Observación (CEACR) - Adopción: 2010, Publicación: 100ª reunión CIT (2011)

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

The Committee notes the Government’s report. It also notes the detailed discussion held in the Committee on the Application of Standards during the 98th Session of the International Labour Conference in June 2009.

Article 3 of the Convention. Worst forms of child labour. Clause (a). All forms of slavery or similar practices. 1. Sale and trafficking of children for sexual exploitation. Further to its previous comments, the Committee notes that section 174(j) of Act No. 06/018 of 20 July 2006, amending and supplementing the Decree of 30 January 1940 issuing the Congolese Penal Code, provides that any act or transaction relating to the trafficking or exploitation of children or any other person for sexual purposes in return for remuneration or any other benefit shall be punished by penal sanction ranging from ten to 20 years. It also notes that Act No. 9/001 of 10 January 2009 respecting the protection of children establishes a penalty of from ten to 20 years of penal servitude for both the sale and trafficking of children (section 162), and for the sexual slavery of a child (section 183). Nevertheless, the Committee observes that the Government’s report does not provide information on the application in practice of the legislation respecting the sale and trafficking of children for sexual exploitation. It further notes that, in its concluding observations of 10 February 2009, the Committee on the Rights of the Child (CRC/C/COD/CO/2, paragraph 10), while welcoming the adoption of Act No. 09/001 of 10 January 2009, expressed concern that the enacted laws are not always followed by the issuance of appropriate decrees for implementation, that law enforcement mechanisms are weak and that no activities have been carried out to raise awareness of these laws which are, consequently, not applied or implemented. Furthermore, the Committee notes that, in its conclusions, the Committee on the Application of Standards noted that, although the law prohibited the trafficking of children for labour or sexual exploitation, it remained an issue of serious concern in practice and, accordingly, called on the Government to take immediate and effective measures to eliminate the trafficking of children under 18 in practice. The Committee joins the Committee on the Application of Standards in urging the Government to renew its efforts and to take immediate and effective measures to ensure the elimination of the sale and trafficking of children under 18 years of age for sexual exploitation, thereby ensuring the application in practice to section 147(j) of the Penal Code and Act No. 09/001 of 10 January 2009. In this respect, it once again requests the Government to provide statistics on the number and nature of the infringements reported, investigations, prosecutions, convictions and penalties imposed under the above legal texts.

2. Forced recruitment of children for use in armed conflict. In its previous comments, the Committee noted that article 184 of the transitional Constitution provides that no one shall be recruited into the armed forces of the Democratic Republic of the Congo or take part in war or hostilities unless they have reached the age of 18 years at the time of recruitment. It also noted that the Government had adopted Legislative Decree No. 066 of 9 June 2000 concerning the demobilization and reintegration of vulnerable groups present within the fighting forces. The Committee further noted that, according to the two reports of the United Nations Secretary-General on children and armed conflict in the Democratic Republic of the Congo of 28 June 2007 (S/2007/391) and on children and armed conflict of 21 December 2007 (A/62/609–S/2007/757), the number of children recruited by the armed groups and armed forces had fallen by 8 per cent, which can be attributed in particular to the progress made in the implementation of the National Programme for the Disarmament, Demobilization and Reintegration of Children, the integration of the army, the reduction in the number of combat zones and the action taken by child protection networks against the recruitment of children.

The Committee takes due note of the fact that Act No. 09/001 of 10 January 2009, provides in section 87 for a penalty of penal servitude of from ten to 20 years for the enrolment or use of children under 18 years of age in armed forces and groups and the police. However, the Committee notes the Government’s indication that, despite the progress achieved in the suppression of the enrolment of children, the persistence of combat areas is increasing the risk of enrolment. According to the Government’s report, this is occurring in Ituri and in the two Kivu provinces, where recent cases of the abduction of children have been reported.

The Committee also notes the report of the United Nations Secretary-General on children and armed conflict in the Democratic Republic of the Congo of 9 July 2010 (S/2010/369, paragraphs 17–41), for which the period covered extends from October 2008 to December 2009. According to this report, 1,593 cases of the recruitment of children (1,519 boys and 74 girls) were reported over the period under consideration, including 1,235 in 2009, which is a slight fall in relation to 2008 (1,522 cases reported). Nevertheless, the Committee observes that the Armed Forces of the Democratic Republic of the Congo (FARDC) appear to have the largest number of children in their ranks. Indeed, according to the report of the Secretary-General, 42 per cent of the total number of cases of recruitment reported have been attributed to the FARDC, and 594 new cases of the recruitment of children have been identified in their ranks by the United Nations Organization Mission in the Democratic Republic of the Congo (MONUC), principally in the eastern region. The report reveals the existence of evidence confirming that hundreds of children associated with armed groups have been integrated into the FARDC without being concealed or hidden by their commander, particularly in North Kivu, where accelerated integration operations for armed groups into the national Congolese army have been undertaken in the absence of any coordination with institutions for the protection of children or supervision by these institutions. Accordingly, the number of children present in the ranks of the FARDC is reported to have increased spectacularly in 2009 due to the children present in the units that have been integrated, who represent 78 per cent of the cases of the recruitment of children in the FARDC. The Committee notes from the report of the Secretary-General that children recently integrated into the FARDC have been transferred to regions that are distant from their place of recruitment to participate in the “Kimia II” operation (a joint FARDC–MONUC operation) or in military operations in Haut-Uélé. Furthermore, the Presidential Guard is reported to have recruited at least 35 children before and during deployment in Haut-Uélé. With regard to the geographical location of this phenomenon, the Committee notes the information contained in the report of the Secretary-General indicating that the province of North Kivu has the great majority of cases reported in 2009 (82 per cent). Cases have also been identified in North Katanga and in the two Kasaï provinces, where no cases had been reported in 2008. According to the report, the use of child recruitment in areas not affected by the conflict may principally be explained by the high recruitment quotas imposed on FARDC commanders.

The Committee also notes with concern that, according to the report of the Secretary-General, the number of incidents involving the killing and maiming of children has increased, mainly in zones of military operations. The majority of the incidents reported are attributed to the Lords’ Resistance Army (LRA). However, nine cases of murders and 11 cases of maiming have also been attributed to elements of the FARDC. Furthermore, according to the Secretary-General, sexual violence against children continues to be a subject of serious concern. A significant increase in the number of abductions of children has also been observed over the period covered by the report. These are principally carried out by the LRA, although seven cases of the abduction of children by FARDC brigades have also been reported. The abducted children state that they were mainly used for combat, forced labour or were subject to sexual abuse.

The Committee observes that the Committee on the Rights of the Child in its concluding observations of 10 February 2009 (CRC/C/COD/CO/2, paragraph 67), expressed grave concern that the State, through its armed forces, bears direct responsibility for violations of the rights of the child and that it had failed to protect children and prevent such violations. The Committee of Experts also notes the observation by the Committee on the Rights of the Child that children have been arrested, detained and tried in military courts for military offences and other crimes allegedly committed while they were in the armed forces or groups, instead of being treated as victims (CRC/C/COD/CO/2, paragraph 72).

The Committee observes that, despite the adoption of Legislative Decree No. 066 of 9 June 2000 concerning the demobilization and reintegration of vulnerable groups present within the fighting forces, and of Act No. 09/001 of 10 January 2009, which prohibits the enrolment and use of children under 18 years of age in armed forces and groups and the police, children continue to be recruited and forced to join rebel armed groups and the regular armed forces of the Democratic Republic of the Congo. The Committee expresses deep concern at the persistence of this practice and the increase in the number of children recruited by the FARDC. It also once again expresses its grave concern at the practice of the detention of children for presumed association with armed groups and their judgement by military tribunals, which constitutes a flagrant violation of international standards. The Committee urges the Government to take immediate and effective measures as a matter of urgency to ensure that children under 18 years of age are not forcibly recruited into the ranks of the armed forces of the Democratic Republic of the Congo and requests it to provide information on the measures taken in this regard. With reference to Security Council Resolution No. 1906 of 23 December 2009, in which it “demands that all armed groups immediately stop recruiting and using children and release all children associated with them”, the Committee urges the Government to take immediate and effective measures to ensure that thorough investigations and robust prosecutions of any persons, including officers in the regular armed forces, who forcibly recruit children under 18 years of age for use in armed conflict, are carried out and that sufficiently effective and dissuasive penalties are applied to them in practice, in accordance with Act No. 09/001 of 10 January 2009. It requests it to provide information on the number of investigations conducted, prosecutions and convictions against such persons.

Article 3(d). Hazardous work. Mines. In its previous comments, the Committee noted the comments by the Confederation of Trade Unions of the Congo according to which young persons under 18 years of age are employed in mineral quarries in the provinces of Katanga and East Kasai. It noted that the United Nations Special Rapporteur, in her report of April 2003 on the situation of human rights in the Democratic Republic of the Congo (E/CN.4/2003/43, paragraph 59), noted that military units are recruiting children for forced labour, especially for the extraction of natural resources. The Committee observes that, although the legislation is in conformity with the Convention on this point, child labour in mines is a problem in practice and it therefore requested the Government to supply information on the measures which will be taken by the labour inspectorate to prohibit hazardous work by children in mines and to provide information on the effective application of the legislation on the protection of children in practice against hazardous work in mines.

The Committee notes that the Government’s report does not provide information on this subject. It observes that, in the context of the Conference Committee on the Application of Standards, the Worker member of the Democratic Republic of the Congo indicated that the labour inspectorate is not effective in view of the lack of staff and resources, and that it does not therefore have the capacity to address the problem of children working in mines. The Committee joins the Committee on the Application of Standards in urging the Government to take the necessary measures to reinforce the capacities of the labour inspectorate with a view to ensuring that children under 18 years of age engaged in hazardous types of work in mines benefit from the protection afforded by the national legislation. In this respect, it once again requests the Government to provide information on the application of provisions concerning this worst form of child labour, particularly through the communication of statistics on the number and nature of the offences reported and the penalties imposed.

Article 7(2). Effective and time-bound measures. Clauses (a) and (b). Preventing the engagement of children in the worst forms of child labour, removing them from such work and ensuring their rehabilitation and social integration. 1. Sale and trafficking of children for sexual exploitation. The Committee noted previously that the Government has established a multi-sectoral cooperation and action framework to prevent and respond to violence inflicted upon women, young persons and children, and that this framework includes the ministries responsible for human rights, women and the family and for social affairs, United Nations agencies, including UNICEF and UNDP, as well as NGOs. The action taken in this context includes the adoption of laws on sexual violence, awareness raising so that victims report their aggressors, psychological and social support for victims, medical treatment through the creation or reinforcement of health centre facilities to provide suitable care for victims, and legal support through the creation of legal advice centres. The Committee requested the Government to provide information on the impact of these measures. Noting the absence of information in the Government’s report on this subject, the Committee once again asks the Government to provide concrete information on the number of child victims of sale and trafficking for sexual exploitation who have in practice been removed from this worst form of child labour and on the specific measures adopted to ensure their rehabilitation and social integration.

2. Child soldiers. In its previous comments, the Committee noted that the operational framework for children associated with armed forces and groups envisaged by the National Programme for Disarmament, Demobilization and Reintegration had been launched in May 2004, and that around 30,000 children, including those who had been released before the adoption of the operational framework, were separated from the armed forces and groups between 2003 and December 2006. The Committee however noted that the issue of registering girls and removing them from the armed forces is a sensitive matter. The fear of being socially excluded if they are found to have been associated with armed forces or groups means that girls prefer to return discreetly to civilian life. The Committee also noted that programmes for the economic reintegration of children are hampered by the lack of possibilities available to improve their economic situation and the financial problems arising from a lack of long-term support mechanisms under the Programme. As a result, the children are at risk of being
re-enlisted in the armed forces or groups. With regard to measures for psychological rehabilitation, the Government also acknowledged that the transitional support structures are deficient.

The Committee notes that, according to the report of the United Nations Secretary-General on children and armed conflict in the Democratic Republic of the Congo of 9 July 2010 (S/2010/369, paragraphs 30 and 51–58), the number of children released in 2009 more than tripled in comparison with 2008, particularly in the province of North Kivu. Between October 2008 and the end of 2009, some 3,180 children (3,004 boys and 176 girls) left the ranks of the armed forces and groups or fled and were admitted to reintegration programmes. However, the Committee notes with concern the information provided in the report of the Secretary-General according to which on many occasions the FARDC has refused access to the camps to child protection institutions seeking to verify the presence of children in their units and that the commanders refuse to release children.

The Committee also observes that there are many obstacles to effective reintegration, such as the constant insecurity and the continued presence of former recruiters in the same region. According to the report of the Secretary-General, family reunion activities were suspended in certain regions of North Kivu during the course of 2009 in view of the high risk of re-engagement and the intimidation of children formerly associated with the armed forces and groups. The Committee also notes that the Committee on the Rights of the Child, in its concluding observations of 10 February 2009 (CRC/C/COD/CO/2, paragraph 72), expresses concern at the fact that several thousands of child victims recruited or used in hostilities have not been provided with measures for recovery and integration and that certain of these children have been re-recruited in the absence of alternatives and assistance for demobilization. According to the report of the Secretary‑General, girls associated with the armed forces and groups (around 15 per cent of the total number of children) rarely have access to reintegration programmes. Indeed, only 7 per cent of them benefit from assistance through national disarmament, demobilization and reinsertion programmes. The Committee notes the information provided by the Government to the effect that the structure of the unit for the implementation of the Programme for Disarmament, Demobilization and Reintegration needs to be strengthened. The Committee urges the Government to redouble its efforts and to take effective and time-bound measures to reinforce the National Programme for Disarmament, Demobilization and Reintegration with a view to continuing to remove children from armed groups and forces and ensuring their rehabilitation and social integration, paying special attention to girls. In this respect, it requests the Government to provide information on the results achieved in terms of the number of children who have benefited from social and economic reintegration measures.

3. Children who work in mines. The Committee notes the Government’s reply to the Conference Committee on the Application of Standards indicating that several projects for the prevention of child labour in mines and the reintegration of these children through education are being implemented. It notes the information provided in the Government’s report according to which these projects are intended to cover a total of 12,000 children, of whom 4,000 are to be covered by prevention measures and 8,000 removed with a view to their reintegration through vocational training. With reference to the conclusions of the Committee on the Application of Standards, the Committee requests the Government to provide detailed information in its next report on the specific measures adopted in the context of these projects to prevent children under 18 years of age from working in mines and to provide the necessary and appropriate direct assistance for their removal from these worst forms of child labour and to ensure their rehabilitation and social integration. In this respect, it requests the Government to provide information on the number of children who are in practice removed from these worst forms of child labour and who have benefited from reintegration measures through vocational training.

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