Observation (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

Convention (n° 29) sur le travail forcé, 1930 - Koweït (Ratification: 1968)

Articles 1(1) and 2(1) of the Convention. Freedom of domestic workers to terminate employment. In its earlier comments, the Committee expressed concern about the conditions under which domestic servants can leave their employment and their possibility to have recourse to courts if necessary. The Committee noted that the Labour Code currently in force excludes domestic workers. It also noted the Government’s indications that the new draft Labour Code would cover this category of workers and that, under section 5 of the draft Labour Code, the competent minister would make an order specifying the rules governing the relationship between domestic servants and their employers. Having noted that the new Labour Code has not yet been adopted, the Committee requested the Government to supply a copy of Order No. 362, of 4 April 2004, issued by the Council of Ministers, which provides for the establishment of a permanent committee for the regulation of the situation of migrant workers in the private sector, including domestic workers, under the chairmanship of the Minister of Social Affairs and Labour.

The Committee trusts that the new Labour Code, once adopted, will provide adequate protection for domestic workers as regards their freedom to terminate employment, and that the Government will communicate a copy of the new Code, as soon as it is adopted. The Committee again requests the Government to communicate a copy of the Council of Minister’s Order No. 362, which, as the Government indicated, was attached to the report, but has not been received in the ILO. Please also provide information on the activities of the permanent committee on migrant workers referred to above, as well as sample copies of contracts of employment concluded with domestic workers in accordance with the model contract issued by the Ministry of Interior.

Articles 1(1), 2(1) and 25. Trafficking in persons. The Committee previously noted the Government’s indication in its report that the victims of forced labour have the right to turn to the authorities, though without being allowed to stay in the country during the civil action unless their legal residence allows them to do so. The Committee asked the Government to indicate the measures taken or envisaged to allow the victims of trafficking to turn to the authorities and to stay in the country at least for the duration of court proceedings.

In its latest report, the Government merely states that victims of trafficking, as any other persons suffering from unjust acts, have the right to turn to the authorities and to courts to defend their rights. The Committee refers in this connection to the explanations provided in paragraphs 73–85 of its 2007 General Survey on the eradication of forced labour, where it observed that victims of trafficking are often perceived by the authorities as illegal aliens and that they should be granted permission to stay in the country to defend their rights and should be efficiently protected from reprisals if they are willing to testify; the protection of victims of trafficking may also contribute to law enforcement and to the effective punishment of perpetrators.

The Committee hopes that the Government will indicate, in its next report, measures taken or envisaged both in legislation and in practice, to prevent, suppress and punish trafficking in persons, including victim protection measures, such as, for example, protection of victims willing to testify from reprisals by the exploiters or any measures to encourage the victims to turn to the authorities and to stay in the country at least for the duration of court proceedings. Please also indicate whether there is an intention to introduce penal provisions aiming specifically at the punishment of trafficking in persons.

Article 25. Penal sanctions for the illegal exaction of forced or compulsory labour. The Committee previously noted that the legislation does not contain any specific provision under which the illegal exaction of forced or compulsory labour is punishable as a penal offence, and invited the Government to take the necessary measures, for example by introducing a new provision to that effect in the legislation. The Committee noted that the Government had referred in its reports to various penal provisions (such as sections 49 and 57 of Law No. 31 of 1970 on the amendment of the Penal Code, or section 121 of the Penal Code) prohibiting public officials or employees to force a worker to perform a job for the State or for any public body, as well as to section 173 of the Penal Code, which provides for the imposition of penalties on anyone who threatens another person physically or with damage to his reputation or property with a view to forcing the victim to do something or to refrain from doing something.

The Committee pointed out that the abovementioned provisions do not appear to be sufficient to give effect to Article 25 of the Convention which stipulates that “the illegal exaction of forced or compulsory labour shall be punishable as a penal offence”, and that “it shall be an obligation on any Member ratifying this Convention to ensure that the penalties imposed by law are really adequate and strictly enforced”.

The Committee expresses the firm hope that the Government will take the necessary measures (e.g. through the adoption of the new Labour Code or through the amendment of the Penal Code) in order to give full effect to this Article of the Convention. Pending the adoption of such measures, the Committee asks the Government to provide information on the application of the above penal provisions in practice, supplying copies of the court decisions and indicating the penalties imposed.

The Committee is also addressing a request on certain other points directly to the Government.