Demande directe (CEACR) - adoptée 2011, publiée 101ème session CIT (2012)

Convention (n° 182) sur les pires formes de travail des enfants, 1999 - Koweït (Ratification: 2000)

Referring to its previous comments, the Committee notes that Act No. 6 of 2010 (Labour Code of 2010) has been adopted and promulgated in the Official Gazette No. 963.

Article 3 of the Convention. Worst forms of child labour. Clause (a). All forms of slavery or practices similar to slavery. Sale and trafficking of children. The Committee previously noted that there are no specific legal provisions prohibiting the sale and trafficking of children under 18 years of age. The Committee reminded the Government that, even when a worst form of child labour does not appear to exist, the Convention requires the ratifying Members to take immediate and effective measures to prohibit this form of child labour. The Committee noted the Government’s statement that a draft bill on combating human trafficking and the smuggling of migrants (draft Trafficking Bill) has been drafted by the Ministry of Justice, and has been submitted to the Council of Ministers for its adoption.

The Committee notes the Government’s information that the draft Trafficking Bill contains provisions prohibiting trafficking of children, who are defined as persons who have not exceeded 18 years of age. Moreover, the Committee notes the Government’s information that section 185 of the Penal Code prohibits a person’s entry or exit into or from Kuwait for the purpose of disposing of him/her as a slave. The same provision prohibits any person from buying, exposing for sale, or guiding another person into serfdom. The Committee therefore observes that the Penal Code appears to prohibit only the trafficking of persons for the purpose of forced labour. The Government indicates that the bill was submitted to the National Assembly by decree in 2008. However, the draft Trafficking Bill remains on the Assembly’s agenda and has not yet been discussed. Noting that the draft Trafficking Bill has been submitted to the National Assembly for several years already, the Committee requests the Government to take immediate measures to ensure that this bill is discussed and adopted as a matter of urgency. The Committee expresses the firm hope that the draft Trafficking Bill prohibits child trafficking for both labour and sexual exploitation. It requests the Government to provide a copy of the bill, once it has been adopted.

Clause (c). Use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs. The Committee previously noted the Government’s indication that Act No. 3 of 1983, which relates to young persons, and Ministerial Decree No. 148 of 2004, which relates to the employment of young persons, contain provisions prohibiting the use, procuring or offering of a child under 18 years for illicit activities, in particular for the production and trafficking of drugs. The Committee also noted that Act No. 3 of 1983 relates to juvenile justice and young offenders, and that Ministerial Decree No. 148 of 2004 relates to work prohibited for young persons.

The Committee observes that, according to the Government’s information, Act No. 3 of 1983 relating to juvenile justice and young offenders deals mostly with the criminal responsibility of young offenders. The Committee notes the Government’s information that section 47 of the Penal Code provides that “A person is considered to have committed a crime if he incites another who is not eligible for criminal responsibility to commit a crime, or a person who has good will”. The Government also indicates that section 18 of the Penal Code provides that a person who has not reached the age of seven years at the time of committing a crime shall not be held accountable. Therefore, the Committee observes that the Penal Code seems only to prohibit the act of inciting a child under seven years of age to commit a crime. The Committee notes that the use, procuring or offering of a child for illegal activities, in particular the production and trafficking of drugs, is not specifically prohibited in Kuwaiti legislation. The Committee, therefore, requests the Government to take the necessary measures, as a matter of urgency, to prohibit the use, procuring or offering of a child under 18 years for illicit activities, in particular for the production and trafficking of drugs. It requests the Government to provide information on the progress made in this regard.

Article 4(1). Determination of hazardous work. The Committee notes that, according to section 20a) of the Labour Code of 2010, young persons aged from 15 to 18 years shall not be employed in industries or professions that are, by a resolution of the Minister, classified as hazardous or harmful to their health. In this regard, the Committee recalls that, under the terms of Article 4(1) of the Convention, the types of hazardous employment or work shall be determined by national laws or regulations or by the competent authority, after consultation with the organizations of employers and workers concerned. The Committee requests the Government to provide information on the progress made by the Minister of Labour in elaborating a resolution, after consultation with the organizations of employers and workers concerned, providing for a list of the industries and professions classified as hazardous or harmful to the health of children. It firmly hopes that this list, determining the types of hazardous work prohibited for children under 18 years of age, will be adopted as a matter of urgency, in conformity with Article 4(1) of the Convention.

Article 5. Monitoring mechanisms. National committee to combat human trafficking and smuggling of migrants. The Committee previously noted that the draft Trafficking Bill includes the establishment of a national committee to combat human trafficking and smuggling of migrants.

The Committee notes that, according to information available in a 2011 report on the trafficking in persons in Kuwait available at the website of the Office of the High Commissioner for Refugees, the Government of Kuwait made few discernible efforts to significantly improve its law enforcement efforts and did not report any arrests, prosecutions, convictions, or sentences of traffickers during the reporting period for either forced labour or prostitution. The Committee, therefore, requests the Government to take measures to ensure the effective monitoring of the sale and trafficking of children. In this regard, the Committee requests the Government to take measures to ensure the establishment of the National committee to combat human trafficking and smuggling of migrants, and to strengthen the capacity of the officials in charge of combating the trafficking of children. Finally, the Committee once again requests the Government to provide information on the functioning, powers and duties, once established, of the said National committee, particularly with regard to the effective monitoring of the trafficking of persons under the age of 18.

Labour inspection. The Committee previously noted the Government’s information that it would provide extracts of the inspection reports specifying the extent and nature of violations detected involving children under 18 years of age involved in the worst forms of child labour.

The Committee notes the Government’s information that no violations involving children under 18 years of age were detected through labour inspection. The Government indicates that the nature of employment in the private sector requires the recruitment of migrant workers from abroad, and that permits are not issued to migrant workers under the age of 18. Furthermore, the Government states that inspection results showed no violations involving national workers under 18.

Article 7(1). Penalties. In its previous comments, the Committee noted that the amounts of the fines established by Act No. 38 of 1964 had been revised to establish fines of 100 and 200 Kuwait dinars (KWD) (approximately US$363 to $725) respectively, for every worker employed on terms that contravene its provisions. The Committee noted the low fine imposed on employers who violate the provisions of Act No. 38 of 1964 concerning the worst forms of child labour. It noted the Government’s indication that the draft Labour Code revises the penalty and increases the amount of the fine imposed in the case of infringements to the provisions of the Labour Code. The Committee expressed the firm hope that the Government would take the necessary measures to ensure that the draft Labour Code is adopted in the very near future.

The Committee observes that section 141 of the Labour Code of 2010 provides for the penalties in the eventuality of a violation of the provisions regarding the employment of juveniles, which includes the prohibition of hazardous work. Section 141 provides that an offender shall be warned to remedy the violation within a period specified by the Ministry, not exceeding three months. In the event that the offender does not remedy the violation within the specified period, he/she shall be liable to a fine of not less than 100 and not more than KWD200 for each of the workers who are involved in the violation. Therefore, the Committee observes that the penalties for provided for in the Labour Code of 2010 do not seem to be harsher than those of the revised provisions of Act No. 38 of 1964. The Committee recalls that Article 7(1) of the Convention requires member States to take the necessary measures to ensure the effective implementation and enforcement of the provisions giving effect to this Convention, including through the application of appropriate sanctions. In this regard, the Committee brings the Government’s attention to Paragraph 13 of the Worst Forms of Child Labour Recommendation, 1999 (No. 190), which provides that Members should ensure that penalties including, where appropriate, criminal penalties, are applied for violations of the national provisions for the prohibition and elimination of hazardous work. The Committee, therefore, urges the Government to take immediate measures to ensure that sufficiently effective and dissuasive penalties are applied in practice to persons who engage children in hazardous work. In this regard, the Committee requests the Government to provide information on the practical application of penalties related to the worst forms of child labour, including the number and nature of infringements reported, prosecutions, convictions and penal sanctions applied. To the extent possible, all information provided should be disaggregated by sex and age.

Article 7(2). Clause (a). Effective and time-bound measures. Preventing the engagement of children in the worst forms of child labour. Education. The Committee previously requested the Government to supply a copy of the order which specifies that children who do not have Kuwaiti nationality (Bedoon children) shall be treated in the same manner as Kuwaiti citizens with respect to free and compulsory education. It also requested the Government to provide information on the enrolment and drop-out rates in schools, including of Bedoon children. The Committee noted the Government’s statement in reference to the provision of education to the children of illegal residents, that the Government pays attention to these cases, and that many such children are registered at private and public Kuwaiti schools. The Committee also noted the Government’s indication that a fund totalling KWD4 million (approximately $14,012,960) was set up especially for the education of these children, benefiting 15,730 students in 2006 and 2007.

The Committee notes the Government’s information that a new budget of KWD6 million was approved and adopted by the Kuwaiti Council of Ministers in order to resolve the situation of illegal immigrants in Kuwait. The beneficiaries of such fund are 12,000 Bedoon children and 4,000 children of the Bedoon military. The Committee once again requests the Government to provide information on the enrolment and drop-out rates in schools, particularly of Bedoon children.

Clause (d). Identifying and reaching out to children at special risk. Child migrant and domestic workers. The Committee previously noted that, in its concluding observations of 2004 (E/C.12/1/Add.98, paragraphs 17–21), the Committee on Economic and Social and Cultural Rights (CESCR) expressed its concern at the situation of domestic workers, in particular migrant workers, who were excluded from the application of the Labour Code and whose situation was not dissimilar to forced labour. In addition, according to the CESCR, the incidence of trafficking of women and children had risen, including for the purpose of domestic work. The Committee also noted that there were credible reports of foreign women and girls having migrated to Kuwait as domestic workers who were coerced into situations of debt bondage or involuntary servitude and that Kuwait was a destination country for children trafficked primarily from Bangladesh, India, Indonesia, Pakistan, Philippines and Sri Lanka for the purposes of sexual and labour exploitation. The Committee noted that a centre was established in 2007 to regulate the situation of domestic workers and to ensure that no domestic workers under 18 were brought into the country. Nonetheless, in its concluding observations on the CRC OP-SC of 18 February 2008, the Committee on the Rights of the Child (CRC) expressed concern at the continued possibility of exploitation of domestic workers under 18 entering the country (CRC/C/OPSC/KWT/CO/1, paragraph 23).

The Committee notes the Government’s detailed information concerning the functioning of the Kheitan Young Persons Centre, which was set up to be a temporary residence for migrant workers in need, including those who have fled their sponsors’ houses and have taken refuge in their respective embassies and those who request better wages from their employers. This centre is equipped with all the necessary requirements, such as sleeping arrangements and food and leisure services. The Committee notes that, in its report, the Government indicates that a copy of the statistics on the workers who were helped at embassies and those who were repatriated. However, it observes that no such document was in fact attached to the Government’s report. The Committee requests the Government to provide statistics on the number of domestic workers under the age of 18 who were helped by the Kheitan Young Persons Centre or any other similar establishment. The Committee also requests the Government to continue providing information on any additional measures taken or envisaged to ensure that children under 18 years working as domestic workers, especially migrant workers and trafficked persons, are protected from the worst forms of child labour.

Article 8. International cooperation and assistance. The Committee previously noted that the draft Trafficking Bill explicitly refers to the question of legal and judicial competence for transnational crimes. The Committee once again requests the Government to provide information on the impact of the Draft Trafficking Bill, once adopted, in enhancing international cooperation to prevent and eliminate child trafficking and to ensure that individuals who traffic children across borders are effectively prosecuted.

Parts IV and V of the report form. Application of the Convention in practice. The Committee previously noted that the CRC, in its concluding observations on the CRC OP-SC of 18 February 2008, had stated that the limited amount of reliable data on the extent of the sale of children, child prostitution and child pornography was largely due to the absence of a comprehensive data collection system, as well as to prevailing taboos in society surrounding this issue (CRC/C/OPSC/KWT/CO/1, paragraph 5). Noting the lack of information on this subject in the Government’s report, the Committee expresses its concern at the lack of data available on children engaged in the worst forms of child labour, and once again urges the Government to take the necessary measures to ensure that sufficient data on the situation of child victims of trafficking, prostitution and forced labour are available. To the extent possible, this information should be disaggregated by age and sex.

Considering that the Government has been referring to the draft Trafficking Bill for a number of years and, given that Article 1 of the Convention obliges member States to take “immediate” measures, the Committee requests the Government to take the necessary measures to ensure its adoption as a matter of urgency, and to provide information on any developments in this regard.