Solicitud directa (CEACR) - Adopción: 2005, Publicación: 95ª reunión CIT (2006)

Convenio sobre las peores formas de trabajo infantil, 1999 (núm. 182) - República Democrática del Congo (Ratificación : 2001)

The Committee notes the Government’s first report.

Article 1 of the Convention. Measures taken to secure the prohibition and elimination of the worst forms of child labour. The Committee notes that section 4 of Act No. 015/2002 of 16 October 2002 issuing the Labour Code (the Labour Code) establishes a national Committee to Combat the Worst Forms of Child Labour. The National Committee has the function of formulating a national strategy for the eradication of the worst forms of child labour and following up its implementation. The Committee notes the Government’s indication that the Ministry of Labour and Social Insurance has formulated a draft ministerial order establishing and organizing the operation of the Committee to Combat the Worst Forms of Child Labour, as envisaged in section 5 of the Labour Code. The Committee requests the Government to provide a copy of the order when it has been adopted.

Article 3. Worst forms of child labour. The Committee notes with interest that the wording of section 3 of the Labour Code is almost the same as that of Article 3 of the Convention and provides that all the worst forms of child labour shall be abolished. The Committee notes that though the Labour Code does not include a definition of the term child, but refers instead to the Family Code. However, section 219 of the Family Code does not provide a definition of the term child, but defines the term minor as an individual of either sex who has not yet reached 18 years of age. The Committee requests the Government to confirm that the term "child" in the Labour Code refers to children under 18 years of age and, if not, the measures it intends taking to ensure that the prohibitions against the worst forms of child labour apply to children under 18 years of age.

Clause (a). All forms of slavery or practices similar to slavery. Debt bondage, serfdom and forced or compulsory labour. The Committee notes that, under the terms of article 18, paragraph 2, of the Transitional Constitution, no one may be held in slavery, servitude or other similar conditions. It also notes that forced labour is prohibited by virtue of section 2(2) of the Labour Code.

Clause (b). Use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances. The Committee notes that in its initial report to the Committee on the Rights of the Child in August 2000 (CRC/C/3/Add.57, paragraphs 205 and 206), the Government indicates that sexual exploitation, which is a very real phenomenon in the Democratic Republic of the Congo, takes several forms, including prostitution and pornography. The Committee notes that section 3(1) and (2)(b) of the Labour Code provides for the abolition of the worst forms of child labour, including the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances or obscene dances.

With regard to prostitution, the Committee notes that under section 172 of the Penal Code, penalties shall be imposed on any person who has been in violation of morals by stimulating, facilitating or favouring, to satisfy the passions of a third person, the debauchery or corruption of persons of either sex who are aged or apparently aged under 21 years. The Committee also notes that under section 174bis of the Penal Code, penalties shall be imposed on: (1) any person who, to satisfy the passions of a third person, has procured, enticed or deceived, with a view to debauchery or prostitution, even with consent, a person aged or apparently aged over 21 years; (2) any person who has kept a house of debauchery or prostitution; (3) the procurer (the person who lives, in whole or in part, from the earnings of a person whom he or she exploits for prostitution); (4) any person who has habitually exploited in any manner the debauchery or prostitution of another.

Clause (c). Use, procuring or offering of a child for illicit activities. The Committee notes that section 3(1) and (2) of the Labour Code provides for the abolition of the worst forms of child labour, including the use, procuring or offering of a child for illicit activities. It also notes the Government’s indication that the production and trafficking of drugs are considered to be unlawful and are severely penalized by the Penal Code. However, the Committee notes that the text of the Penal Code available to the Office, as amended up to 30 November 2004, does not contain provisions in this respect. The Committee requests the Government to indicate whether the national legislation contains other more specific provisions prohibiting the use, procuring or offering of a young person under 18 years of age for, among other activities, the production, trafficking or sale of drugs and controlled substances.

Article 3(d). Hazardous work. Self-employed workers. The Committee notes that Act No. 015/2002 of 16 October 2002 issuing the Labour Code (the Labour Code) applies to all workers and all employers (section 1(1)). Section 7(a) defines the term worker as "any individual of an age to conclude a contract […] who has undertaken to place their occupational activity, in return for remuneration, under the direction and authority of an individual or association, public or private, in the context of a labour contract". Section 7(b) of the Labour Code defines the term employer as "any individual or association, in public or private law, who makes use of the services of one or more workers by virtue of a labour contract". The Committee notes that, under these provisions, the Labour Code does not apply to young children under 18 years of age who work under arrangements other than labour contracts. They accordingly are not protected from engaging in hazardous types of work. The Committee requests the Government to indicate the manner in which the national legislation provides that such young persons under 18 years of age shall benefit from the protection afforded by Article 3(d) of the Convention, so as to ensure that they are not engaged in work which, by its nature or the circumstances in which it is carried out, is likely to harm their health, safety or morals.

Article 4, paragraphs 1 and 3. Determination and revision of the list of types of work determined as being hazardous. The Committee notes the Government’s indication that Ministerial Order No. 68/13 of 17 May 1968 determining the conditions of work of women and young persons (Order No. 68/13) remains in force until new measures are taken under the Labour Code of 2002. The Committee notes that section 32 of Order No. 68/13 contains a list of hazardous and unhealthy types of work prohibited for young persons under 18 years of age. It also notes that section 32(13) establishes a general prohibition of all types of work prohibited by the labour inspector on the grounds of their dangerous or unhealthy nature. Furthermore, section 28 of Order No. 68/13 prohibits the assignment of young persons under 18 years of age to the regular transport of loads. Under the terms of section 31, young persons of both sexes under 18 years of age may be engaged in the transport of loads on hand trolleys or similar vehicles. Moreover, section 35 provides that the employment of young persons under 18 years of age is prohibited in bars and other public places where alcoholic beverages are consumed. The Committee notes that this Order was adopted under the Labour Code of 1967. As the new Labour Code was adopted in 2002, the Committee reminds the Government that, under the terms of Article 4, paragraph 3, of the Convention, the list of hazardous types of work determined shall be periodically examined and revised as necessary, in consultation with the organizations of employers and workers concerned. In this respect, the Committee draws the Government’s attention to Paragraph 3 of the Worst Forms of Child Labour Recommendation, 1999 (No. 190), which provides that, in determining the types of work referred to under Article 3(d) of the Convention, and in identifying where they exist, consideration should be given, inter alia, to: (a) work which exposes children to physical, psychological or sexual abuse; (b) work underground, underwater, at dangerous heights or in confined spaces; (c) work with dangerous machinery, equipment and tools, or which involves the manual handling or transport of heavy loads; (d) work in an unhealthy environment which may, for example, expose children to hazardous substances, agents or processes, or to temperatures, noise levels, or vibrations damaging to their health; (e) work under particularly difficult conditions, such as work for long hours or during the night or work where the child is unreasonably confined to the premises of the employer. The Committee hopes that, when formulating the new measures to be adopted under the Labour Code of 2002, the Government will take into consideration the types of work enumerated in Paragraph 3 of Recommendation No. 190.

Article 4, paragraph 2. Identification of where hazardous types of work exist. The Committee notes the Government’s indication that, under the terms of section 36 of Order No. 68/13, the recruitment of any young workers under 18 years of age shall occasion the establishment by the employer of a list indicating, inter alia, the job in which each worker is employed. A copy of this list, including reference to the certificates of fitness for employment, has to be sent to the labour inspector competent for the geographical area concerned within one week of recruitment. The Government adds that, as a result of the information gathered in this manner, it is easy for the labour inspector to identify where hazardous types of work are being carried out. The Committee requests the Government to indicate whether these lists have made it possible to identify cases of hazardous work and, if so, to provide the results.

Article 5. Mechanisms to monitor the implementation of the provisions giving effect to the Convention. The Committee notes the Government’s indication that the general labour inspection service is responsible for the enforcement of the provisions giving effect to the Convention. It also notes that, under section 187(1) of the Labour Code, the function of the labour inspectorate is to enforce legal provisions respecting conditions of work and the protection of workers in the performance of their work, including provisions respecting the employment of children. Furthermore, section 192 of the Labour Code determines the responsibilities of labour inspectors attached to the general labour inspectorate. The Committee requests the Government to provide information on the working of the labour inspection services, particularly with regard to the worst forms of child labour, including extracts of reports or other documents. It also requests the Government to provide information on the consultations held with employers’ and workers’ organizations, in accordance with the provisions of this Article.

Article 6. Programmes of action to eliminate the worst forms of child labour. The Committee notes the Government’s indication that programmes of action to eliminate the worst forms of child labour are currently under preparation. The Committee requests the Government to provide information on the programmes of action as soon as they are adopted. Furthermore, it requests the Government to provide information on the consultations held with relevant public institutions and employers’ and workers’ organizations and other concerned groups.

Article 7, paragraph 1. Penalties. The Committee notes that section 326 of the Labour Code establishes penalties for violations of the provisions of section 2 of the Labour Code respecting forced labour and section 3 on the worst forms of child labour. The Committee notes that the penalties for offences as serious as forced labour, trafficking, use of children for prostitution, pornography and illicit activities, contained in section 326 of the Labour Code, are not sufficiently dissuasive. It urges the Government to take steps to increase the penalties in order to more effectively eliminate the worst forms of child labour. It requests the Government to provide information on the application of these penalties in practice. With regard to prostitution, the Committee requests the Government to provide information on the application in practice of the penalties envisaged in sections 172 and 174bis of the Labour Code, including reports on the number of convictions.

Paragraph 2. Effective and time-bound measures. Clause (a). Preventing the engagement of children in the worst forms of child labour. Noting the information provided by the Government, according to which it will be in a position to provide further information to the Office once the Committee to Combat the Worst Forms of Child Labour has finished formulating the national action programmes, the Committee hopes that the Government will be in a position to provide this information in the near future.

Clause (d). Children at special risk. 1. Identification. The Committee notes the information provided by the Government that the members of the Committee to Combat the Worst Forms of Child Labour, in collaboration with employers’ and workers’ organizations and the Ministry of Labour and Social Insurance, will identify children at special risk. The Committee requests the Government to indicate the results achieved in the identification of children at special risk.

2. Street children. The Committee notes that, in its Concluding Observations on the Government’s initial report in July 2001 (CRC/C/15/Add.153, paragraphs 70 and 71), the Committee on the Rights of the Child expressed concern at the high number and difficult situation of children living in or working on the streets. The Committee on the Rights of the Child urged the Government to strengthen its assistance to children living in or working on the streets through, among others, studying the causes and implementing preventive measures, improving the protection of children already in this situation, including through the provision of education and programmes to assist them to leave street life. The Committee considers that children living on the streets are at special risk of the worst forms of child labour. It therefore requests the Government to provide information on the measures adopted or envisaged, particularly with regard to the protection of children living on the streets from the worst forms of child labour, and their rehabilitation and social integration.

3. HIV/AIDS. The Committee notes that, in its Concluding Observations in July 2001 (CRC/C/15/Add.153, paragraphs 52 and 53), the Committee on the Rights of the Child expressed deep concern at the very high number of children affected by HIV/AIDS either through direct infection, including mother-to-child transmission, or following the illness or death of a parent. In this respect, the Committee of Experts notes that, according to the information contained in the Fact Sheet of 2004 on the epidemic prepared by the Joint United Nations Programme on HIV/AIDS (UNAIDS) and the World Health Organization (WHO), there are around 770,000 HIV/AIDS orphans in the Democratic Republic of the Congo. While noting that the Democratic Republic of the Congo is participating in the World Bank HIV/AIDS Programme covering several countries with a view to implementing a national strategic plan to control the epidemic, the Committee of Experts is concerned at the very high number of children affected by HIV/AIDS. The Committee notes that HIV/AIDS has consequences for orphans, who are at increased risk of being engaged in the worst forms of child labour. With reference to the recommendations made by the Committee on the Rights of the Child in July 2001, the Committee requests the Government to make every effort to reduce the incidence of HIV/AIDS by preventing its transmission within the population, and to provide information on the specific time-bound measures taken to improve the situation of these children.

Clause (e). Special situation of girls. The Committee notes that, in its Concluding Observations in July 2001 (CRC/C/15/Add.153, paragraphs 60 and 61), the Committee on the Rights of the Child expressed concern at the low rate of school enrolment of girls, their high drop-out rate and also the high female illiteracy rate, especially in rural areas. The Committee on the Rights of the Child recommended the Government to strengthen its efforts to improve the access of girls to education, including by establishing specific programmes to reduce female illiteracy and information campaigns promoting this right. The Committee of Experts notes the information provided by the Government to the effect that special attention will be accorded to the situation of girls when formulating the various programmes to combat the worst forms of child labour. Considering that education contributes to eliminating many of the worst forms of child labour, the Committee hopes that the Government will take the necessary measures to improve the education system, ensure that children attend school regularly and reduce school drop-out rates, especially among girls.

Parts IV and V of the report form. Application of the Convention in practice. The Committee notes that no statistical data on the number of child victims of the worst forms of child labour appear to be available for the Democratic Republic of the Congo. It therefore hopes that the Government will be in a position to provide statistics and information with its next report on the nature, extent and trends of the worst forms of child labour, the number of children covered by the measures giving effect to the Convention, the number and nature of the infringements reported, the investigations undertaken, prosecutions, convictions and the penal sanctions applied. To the extent possible, all information provided should be disaggregated by sex.