responsibilities of women and men in the family and society” (CCPR/C/COD/CO/4, 30 November 2017, paragraphs 15 and 16). Considering that all these legislative provisions constitute significant progress in combating discrimination against women in education, vocational training and guidance, employment and occupation, the Committee asks the Government to adopt specific measures giving effect to Act No. 15/013 of 1 August 2015 on the implementation of women’s rights and gender parity, in order to eliminate all forms of discrimination, particularly measures aimed at eliminating all practices based on the notion of the inferiority or superiority of either sex, stereotypical notions on the roles of women and men, and gender stereotypes relating to education and educational guidance. The Government is also asked to provide detailed information on the steps envisaged to eliminate all practices that are harmful to women’s rights in relation to the ownership, management, administration, enjoyment and disposition of property, as provided for in the Act of 2015.

Discrimination based on sex. Leave in the civil service. The Committee notes with regret that the Government has not taken the opportunity afforded by the adoption of Act No. 16/013 of 15 July 2016 issuing the staff regulations for state civil servants (which repeals the former regulations issued by Act No. 81/003 of 17 July 1981) to amend section 25(2), under which female employees who have taken maternity leave cannot claim their right to full annual leave during the same year. It observes that section 30 of the new regulations reproduces section 25(2) of the former regulations in an identical form. The Committee asks the Government to take the necessary steps to amend section 30 of Act No. 16/013 of 15 July 2016 in order to abolish all discrimination on the basis of sex in respect of leave in the public service.

Discrimination based on race or ethnic origin. Indigenous peoples. For a number of years, the Committee has highlighted the marginalization and discrimination of indigenous “pygmy” peoples in relation to the enjoyment of their economic, social and cultural rights, particularly with regard to access to education, health and the labour market, and has urged the Government to take measures to guarantee equality of opportunity and treatment for indigenous peoples in employment and occupation. The Committee has in particular, referred to the concluding observations of the United Nations Committee on the Elimination of Racial Discrimination (CERD). The Committee notes with regret that the Government indicates once again that indigenous peoples benefit from all the rights guaranteed by the Constitution and that it refers to the Forestry Code of 29 April 2002 (sections 36–44), which, the Government states, guarantees to indigenous peoples and local communities the right to benefit fully from their forest resources and from socio-economic infrastructures that may result, where applicable, from a forestry concession contract concluded between the State and a logging company. Furthermore, the Committee observes that the Government does not mention anymore the bill aiming at ensuring the protection of indigenous peoples, which, according to its previous report, was under examination by Parliament. It also notes that the UN Human Rights Committee (HRC) has expressed concern at: “(a) the overall situation of insecurity and vulnerability of pygmy communities; (b) reports that these communities are discriminated against, particularly in the areas of health care and education; and (c) the State party’s position that indigenous peoples are subsumed under the category of “local communities” in legislation, particularly in the Forestry Code”. The HRC has also expressed concern at the delay in adopting the law on the rights of indigenous peoples and deplored the serious human rights violations and forced displacement suffered by “pygmy” communities in the province of Tanganyika (CCPR/C/COD/CO/4, 30 November 2017, paragraphs 49 and 50). In its 2012 General Survey on the fundamental Conventions, the Committee indicates that it strongly encourages countries to assess the situation in employment and occupation of all ethnic groups in their country, in particular indigenous and tribal peoples, and in the discrimination faced by them, and to supply such information in their reports under article 22 of the Constitution (paragraph 772). It also recalls that a true policy of equality must also include measures to correct de facto inequalities of which certain categories of the population are victims and take into account their specific needs. The Committee therefore once again urges the Government to take measures without delay, including through legislation: (i) to combat prejudices and stereotypes of which indigenous peoples are victims and to raise other population groups’ awareness of their culture and way of life so as to promote equality of treatment and mutual tolerance; (ii) to allow indigenous peoples access, on an equal footing with other members of the population, to all levels of education, vocational training and employment, and to resources, particularly land, which enable them to carry out their traditional and subsistence activities; and (iii) to ensure that members of indigenous peoples employed in agriculture are treated on an equal footing with other members of the population in terms of conditions of employment, including remuneration. The Committee asks the Government to indicate whether it still plans to adopt a law to protect indigenous peoples and, if so, to provide detailed information on the progress made in the legislative process and the contents of the bill.

Article 1(1)(b). Legislation. Protection against discrimination. Dismissal. Recalling that section 62 of the Labour Code prohibits any dismissal on the grounds of race, colour, sex, marital status, family responsibilities, pregnancy, childbirth and the post-natal period, religion, political views, national extraction, social origin or ethnic group, the Committee notes with interest the incorporation of “real or perceived HIV/AIDS status” into this list of prohibited grounds, following the adoption of Act No. 16/010 of 15 July 2016 amending and supplementing Act No. 015-2002 issuing the Labour Code. The Committee asks that the Government provide information on any cases of dismissal based on the aforementioned grounds that have been dealt with by the labour inspectorate or the courts.

The Committee is raising other matters in a request addressed directly to the Government.