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

Convenio sobre las peores formas de trabajo infantil, 1999 (núm. 182) - Madagascar (Ratificación : 2001)

The Committee notes the Government’s first report.

Article 3 of the Convention. The worst forms of child labour. Clause (a). All forms of slavery or practices similar to slavery. 1. Sale and trafficking of children. The Committee notes that the national legislation does not include any specific provision concerning the sale and trafficking of children. It notes, however, that sections 354 to 357 of the Penal Code address the issue of abduction of minors. Thus, under the terms of section 354, paragraph 1, of the Penal Code, penalties shall be imposed against any person who, employing fraud or violence, abducts a minor or has a minor abducted, or leads them away, entices them from or removes them from the locality where they have been placed by the authorities into whose care they had been placed or entrusted. By virtue of section 356, paragraph 1, of the Code, penalties are envisaged for any person who, without employing fraud or violence, has abducted, enticed, or has attempted to abduct or entice, a minor under the age of 18. The Committee requests the Government to indicate to what extent section 354, paragraph 1, and section 365, paragraph 1, of the Penal Code prohibits the sale and trafficking of children under the age of 18, for the purpose of both economic and sexual exploitation.

2. Forced or compulsory labour. The Committee notes that, by virtue of section 3, paragraph 1, of the Labour Code, forced or compulsory labour is forbidden. The term "forced or compulsory labour" means all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.

3. Forced recruitment of children for use in armed conflict. The Committee notes that, according to the information made available to the Office, the age of conscription for military service is 18. It requests the Government to supply information in this regard and to transmit a copy of Decree No. 78-003 on national service, of 6 March 1978.

Clause (b). 1. Use, procuring or offering of a child for prostitution. The Committee notes that, by virtue of section 334 of the Penal Code, all persons shall be held to be procurers and penalized as such who: (1) in any way knowingly aid, assist, or protect the prostitution of others or the solicitation for the purposes of prostitution; (4) engage, entice, or support, even with their consent, a person, even an adult, for the purpose of engaging in prostitution or debauchery, or deliver a person into prostitution or debauchery; (5) serve as intermediaries, in any form whatsoever, between persons engaging in prostitution or debauchery and individuals who exploit or remunerate the prostitution or debauchery of others. The Committee also notes that, under the terms of section 335, paragraph 1, of the Penal Code, sanctions are envisaged for any individual keeping, directly or through an intermediary, an establishment of prostitution, as well as tolerating prostitution activities in a hotel, lodging house, boarding house, drinking establishment, club, society, dancing hall or performance hall or their annexes, or any premises open to the public kept, managed or left in the charge of the individual in question.

The Committee notes that, in 2002, ILO/IPEC carried out a "rapid assessment" concerning the scope of the phenomenon of the sexual exploitation of children in Madagascar, in the towns of Antsiranana, Toliara and the capital, Antananarivo. This study reveals the existence of the commercial sexual exploitation of children. Both girls and boys are affected. Generally speaking, boys and girls are "recruited" in the street or in nightclubs. However, boys in Antsiranana also have contact persons - generally hotel receptionists - who transmit offers or requests between the boys and their clients. Furthermore, according to the National Action Plan to Combat Child Labour, the commercial sexual exploitation of children occurs in most of the urban areas of Madagascar. Certain locations in particular, such as tourist towns and coastal villages, are affected. Most of the clients involved in the commercial sexual exploitation of children are Malagasy nationals. The use of intermediaries varies between 15 and 47 per cent in the three cities of Antananarivo, Antsiranana and Toliara. The average age at which children start work in this sector varies between 13 and 15.

Although the national legislation envisages provisions that criminalize intermediaries involved in prostitution, the Committee notes that no such provisions exist regarding the clients. It therefore requests the Government to transmit information concerning the measures taken or envisaged in order to criminalize any client using or recruiting a child under the age of 18 for prostitution and to adopt appropriate sanctions to this end. The Committee also requests the Government to transmit information concerning the application of sanctions in practice, providing, amongst other documents, reports regarding the number of convictions.

2. Use, procuring or offering of a child for the production of pornography or for pornographic performances. The Committee notes that, by virtue of section 346, paragraph 1, of the Penal Code, the broadcasting, fixing, recording or transmission of the image of a minor when that image is pornographic in nature is subject to punishment. The Committee notes, however, that the national legislation does not seem to contain provisions prohibiting pornographic performances involving the participation of children. The Committee reminds the Government that, by virtue of Article 1 of the Convention, it is obliged to take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. It thus requests the Government to indicate the measures taken or envisaged to prohibit, in accordance with Article 3(b) of the Convention, the use, procuring or offering of a child under the age of 18 for the production of pornographic performances and to adopt sanctions to this end. The Committee also requests the Government to transmit a copy of Law No. 98-024, of January 1998, altering the sections of the Malagasy Penal Code concerning paedophilia.

Clause (c). Use, procuring or offering of a child for illicit activities. The Committee notes that article 108 of Law No. 97-039 on the control of narcotic drugs, psychotropic substances and precursors in Madagascar (Law No. 97-039), envisages increased sentences when a minor is involved in the perpetration of the offences envisaged under articles 95 to 102. According to these provisions, sanctions are envisaged for those having contravened provisions concerning the cultivation, production, manufacture, supply, sale and trafficking of high-risk drugs or those drugs listed in the tables included in the annex to the law.

Article 3(d). Hazardous work. 1. General prohibition. The Committee notes that, by virtue of article 1 of Decree No. 62-152, of 28 March 1962, establishing the working conditions of children, women and pregnant women (Decree No. 62-152) under article 94 of the Labour Code, children of both sexes under the age of 18 may not be employed in work exceeding their physical capacities, presenting danger, or which by its nature and the condition in which it is undertaken, is likely to harm their morals.

2. Self-employed children. The Committee notes that, by virtue of article 1 of the Labour Code, the Code applies to workers who have an employment contract concluded in Madagascar. The Committee notes that, by virtue of this provision, the Labour Code does not apply to children under the age of 18 without a contractual employment relationship who are carrying out hazardous work. The Committee requests the Government to indicate the manner in which the national legislation envisages that these categories of children under the age of 18 will enjoy the protection envisaged in Article 3(d) of the Convention against being employed 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 hazardous work. The Committee notes that Decree No. 62-152 envisages a list of work prohibited to children under the age of 18, as well as giving reasons for the prohibition. It notes in particular that the Decree includes two tables, with table A including two parts: part I refers exclusively to children; part II refers to children and women. Moreover, under the terms of article 18 of Decree No. 62-152, children are not permitted to enter premises where work listed in table A is carried out. Moreover, article 10 of Decree No. 62-152 prohibits the employment of children for the greasing, cleaning and visits to running machinery or mechanisms. Article 11 of the Decree prohibits the employment of children on premises where hand or motor-driven machinery is used and where dangerous parts are not equipped with the appropriate protective measures. Furthermore, article 15 of Decree No. 62-152 prohibits the employment of children with regard to the use and handling of explosives.

The Committee notes that Decree No. 62-152 was adopted in 1962, over 40 years ago. In this regard, the Committee states that, according to the information made available to the Office, Decree No. 62-152 should be revised and a bill is currently being examined which is aimed at revising Law No. 94-029, of 25 August 1995, establishing a Labour Code. Thus, it reminds the Government that, under the terms of Article 4, paragraph 3, of the Convention, the list of hazardous work must be periodically examined and, if necessary, revised in consultation with the concerned employers’ and workers’ organizations. In this regard, the Committee draws the Government’s attention to Paragraph 3 of the Worst Forms of Child Labour Recommendation, (No. 190) 1999, which states 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, under water, 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, should the types of hazardous work prohibited to children under the age of 18 included in Decree No. 62-152 be revised, the Government will take into consideration the activities listed in Paragraph 3 of Recommendation No. 190. The Committee also requests the Government to provide information on consultations held with employers’ and workers’ organizations.

Article 4, paragraph 2. Identification of types of hazardous work. The Committee notes the Government’s indication that, following the regional workshops held since 2000 to identify the worst forms of child labour, a number of activities have frequently been cited. Amongst these activities the following priority groups have been identified for intervention within the time-bound programme (TBP), in particular child domestic labour; child labour in mining and quarrying; and child labour in hazardous and unhealthy environments in the rural and urban sectors. The Committee notes that, according to the document entitled "Combating the worst forms of child labour in Madagascar - IPEC assistance to the National Action Plan to Combat Child Labour" - four towns accounting for a significant number of children engaged in the worst forms of child labour are targeted by the TBP, namely Mahajanga, Antananarivo, Toliara and Toamasina. Furthermore, the TBP also covers the towns of Fianarantsoa, Antsiranana and the rural areas of the south of the Amboasary region, as pilot projects.

Article 5. Mechanisms to monitor the implementation of the provisions of this Convention. 1. Labour inspection. The Committee notes that, by virtue of article 131 of the Labour Code, labour inspectors are responsible for, amongst other things, ensuring that legal provisions or regulations related to working conditions and to the protection of workers, such as those provisions related to child and adolescent labour, are applied. It also notes that, by virtue of article 135 of the Code, labour inspectors are assisted by contrôleurs du travail (officials who assist labour inspectors in their work). Under the terms of article 133 of the Labour Code, labour inspectors have autonomy under the legislation and regulations in force with regard to visits and inquiries. They may freely and without prior warning enter any establishment subject to inspection. Moreover, according to section 134 of the Labour Code, labour inspectors may carry out inquiries regarding enterprises and trade unions and may request that any document or piece of information of a professional, economic, accounting, financial or administrative nature which might be of use to them in their work, be supplied to them. Referring to its previous comments concerning the Labour Inspection Convention, 1947 (No. 81), and Labour Inspection (Agriculture) Convention, 1969 (No. 129), the Committee notes that, in the wake of the ratification of Convention No. 182, the Government has launched various awareness-raising campaigns regarding the issue of child labour within the framework of the IPEC. It notes in particular the measures aimed at training labour inspectors in this field, as well as the implementation by the ministries responsible for labour and justice, in collaboration with IPEC, of a programme to strengthen the concerned institutions. The Committee requests the Government to supply information, especially by means of extracts of reports or documents, concerning the functions of labour and welfare inspectors, in particular with regard to the worst forms of child labour.

2. Other mechanisms. (i) Division for the prevention, abolition and monitoring of child labour (PACTE). The Committee notes the Government’s indication that the PACTE was created at the beginning of 2004 by the Ministry of the Public Service, Labour and Social Law. This Division has a mandate to combat child labour in an effective manner and to ensure that all aspects of Conventions Nos. 138 and 182 on child labour are applied. Furthermore, it oversees the development of the National Action Plan to Combat Child Labour in Madagascar. The Committee requests the Government to supply information concerning the workings of the PACTE, in particular with reference to the elimination of the worst forms of child labour.

(ii) National police. The Committee notes the Government’s indication that the vice squad, the relevant department of the national police, is responsible for enquiries concerning prostitution in particular.

Article 6. Programmes of action to eliminate the worst forms of child labour. The Committee notes with interest that the Government has elaborated a National Action Plan to Combat Child Labour in Madagascar, with the participation of several groups working on child labour, including employers’ and workers’ organizations and NGOs. The National Action Plan will be implemented over a period of 15 years. Phase I (to last five years) will cover the strengthening and establishment of a legal and regulatory framework at all levels, the elaboration of a national training and education programme concerning the worst forms of child labour and the launch of the first wave of action programmes in the target regions. Phase II (to last five years) will cover the extension of the actions undertaken, both in terms of the target population and zones of intervention. Phase III (to last five years) will involve the consolidation of the progress made during the preceding two phases and will guarantee the effective withdrawal of children from the worst forms of child labour, in accordance with the objectives set. The aim of the National Action Plan is to significantly reduce the rate of prevalence from 30 per cent at the end of the first phase, to 5 per cent at the end of the second phase, and to less than 1 per cent at the end of the programme. The Committee requests the Government to regularly supply information on the impact of the National Action Plan to Combat Child Labour and the results obtained regarding the elimination of the worst forms of child labour.

Article 7, paragraph 1. Sanctions. The Committee notes that section 190 of the Labour Code, sections 334, 335 and 354 to 357 of the Penal Code and articles 95 and 108 of Law No. 97-039 envisage effective and dissuasive sanctions prohibiting: the sale and trafficking of children; forced or compulsory labour; and the use, procuring or offering of a child for prostitution or illicit activities, such as the trafficking of drugs. It also notes that section 194 of the Labour Code envisages sanctions in the case of violations of the provisions governing hazardous work prohibited to children under the age of 18 and included in Decree No. 62-152. The Committee requests the Government to supply information on the application of these sanctions in practice.

Paragraph 2. Effective and time-bound measures. The Committee notes with interest that Madagascar is currently in the first stage of implementing an ILO/IPEC time-bound programme (TBP) for the worst forms of child labour. It also notes that the TBP will support the implementation of the strategies and objectives of the National Action Plan to Combat Child Labour. It will have a duration of 51 months and will directly target around 14,000 children. Furthermore, the Committee notes that, according to the document entitled "Combating the worst forms of child labour in Madagascar - IPEC assistance to the National Action Plan to Combat Child Labour", the discussions and workshops held since 2000 to identify the worst forms of child labour made it possible to identify four large priority groups for intervention within the TBP, namely commercial sexual exploitation of children and related activities; child domestic labour; child labour in mining and quarrying; and child labour in hazardous and unhealthy environments in the rural and urban sectors.

Clause (a). Preventing the engagement of children in the worst forms of child labour. The Committee notes that the TBP envisages that around 9,000 girls and boys will be prevented from becoming engaged in the worst forms of child labour. The Committee requests the Government to indicate the number of children who will be effectively prevented from becoming engaged in the worst forms of child labour for each of the four priority groups for intervention following the implementation of the TBP.

Clause (b). Direct assistance for the removal of children from the worst forms of child labour and for their rehabilitation and social integration. The Committee notes that one aim of the TBP is to remove around 5,000 girls and boys from the worst forms of child labour. It also notes that measures for the re-adaptation and social integration of children removed from the four large priority groups for intervention are envisaged. Furthermore, the Committee notes that a Division for the prevention, abolition and monitoring of child labour (PACTE) is currently carrying out a study throughout the six provinces of Madagascar to identify locations suitable for welcoming children removed from the worst forms of child labour. The Committee requests the Government to supply information on the number of children who will be effectively removed from child labour, as well as the measures taken for their re-adaptation and social integration.

Clause (c). Access to free basic education. The Committee notes that educational measures are envisaged for 10,000 of the 14,000 children targeted by the TBP. It consequently requests the Government to supply information on the number of children who, having been removed from child labour, have effectively been reintegrated into basic education courses or who are receiving pre-vocational or vocational training.

Clause (d). Children at special risk. 1. HIV/AIDS. The Committee notes that, according to the information contained in the Joint United Nations Programme on HIV/AIDS (UNAIDS) and World Health Organization (WHO) 2004 factual note on the epidemic, over 30,000 children will be orphaned by HIV/AIDS in Madagascar. The Committee notes that, in its final observations on the second periodic report of the Government in October 2003 (CRC/C/15/Add.218, paragraphs 51 and 52), the Committee on the Rights of the Child, whilst noting that the prevalence of HIV/AIDS is not very high in Madagascar and that the Government appears to be concerned by the disease, states that it is concerned by the significant increase in the prevalence of the disease in the country. The Committee notes that HIV/AIDS has consequences for orphans for whom the risk of becoming engaged in the worst forms of child labour is increased. It consequently requests the Government to make every effort to reduce the prevalence of HIV/AIDS, forestalling its spread amongst the population and transmitting information on the specific measures taken within a determined period to protect children orphaned by HIV/AIDS from becoming engaged in the worst forms of child labour.

2. Street children. The Committee notes that, in its final observations on the second periodic report of the Government in October 2003 (CRC/C/15/Add.218, paragraphs 63 and 64), the Committee on the Rights of the Child expresses its concern at the high number of children living and working in the street and at the absence of a strategy to tackle the problem. In particular, the Committee recommended that the Government develop a strategy to tackle the issue, especially by taking the necessary measures in order to implement measures for prevention, re-adaptation and social integration. The Committee notes the Government’s indication that the Ministry of the Public Service, Labour and Social Law is responsible for the schooling and training of street children within the framework of the Public Investment Programme for Social Action (PIP). According to the Government, 40 child workers take part in this programme every year. Of these 40, 20 are put through the first year of schooling before being reinserted into the public education system and 20 others receive training in dressmaking, before going on to take up placements with enterprises, or perhaps to set up their own businesses. The Committee considers that street children are particularly exposed to the worst forms of child labour. In particular, it requests the Government to continue to supply information on the measures taken or envisaged, in particular on the protection of street children from the worst forms of child labour as well as their re-adaptation and social integration.

Clause (e). Special situation of girls. The Committee notes that, according to the so-called rapid assessment on the extent of the phenomenon of the sexual exploitation of children in Madagascar carried out in 2002 by the ILO/IPEC, the sexual exploitation of girls is more visible (meaning that their friends, acquaintances and even their parents, know about it) and more widespread than that of boys. Whilst noting that the commercial sexual exploitation of children and related activities makes up one of the four priority groups for intervention within the TBP, the Committee requests the Government to indicate the manner in which it intends, within the framework of the TBP, to focus on the situation of girls and to remove them from the worst forms of child labour.

Paragraph 3. Designation of the competent authority responsible for the implementation of the provisions giving effect to the Convention. The Committee notes that the National Committee for Combating Child Labour (CNLTE) is the body responsible for decision-making, guidance, conception and the follow-up to all policies and strategies on the combat against child labour. It is made up of around 30 people representing the key ministries concerned, employers’ and workers’ organizations, NGOs and civil society. The ILO/IPEC and UNICEF have observer status. The Committee requests the Government to provide information on the methods employed by the CNLTE to ensure the monitoring and implementation of the Convention.

Article 8. Enhanced international cooperation and assistance. The Committee notes that Madagascar is a member of Interpol, an organization that facilitates cooperation between countries in different regions, especially with regard to combating the trafficking of children. It notes that the Government is conscious of the link that exists between child labour and poverty. In this regard, the Committee notes that the Government has implemented a poverty reduction strategy document (PRSD) in collaboration with the World Bank. Noting that PRSDs contribute to breaking the circle of poverty, an essential element in the elimination of the worst forms of child labour, the Committee requests the Government to supply information on any significant impact that the PRSD might have had on the elimination of the worst forms of child labour, particularly in the case of the four priority groups for intervention within the TBP, namely commercial sexual exploitation of children and related activities; child domestic labour; child labour in mining and quarrying and child labour in hazardous and unhealthy environments in the rural and urban sectors.

Parts IV and V of the report form. Application of the Convention in practice. The Committee notes the statistics supplied by the Government concerning certain violations related to minors, in particular, enticement, paedophilia, procurement and prostitution. It notes, however, that according to the TBP working document, there are currently no statistics available on the total number of children engaged in the worst forms of child labour. The Committee therefore requests the Government to take the necessary measures to resolve this situation and to supply statistics and information on the nature, extent and development of the worst forms of child labour, the number of children protected by the measures giving effect to the Convention, the number and nature of violations, the inquiries carried out, the court cases and the convictions and sanctions applied. The information provided shall, as far as is possible, be broken down according to gender.