Observation (CEACR) - adoptée 2005, publiée 95ème session CIT (2006)

Convention (n° 182) sur les pires formes de travail des enfants, 1999 - République démocratique du Congo (Ratification: 2001)

The Committee notes the Government’s first report, as well as the information transmitted by the Confederation of Trade Unions of the Congo, dated 11 May 2005, and supported by the World Confederation of Labour (WCL). Referring to the comments made by the Committee under the Forced Labour Convention, 1930 (No. 29), concerning the sale and trafficking of children for the purposes of sexual exploitation, and particularly prostitution and pornography, the recruitment of child soldiers and work by children in mines (particularly in Kasaï and certain sectors of Lubumbashi), and as the Worst Forms of Child Labour Convention, 1999 (No. 182), deals with these worst forms of labour, the Committee considers that they may be examined more specifically in the context of this Convention. It requests the Government to provide information on the following points.

Article 3 of the Convention. Worst forms of child labour. Clause (a). 1.  Sale and trafficking of children for sexual exploitation. With reference to its observations under Convention No. 29, 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 68, 205 and 206), the Government indicated that phenomena such as the trafficking and sale of children for their sexual and commercial exploitation are increasingly widespread in the Democratic Republic of the Congo. Nevertheless, there is no in-depth study or statistics on the subject. The Government also indicated that the causes are mainly of an economic nature, but also of a social, family, political-legal and cultural nature. The Committee further notes that, in its concluding observations, of July 2001 (CRC/C/15/Add.153, paragraphs 68 and 69), the Committee on the Rights of the Child expressed concern at the information on the trading, trafficking, kidnapping and use for pornography of young girls and boys within the territory of the country, or from the Democratic Republic of the Congo to another country, and that it considered it to be of great concern that domestic legislation does not sufficiently protect children from trafficking. The Committee on the Rights of the Child strongly recommended that the Government take urgent measures to end the sale, trafficking and sexual exploitation of children through, among others, the adoption and implementation of appropriate legislation and the use of the criminal justice process to sanction those persons responsible for such practices.

The Committee notes that the Government ratified the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography in November 2001. It also notes that section 67 of the Penal Code prohibits the forceful abduction, restraint or detention of any person. Section 68 prohibits the abduction, restraint or detention of any person for the purpose of sale as slaves or the use of persons placed under their authority for that purpose. As indicated by the Government to the Committee on the Rights of the Child, the provisions of the Penal Code to suppress the sale and trafficking of children for sexual exploitation are not appropriate in view of the extent of the phenomenon. The Committee therefore requests the Government to take the necessary measures, as a matter of urgency, to prohibit in national legislation the sale and trafficking of children under 18 years of age for the purposes of sexual exploitation and to adopt appropriate penalties for contraventions of the prohibition.

2. Forced recruitment of children for use in armed conflict. With reference to its observations under Convention No. 29, the Committee notes that, in her report on the situation of human rights in the Democratic Republic of the Congo in April 2003 (E/CN.4/2003/43, paragraphs 33-36), the United Nations Special Rapporteur indicated that the phenomenon of child soldiers continues to be very disturbing. There is very little demobilization and mass recruitment taking place in the east of the country; according to UNICEF and the NGOs, there are more than 30,000 child soldiers in the Democratic Republic of the Congo. In Uvira, in South Kivu, all the armed groups in the region (RCD/Goma, Maï-Maï, Banyamulenge) continue to recruit children. Children aged under 15 make up a large proportion of the Maï-Maï, the Congolese National Army (ANC) and the Congolese Patriotic Union (UPC). The UPC has on several occasions ordered local communities to "supply children" for the war effort. According to the information transmitted to the Special Rapporteur, many child soldiers are abducted from their families by the various armed groups. They include young girls, who are frequently used as sex slaves for the soldiers. Many of the children are sent to the front.

The Committee also notes that, according to the report of the Secretary-General of the United Nations on children and armed conflict of 9 February 2005 (A/59/695-S/2005/72, paragraphs 15-22), since the establishment of the Transitional Government in the Democratic Republic of the Congo, the Forces armées congolaises (FAC, the armed forces of the former Government), the Mouvement de libération du Congo (MLC), the Rassemblement congolais pour la démocratie-Goma (RCD-Goma), the Rassemblement congolais pour la démocratie-Kisangani/Mouvement de libération (RCD-K/ML), the Rassemblement congolais pour la démocratie-National (RCD-N) and the main Maï-Maï groups represented at the inter-Congolese dialogue have been integrated into the new national army, the Forces armées de la République démocratique du Congo (FARDC). According to the Secretary-General, while this is a positive step, the various military units have yet to be fully integrated. In many cases, the units are only nominally FARDC, and some of them continue to use children. Since the designation of FARDC regional military commanders in October 2003, some 5,000 children, a small number of them girls, have been released from armed forces and groups. The Secretary-General however indicates that, despite some advances, thousands of children remain in the armed forces and armed groups in the Democratic Republic of the Congo, and recruitment, although not systematic, has continued. Although reiterating its commitment to separate all children from the FARDC, the état-major has not yet provided adequate information about the presence of children in its numerous brigades. While some regional and local commanders have released children, no mass release of children has yet taken place.

The Committee notes that the Democratic Republic of the Congo ratified the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict in November 2001. It also notes 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 nor take part in a war or hostilities unless he has reached the age of 18 years at the time of recruitment. Furthermore, the Committee notes that the Government has adopted Legislative Decree No. 066 of 9 June 2000 to demobilize and reintegrate vulnerable groups present in the fighting forces (Legislative Decree No. 066). Under the terms of section 1 of Legislative Decree No. 066, an order has been issued to demobilize the vulnerable groups in the Congolese armed forces or other armed groups operating in the Democratic Republic of the Congo and to provide for their socio-economic integration and their integration into their families. Under section 2, the term "vulnerable groups" includes child soldiers, girls or boys aged under 18 years, which constitute a specific group requiring urgent humanitarian intervention.

Despite the action taken by the Government in this field, the Committee expresses particular concern at the current situation of children who are still recruited for armed conflict in the Democratic Republic of the Congo. In this respect, the Committee refers to the United Nations Security Council which, in resolution No. 1493, adopted on 28 July 2003, indicates that it "strongly condemns the continued recruitment and use of children in the hostilities in the Democratic Republic of the Congo, especially in North and South Kivu and in Ituri". With reference to the United Nations Human Rights Commission, which in resolution No. 84, adopted on the 22 April 2004, "urges all the parties (…) to put an end to the recruitment and use of child soldiers, contrary to international law (...)", the Committee requests the Government to provide information on the measures taken to ensure compliance with the legislation applicable in respect of the forced and compulsory recruitment of children for use in armed conflict. It also requests the Government to redouble its efforts to improve the situation. Furthermore, the Committee requests the Government to take measures as a matter of urgency to ensure that young persons under 18 years of age are not forced to take part in armed conflict either in the national armed forces or in rebel groups, and to provide information on any further measures adopted or envisaged for this purpose. The Committee also requests the Government to provide a copy of Legislative Decree No. 066 of 9 June 2000 on the demobilization and reintegration of vulnerable groups present in the fighting forces.

Clause (d). Hazardous work. Mines. In its communication, the Confederation of Trade Unions of the Congo indicates that young persons under 18 years of age are engaged in mineral quarries in the provinces of Katanga and East Kasaï. In this respect, the Committee notes that, in her report on the situation of human rights in the Democratic Republic of the Congo in April 2003 (E/CN.4/2003/43, paragraph 59), the United Nations Special Rapporteur noted that military units recruit children and force them to work, especially to extract natural resources. She adds that NGOs in South Kivu informed her of children being recruited by armed groups to work in mines. The Committee refers to its observations under Convention No. 29, in which it noted the Concluding Observations of the Committee on the Rights of the Child of July 2001 (CRC/C/15/Add.153, paragraphs 66 and 67), according to which many children are at work in dangerous work environments, particularly in the Kasai mines and at certain locations in Lubumbashi. The Committee on the Rights of the Child recommended that the Government take measures to enforce legal protection in both the formal and informal work sectors, including in mines and other harmful environments.

The Committee notes that section 3(2)(d) of the Labour Code prohibits child labour in its worst forms, and particularly work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety, dignity or morals of children. Under the terms of section 1 of Ministerial Order No. 68/13 of 17 May 1968 determining the conditions of work of women and children (Order No. 68/13), it is prohibited for any employer to engage children in work in excess of their strength or exposing them to high occupational risks. The Committee also notes that under section 32 of Order No. 68/13, the extraction of minerals, shale, materials and debris from mines, open cast mines and quarries, as well as earthworks, are prohibited for young persons under 18 years of age. The Committee notes that section 326 of the Labour Code establishes penalties for violations of the provisions of section 3(2)(d) respecting hazardous work. Furthermore, it notes that the Democratic Republic of the Congo participates in the certification scheme for the internal control of diamonds established by the Kimberley Process. 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. The Committee requests the Government to provide information in relation to the allegations made by the Confederation of Trade Unions of the Congo. It also requests the Government to redouble its efforts to ensure the effective application of the legislation for the protection of children against hazardous types of work, and particularly hazardous work in mines.

Article 7, paragraph 1. Penalties. The Committee recalls that, under Article 7, paragraph 1, of the Convention, the Government has to take all necessary measures to ensure the effective implementation and enforcement of the provisions giving effect to the Convention, including the provision and application of penal sanctions. The Committee therefore requests the Government to indicate the penal provisions relating to: the sale or trafficking of children for sexual exploitation; the forced or compulsory recruitment of children for use in armed conflict; the engagement of children in hazardous work in mines. The Committee also requests the Government to provide information on the number and nature of the infringements reported, the investigations undertaken, legal proceedings initiated, convictions and the penalties applied in practice.

Article 7, paragraph 2. Effective and time-bound measures. Clause (b). Removal of children from the worst forms of child labour and their rehabilitation and social integration. 1. Sale and trafficking of children for sexual exploitation. The Committee notes that, in its concluding observations of July 2001 (CRC/C/15/Add.153, paragraph 69), the Committee on the Rights of the Child recommended to the Government that the police force and border officials should receive special training to help in combating the sale, trafficking and sexual exploitation of children, and that programmes be established to provide assistance, including rehabilitation and social integration, to the child victims of sexual exploitation. The Committee requests the Government to provide information on the measures adopted to ensure the rehabilitation and social integration of young persons under 18 years of age who are victims of sale and trafficking for sexual exploitation.

2. Child soldiers. The Committee notes that the Government, through the Ministries of Human Rights and Defence, has adopted, in collaboration with the National Demobilization and Reintegration Bureau (BUNADER), a national programme of disarmament, demobilization and reintegration of ex-combatants (PNDR). It also notes that a National Commission on Disarmament, Demobilization and Reintegration was established in March 2004. Furthermore, the Committee notes that the Government is participating in the ILO/IPEC interregional project on the prevention and reintegration of children involved in armed conflict, which also covers Burundi, Rwanda, Congo, Philippines, Sri Lanka and Colombia. The objectives of the programme are to prevent the recruitment of children in armed conflict, facilitate their removal and ensure their social integration.

The Committee also notes that, in his report of 9 February 2005 on children and armed conflict (A/59/659-S/2005/72, paragraphs 15-22), the Secretary-General of the United Nations indicated that in early 2004 the Transitional Government adopted a national policy and procedural framework for the disarmament, demobilization and reintegration of children in FARDC and all other armed groups. The National Commission on Disarmament, Demobilization and Reintegration has been actively planning the National Programme of Disarmament, Demobilization and Reintegration with the Military Integration Structure (MONUC), the United Nations country team and NGOs. During the reporting period, MONUC, UNICEF and their child protection partners have been collaborating with the National Commission in the ongoing activities to remove children from the armed forces and armed groups. They have also been pursuing dialogue with the military authorities to advocate and plan the separation of children. In order to do so, direct contacts have been made with field commanders, the Ministry of Defence and the FARDC leadership. Since the designation of FARDC regional military commanders in October 2003, some 5,000 children, a small number of them girls, have been released from armed forces and groups. The planning of reintegration projects has also continued. The Secretary-General adds that in Ituri, some progress has been made through dialogue with various armed groups, as well as through collaborative disarmament, demobilization and reintegration planning by the United Nations country team and NGOs. In May 2004, the Forces armées populaires congolaises (FAPC), the Front nationaliste et intégrationniste (FNI), the Parti pour l’Unité et la sauvegarde du Congo (PUSIC), the Union des patriotes congolais (UPC-Thomas Lubanga faction) and the UPC-Floribert Kisembo faction formally undertook to participate in the disarmament and community reintegration programme, which first became operational in early September 2004. As of mid-December, almost 700 children had passed through this programme. An unspecified number of children had been released from these groups prior to the launching of the programme.

The Committee encourages the Government to continue collaborating with the various bodies involved in the disarmament and community integration process with a view to removing children from armed forces and groups. It requests the Governments to provide information on the impact of the ILO/IPEC interregional programme on the prevention and reintegration of children involved in armed conflict and the results achieved. The Committee also requests the Government to provide information on the time-bound measures taken to ensure the rehabilitation and social integration of the children who are in practice withdrawn from armed forces and groups.

Paragraph 3. Competent authority responsible for the implementation of the provisions giving effect to the Convention. The Committee notes the Government’s indication that the Ministry of Labour and Social Insurance, through the Committee to Combat Child Labour, is responsible for the implementation of the provisions giving effect to the Convention. The Government adds that the Committee to Combat Child Labour will formulate a national strategy, monitor its implementation and evaluate the effect given to the measures recommended. However, the Committee notes that in its communication the Confederation of Trade Unions of the Congo states that, although section 4 of the Labour Code provides for the establishment of a Committee to Combat Child Labour, it has never been created. The Committee requests the Government to provide information relating to the allegations of the Confederation of Trade Unions of the Congo. It also requests the Government to provide information on the national strategy formulated by the Committee to Combat Child Labour and to provide a copy when it has been adopted.

Article 8. Enhanced international cooperation and assistance. The Committee notes that the Democratic Republic of the Congo is a member of Interpol, the organization which assists in cooperation between countries in the various regions, in fields such as combating the trafficking of children. It also notes, according to World Bank information, that the Government has been preparing a Poverty Reduction Strategy Paper (PSRP) since 2002, with the development phase of the strategy due to begin in 2005. Recalling that poverty reduction programmes contribute to breaking the vicious circle of poverty, which is essential for the elimination of the worst forms of child labour, the Committee requests the Government to provide information on any significant impact of the PRSP on the elimination of the worst forms of child labour, and particularly on the sale and trafficking of children for sexual exploitation, the forced recruitment of children for use in armed conflict and the performance of hazardous work in mines.

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