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ESWATINI GOVT, ILO CLASH OVER KUHLEHLA CUSTOMARY PRACTICE

03/03/2023 08:42:00 Sibusiso Zwane

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MANZINI - The Government of Eswatini and the International Labour Organisation (ILO) are seemingly not in agreement over the customary practice of kuhlehla.

Kuhlehla is rendering services to the local chief or the King, such as ploughing the fields of traditional leaders and according to a report, it was still practised and enforced, allegedly with punitive measures for refusal to attend.
The clash over the Eswatini customary practice came to the fore as the government of Eswatini is on the verge of finalising its Employment Bill of 2018 and as ILO was analysing and comparing it with some of its conventions (where Eswatini is a signatory), mainly the Abolition of Forced Labour Convention No.5 of 1957 (ratification: 2000). ILO punched holes in the customary practice as it viewed it as forced labour.

Conventions

This is contained in a report of ILO’s Committee of Experts on the application of conventions and recommendations, which was issued last week after the 11th Session of the International Labour Conference. In the report, the committee said it noted government’s indication that the redrafting of the Employment Bill was finalised by the Labour Advisory Board (LAB), after technical comments which were provided by ILO.

The committee said it noted, more particularly, that Sections 19 to 21 of the Employment Bill prohibited forced labour and that Section 158(1) (b) of the Bill established the penalties in cases of forced labour. The committee said it also noted that Section 19 of the Bill, which referred to five situations in which the work or service imposed should not be considered forced labour, generally followed the exceptions under Article 2(2) of the Abolition of Forced Labour Convention, 1957 (No. 105) (ratification: 2000)

Interest

It said Section 19(d) of the Bill provided that; “Communal services of a kind which are to be performed by the member of a community in the direct interest of the community and not being for the purposes of financial gain.” It said government claimed that this did not constitute forced labour.

In this regard, the committee drew government’s attention to the fact that Section 19(d) of the Bill goes beyond Article 2(2) (e) of the convention, which excludes from its scope minor communal services, provided they are ‘performed by the members of the community in the direct interest of the said community’ and ‘that the members of the community or their direct representatives shall have the right to be consulted in regard to the need for such services’.

Furthermore, it said it noted that Section 19(e) of the Bill provided that; ‘any work or service which forms part of the normal civic and cultural obligations of the citizens of a fully self-governing country’ do not constitute forced labour. In this regard, the committee said this Section purportedly went beyond Article 2(2) (b) of the convention as the exception of; ‘normal civic obligations’ provided for under this provision of the convention should be understood in a very restrictive way.

Furthermore, the committee said Section 158(1)(b) of the Bill says; “Exacting or imposing forced labour, or causing or permitting forced labour to be exacted or imposed is punishable by a fine or imprisonment for a period not exceeding one year or both.”

Forced

It said according to its analysis, under this provision, a person committing the offence of forced labour might be sentenced to a fine only. Thereafter, it recalled that pursuant to Article 25 of the convention, the exaction of forced or compulsory labour should be punishable as a penal offence and when the envisaged sanction consists of a fine or a short prison sentence, it could not be considered as an effective penalty of a dissuasive nature in view of the gravity of the offence.

After that, the committee noted government’s indication that, in August 2021, the final draft of the Employment Bill was submitted to the Minister of Labour and Social Security and forwarded to the Office of the Attorney General (AG). It said the Bill would then be forwarded to the Cabinet for approval and to the Parliament for adoption. It added that government stated that it was anticipated that the legislative process would be completed without any further delay, particularly taking into account the level and extent of consultations that had taken place within the LAB.

Therefore, the committee expressed the firm hope that government would take into account the above comments and adopt the necessary measures to ensure that the final version of the Employment Bill fully complied with the provisions of the convention.

It said government could do this by amending Sections 19 (d) and (e) of the Bill in order to limit the scope of the exclusions from the definition of forced labour to; minor communal services, while including a requirement to consult the members of the community or their direct representatives concerning the obligation to perform such minor community services and normal civic obligations, to be understood in a very restrictive way. “Government needs to also amend Section 158(1) (b) of the Bill in order to establish sufficiently dissuasive penalties of imprisonment for the exaction of forced labour,” the committee said.

Compulsory

On another note, regarding legislation concerning compulsory public works or services, the committee said for a number of years, it had been drawing government’s attention to Swazi (Eswatini) Administration Order No. 6 of 1998 which provided for the duty of emaSwati (Swazis) to obey orders requiring participation in compulsory works. It said the compulsory works included cultivation, anti-soil erosion works and the making, maintenance and protection of roads, which was purportedly enforceable with severe penalties for non-compliance.

It added that it previously noted that, despite government’s indication that this order had been declared null and void by the High Court of Swaziland (Eswatini) (Case No. 2823/2000); such practices supposedly persisted, as it was rooted in the well-established and institutionalised customary law, in particular through the customary practice of kuhlehla. This (kuhlehla) is rendering services to the local chief or the King, such as ploughing the fields of traditional leaders and according to the committee’s report, it was still practised and enforced allegedly with punitive measures for refusal to attend.

The committee said while noting government’s explanation that this customary practice was not compulsory, it observed the absence of a text regulating the nature of this work or rules determining the conditions under which such work was required or organised. Therefore, it requested government to take steps in order to explicitly set out in the legislation the voluntary nature of participation in the customary practice of kuhlehla.

Again, it said it noted government’s indication that the country had a dual legal system based on written Roman-Dutch common law and unwritten traditional and customary laws, as provided for under Articles 252 and 258 of the Constitution (Act No. 1 of 2005). It said government added that the customary practice of kuhlehla formed part of the unwritten traditional and customary laws which, therefore, made it impossible for the administration of the country to adopt a text regulating it.

On top of that, it said government indicated that in order to put an end to this issue, a new Section 19(e) had been incorporated into the Employment Bill, in order to exclude from the definition of ‘forced labour’ any work which formed part of the ‘cultural obligations’ of the citizens. In this regard, the committee said it noted with concern that despite its previous requests to government to ensure the voluntary nature of participation in work carried out pursuant to customary practices, such as kuhlehla, the administration envisaged explicitly excluding these practices from the scope of the legislation prohibiting forced labour.

Moreover, the committee drew government’s attention to the fact that, as long as customary practices such as kuhlehla, failed to meet the criteria of the exceptions to forced labour set out in Article 2 of the convention for minor communal services, civic obligation or cases of emergency, it would be incompatible with the convention.
In that regard, it urged government to take the necessary steps to ensure compliance with the convention, whether by ensuring the voluntary nature of participation in work carried out under traditional and customary laws, more particularly under the customary practice of kuhlehla or by limiting the work exacted under such practices to the exceptions of the convention. It then requested government to provide information on any progress made in this regard.

Additionally, the committee requested government to provide information on the number of persons who had been working as a result of customary practices, including the practice of kuhlehla, as well as on the type and duration of services carried out.