Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

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

Article 1(a) of the Convention. Imposition of prison sentences involving compulsory labour as punishment for expressing political views or views ideologically opposed to the established political, social or economic system. For a number of years, the Committee has been drawing the Government’s attention to certain provisions of the legislation, under which penalties of imprisonment (which involve compulsory prison labour pursuant to section 181 of Act No. 10-2017/AN, of 10 April 2017, on the prison system and section 86 of Order No. 642 APAS of 4 December 1950 issuing the prison regulations), may be imposed in situations covered by Article 1(a) of the Convention. More particularly, the Committee referred to the following provisions:

• – attack on the honour or sensibility of certain persons exercising public authority (sections 178 and 180 of the Penal Code), or against the authority of the judicial system or its independence (section 179 of the Penal Code), which constitutes an insult;
• – slurs upon the honour and dignity of individuals, insults, slander and defamation (sections 361–364 of the Penal Code);
• – similar provisions contained in sections 114–123 of Law No. 56/93/ADP of 30 December 1993 on the Information Code.

In its report, the Government indicates that persons who express political views or peacefully oppose the established political, social or economic system, in accordance with the national legislation in force, do not commit an offense and cannot be subject to a criminal penalty. In that regard, the Committee notes with interest that Law No. 057-2015/CNT, of 4 September 2015, on the legal regime for print media in Burkina Faso, which abrogates the Information Code, has removed prison penalties for the offences relating to attack on honour, insult and defamation (sections 114 et seq.).

The Committee also notes the adoption of a new Penal Code (Act No. 025-2018/AN of 31 May 2018). It observes that the provisions of the Penal Code to which it referred previously (relating to attacks on the honour, insults, slander and defamation) have been integrally reproduced under sections 352-1 to 352-4 and 524-1 to 524-4 of the new Penal Code. The Committee notes however that section 524-13 of the Penal Code provides that sections 524 et seq. shall not apply to natural or legal persons covered by the legal regime for print media, online media and audiovisual media.

The Committee welcomes the progress made in the revision of the legislation. It regrets, however, that the Government did not take the opportunity of the revision of the Penal Code to address the long standing issues raised by the Committee in relation to the provisions establishing penalties of imprisonment in situations covered by Article 1(a) of the Convention, that can still be imposed on citizens who are not covered by the legal regime for print media, online media and audiovisual media. It further notes that section 354-7 of the Penal Code provides that participants or organizers of an «illicit demonstration», defined by section 354-6 as undeclared, incompletely or inaccurately declared or banned demonstration, are now liable to imprisonment involving compulsory prison labour.

The Committee recalls that Article 1(a) of the Convention prohibits the use of compulsory labour, including compulsory prison labour, as a punishment for persons who hold or express political views or peacefully oppose the established political, social or economic system. The Committee emphasizes that the range of activities which must be protected, under this provision, from punishment involving compulsory labour, includes the freedom to express political or ideological views (which may be exercised orally or through the press or other communications media), as well as various other generally recognized rights, such as the right of association and of assembly, through which citizens seek to secure the dissemination and acceptance of their views (see General Survey of 2012 on the fundamental Conventions, paragraph 302). The Committee therefore requests the Government to pursue its efforts to review the abovementioned provisions of the Penal Code, so that no penalty of imprisonment entailing compulsory labour can be imposed on persons who express political views or peacefully oppose the established political, social or economic system. Pending such revision, the Committee requests the Government to provide information on the application of sections 352-1 to 352-4; 354-7; 524-1 to 524-4 of the Penal Code, in practice, in particular on the number of persons convicted on the basis of these provisions, the nature of the charges brought and the sanctions imposed.

Article 1(b). Mobilization and use of labour for purposes of economic development. National service for development. The Committee previously noted that, pursuant to Decrees Nos 98-291/PRES/PM/DEF and 99-446/PRES/PM on the organization and functioning of national service for development (SND), any citizen of Burkina Faso between 18 and 30 years of age may be called up to participate in the national service for development. This service is accomplished in two phases: a training phase, during which those called up receive what is essentially civic and patriotic training and acquire the rudiments of vocational training in priority sectors for development; and a production phase, in which they make their contribution to the socio-economic development of the country in various sectors. The time spent in national service for development is considered time spent in military service, thereby releasing the citizen from any other military obligation. The Committee requested the Government to take the necessary measures to ensure that the legislation explicitly establishes the voluntary nature of participation in national service for development.

The Government reiterates that the SND is a civic service derived from article 10 of the Constitution. It adds that young people who meet the age requirements, hold general or technical education diplomas, a driving license or have dropped out of school can do it voluntarily, and are made available to administrative structures or training centres. The Committee takes note of this information. It however again points out that there is no indication in the legislation establishing and regulating the SND that persons who have been called up participate voluntarily in this service. The Committee further notes that, on 29 January 2021, the Council of Ministers adopted three new decrees establishing the statutes and functioning of the SND and that, according to the minutes of the Council of Ministers, these new regulations establish a 90 days mandatory period of the SND for all citizens of 18 to 30 years. The Committee again requests the Government to take the necessary measures to ensure that the legislation explicitly establishes the voluntary nature of participation in national service for development and to provide information on any progress made in this regard. It further requests the Government to provide a copy of Decrees Nos 2021-0196/PRES/PM/MDNAC/MINEFID, 2021-0197/PRES/PM/MINEFID and 2021-0198/PRES/PM/MDNAC/MINEFID establishing the statutes and functioning of the national service for development.

Article 1(d). Criminal penalties for participation in a strike. In its previous comments, the Committee referred to section 386 of the Labour Code, under which the exercise of the right to strike shall on no account entail the occupation of the workplace or its immediate surroundings, otherwise the criminal sanctions established by the legislation in force shall apply. It requested the Government to amend the Labour Code in order to ensure that persons who participate peacefully in a strike cannot incur any criminal penalties which could result in the imposition of compulsory prison labour.

The Committee notes the Government’s indication that the revision of the Labour Code is still ongoing and reformulation proposals have been made in order to take into account the recommendations made by the Committee. The Government also indicates that, pursuant to section 213-4 of the Penal Code, community work cannot be imposed on convicted persons without their consent. The Committee observes that the Government does not provide information on the nature of criminal penalties that may be applied to persons who go on strike, pursuant to section 386 of the Labour Code nor on the relevant legal provisions that would be applied. It notes that, according to the wording of section 386 of the Labour Code, prison sentences could be applied “as criminal penalties” and recalls in that regard that prison sentences involve an obligation to work according to section 181 of the Prison System Act. Referring to its 2019 observation under the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), the Committee trusts that the Government will take the necessary measures within the process of revision of the Labour Code to amend section 386 so as to ensure that, in conformity with Article 1(d) of the Convention, persons who participate peacefully in a strike are not liable to penal sanctions which could involve compulsory labour. In the meantime, it requests once again the Government to provide information on the legal provisions establishing the nature of criminal penalties that may be applied to persons who go on strike, pursuant to section 386 of the Labour Code.