Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Abolition of Forced Labour Convention, 1957 (No. 105) - Democratic Republic of the Congo (Ratification: 2001)

Article 1(a) of the Convention. Imprisonment entailing compulsory labour imposed as a penalty for holding or expressing political views or views ideologically opposed to the established political, social or economic system. The Committee previously urged the Government to take the necessary steps to bring into conformity with the Convention certain provisions of the legislation under which activities which may come within the scope of Article 1(a) of the Convention are liable to incur criminal penalties (penal servitude) entailing compulsory labour (section 8 of the Criminal Code). The provisions in question are as follows:

• –Criminal Code, sections 74, 75 and 77: injurious allegations and insults; sections 136 and 137: contempt towards members of the National Assembly, the Government and custodians of authority or law enforcement officers; section 199bis and ter: dissemination of false rumours liable to alarm the population; section 209: dissemination of tracts, bulletins or leaflets of foreign origin or inspiration liable to harm national interests; section 211(3): display in public places of drawings, posters, engravings, paintings, photographs and all objects or images liable to disturb public order.
• –Act No. 96-002 of 22 June 1996 establishing arrangements for the exercise of freedom of the press, sections 73–76 of which refer to the Criminal Code for the definition and punishment of press-related offences.
• –Legislative Ordinance No. 25-557 of 6 November 1959 on penalties to be imposed for infringements of general measures.
• –Legislative Ordinances Nos 300 and 301 of 16 December 1963 on the punishment of offences against the head of State and foreign heads of State.

The Government indicates in its report that forced labour as a penalty established by the Criminal Code does not apply to the expression of political views or views ideologically opposed to the established political, social or economic system. Forced labour as a penalty is only imposed on persons guilty of the misappropriation of public funds. The Committee notes this information and recalls that among the penalties established by the Criminal Code, penal servitude (section 8 ) can entail compulsory labour and that the offences specified in the above-mentioned provisions of the legislation are liable to incur the penalty of penal servitude. The Committee is therefore bound to emphasize once again that the prohibition on imposing compulsory labour in the context of Article 1(a) of the Convention is not restricted to forced labour but applies to all work or service exacted from persons who hold or express political views or views ideologically opposed to the established political, social or economic system, including where this work takes the form of prison labour imposed on convicted persons.

Furthermore, the Committee notes with concern that the United Nations (UN) High Commissioner for Human Rights, in her report of 15 July 2021 on the human rights situation in the Democratic Republic of the Congo, refers to attacks and threats against journalists, human rights defenders and other civil society actors, and also the violent repression of some peaceful demonstrations and the placement of restrictions on fundamental freedoms. The High Commissioner adds that at least 433 persons were subjected to arbitrary arrest or unlawful and arbitrary detention following their exercise of their right to freedom of opinion and expression, peaceful assembly or association (A/HRC/48/47, paragraphs 3 and 10). The Committee also notes Resolution 2612 adopted by the UN Security Council on 20 December 2021, in which the Security Council welcomed the measures taken by the Government to release political prisoners and investigate any disproportionate use of force by security forces on peaceful protesters.

The Committee further notes the adoption on 14 October 2022 of the law amending Act No. 96/002 of 22 June 1996 establishing arrangements for the exercise of freedom of the press. It also notes that Bills are under consideration concerning access to information, public demonstrations, protection of human rights defenders, and non-profit associations. The Committee recalls that the activities which must be protected, under Article 1(a) of the Convention, from punishment entailing forced or compulsory labour include activities involving the exercise of the freedom to express political or ideological views (orally, through the press or through other communication 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 the 2012 General Survey on the fundamental Conventions, paragraphs 302 and 303).

The Committee once again urges the Government to amend or repeal the above-mentioned provisions of the Criminal Code, of Legislative Ordinance No. 25-557 of 6 November 1959, and of Legislative Ordinances Nos 300 and 301 of 16 December 1963, and to ensure that, in law and practice, no penalty entailing compulsory prison labour (including in the context of penal servitude) can be imposed as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. The Committee requests the Government to report on progress made in this regard.

As regards the Bills concerning access to information, public demonstrations, protection of human rights defenders, and non-profit associations, the Committee requests the Government to provide information on their current status. The Committee expresses the firm hope that the provisions of these texts will take account of the foregoing comments and the obligations entered into under the Convention. It also requests the Government to provide a copy of the law amending Act No. 96/002 of 22 June 1996 establishing arrangements for the exercise of freedom of the press.

Article 1(d). Imprisonment entailing compulsory labour imposed as a penalty for participating in strikes. The Committee previously asked the Government to take the necessary steps to amend the provisions of section 326 of the Labour Code so that imprisonment entailing compulsory labour cannot be imposed as a penalty for participating in a strike. Section 326 of the Labour Code allows the imposition of a fine and/or penal servitude of up to six months on any person in breach of section 315 of the Criminal Code, which regulates the conditions for exercising the right to stop work on a collective basis in the event of a collective labour dispute.

The Government indicates in its report that the penalties established in section 326 of the Labour Code, namely penal servitude of up to six months and a fine, are the only penalties which can be imposed in cases where a striking worker is convicted. The Committee notes with regret the absence of measures taken by the Government to amend section 326 of the Labour Code, despite the amendments made to the Labour Code in 2016 by Act No. 16/010 of 15 July 2016 amending and supplementing the Labour Code; the Government merely indicates that the possible penalties are penal servitude and a fine. The Committee recalls that penal servitude entails compulsory labour for the convicted person (section 8 of the Criminal Code) and therefore comes within the scope of the Convention. The Committee emphasizes that, under Article 1(d) of the Convention, no penalty involving compulsory labour may be imposed on workers for participating peacefully in a strike. The Committee therefore expects the Government to take the necessary steps, and to take account of the foregoing comments and those made in relation to the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), to amend section 326 of the Labour Code, so that the legislation does not allow the penalty of penal servitude to be imposed on persons who have participated peacefully in a strike. The Committee requests the Government to provide information on progress made in this regard.