This post, which was originally part three of a larger report, seeks to assess the national response to child labour in Ethiopia in light of the international standards identified in the previous part of the report. The assessment principally focuses on the ratification of international instruments relevant to child labour and harmonization of legislation with their stipulations. Since Ethiopia does not yet have a comprehensive policy on child labour, the assessment does not directly cover issues that have to be addressed though the policy framework.
1. Ratification of International Instruments
Ethiopia is a signatory to the UDHR and has ratified the major international human rights instruments including the United Nations International Covenant on Civil and Political Rights (1966), United Nations International Covenant on Economic, Social and Cultural Rights (1966), UN Convention on the Elimination of all Forms of Discrimination against Women (1979), and the United Nations Convention on the Rights of the Child (1989) as well as the ACHR and the ACRWC. The ILO Convention Minimum Age Convention 138 (1973) and ILO Convention on the Worst Forms of Child Labour 182 (1999) have also been ratified.
Table 1: Status of Ratification of Major Child Labor Instruments
Status/Date of Ratification
ILO Minimum Age Convention 138
ILO Convention on the Worst Form of Child Labor 182
UN Convention on the Rights of the Child
UNCRC Optional Protocol on Armed Conflict
UNCRC Optional Protocol on the Sale of Children
ILO-IPEC participating country
Source: United States Department of Labor, September 2009
However, Ethiopia has not yet ratified the following key international instruments directly relevant to the response to worst forms of child labour.
– The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol) (2000)
– The Optional Protocol to the Convention on the Rights of the Child on Involvement of Children in Armed Conflict (2000)
– The Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (2000)
2. Defining the Child
Under the provisions of the Revised Family Code (2000), a child or minor is defined as “a person of either sex who has not attained the full age of eighteen years”. The Criminal Code (2005) classifies children into three age groups using ages nine and fifteen as thresholds for criminal responsibility while thirteen appears to be an important landmark in the classification of victims. In relation to redress, complaints of minors should in every case be lodged through their parents or legal representatives (Article 218). The Labor Proclamation (No. 42/2003), on the other hand, uses age fourteen as a point of reference. The Proclamation forbids the employment of children under 14 and categorizes children between 14 and 18 as young workers. The preferred age range for child labour statistics, on the other hand, is between five and seventeen with sub-groups defined at ten and fourteen years.
In civil proceedings, the role of a child affected by the proceedings is sometimes decided on the basis of a fixed age (e.g. 10 years old) while the Court is given broader discretion in other cases. As a general rule, The RFC states that a minor shall be consulted in all important matters concerning him/her unless the latter is below 14 years of age (Article 291/1). Under Article 249/2 of the Revised Family Code, the Court may, before reaching a decision on the appointment or removal of a person as guardian or tutor of a minor, hear the opinion of the minor to establish best interest. The same is true in decisions relating to adoption (Article 194/3/a). On the other hand, petition for emancipation of a child could only be submitted by parents, guardian or tutor of a child or any other interested person once the child has attained age fourteen (Article 312/1). Similarly, the Court may decide a case of disputed custody between divorced couples after hearing the opinion of the concerned child where such child is aged ten or above (Article 191/3). Finally, the RFC prohibits a minor who has not attained the age of 16 years from making a will (Article 295/2) save with the endorsement of the guardian (Article 285/1). Some important issues, such as age of consent for medical treatment, are not addressed within the civil law.
The education policy documents follow a system parallel to school age for pre-school (3-6), primary (7-14), and secondary (15-18) grades while the health system identifies infants (0-4), children (5-14), adolescents (15-19), and young persons (20-24). The same age groups are also used in the HIV/AIDS policy response. Thus, the reference to ‘children’ in health and HIV/AIDS related statistics normally means ‘children between the ages of five and fourteen while those above fifteen years of age are integrated into ‘adults’. On the other hand, the reference to ‘orphans’ or ‘AIDS orphans’ in the same report refers to children aged seventeen or below falling within the definition. A typical report on ART demand, for instance, reads: In 2005, a total of 277,757 persons, including 213,306 (76.8%) adults in the age group 15-49 years and 43,055 (15.5%) children in the age of 0 to 14 years, were estimated to require ART.
3. Birth Registration
The Civil Code of the Empire of Ethiopia (1960) contains detailed provisions for the establishment, mandates and operation of an office of civil status to keep records pertaining to civil status including the birth of a child. However, the coming into effect of this part of the Code was contingent upon the promulgation of antecedent legislation which never materialized. Thus, birth registration as understood within the international child rights framework, i.e. an official and permanent record of a child’s existence established at the time of birth, did not exist in Ethiopia. Instead, various modalities of formal and informal record and registration systems existed to fill the legislative and administrative lacuna.
This gap in the substantive standards and institutional framework for record of civil status has been among the critical issues the Revised Family Code of Ethiopia (2000) sought to address. To this end, the RFC incorporated provisions recognizing “certificates of birth, marriage, and other relevant certificates issued or to be issued by an appropriate authority” in lieu of a record of civil status pending the establishment of a comprehensive system of Office of Civil Status (Article 32/2). In effect, the RFC appears to have granted official status for the previously semi-official, unofficial and informal mechanisms of birth registration such as certificates issued by medical institutions upon birth or documents attesting the conduct of the appropriate birth-related ceremonies by religious institutions. A more lenient evidentiary standard has been adopted by the RFC in relation to proof of age where the Court may base its determinations on any relevant evidence or the testimony of two witnesses. The Code also obliges the Federal Government to establish the necessary legislative and institutional arrangements within six months from the coming into effect of the RFC. Since no such measures have yet been taken yet, the provisions of the RFC are still in effect.
Article 656.- Omission to Register the Birth of an Infant or to Report its Abandonment.
(1) Whoever, fails to declare the birth of an infant, as prescribed bylaw, to the officer of civil status, is punishable with a fine not exceeding five hundred Birr, or simple imprisonment not exceeding one month.
(2)Whoever finding a newborn infant abandoned, fails to report it to the appropriate authority is liable to the same punishment.
Article 657: False Registration, Supposition and Substitution of Infants.
(1) Whoever suppresses or falsifies a fact to be entered into the; register of the civil status of another, especially by registering or causing to be registered a false declaration concerning the identity or birth of an infant, is punishable with simple imprisonment.
(2) In cases entailing or likely to entail grave foreseeable consequences; especially in the case of registration by substituting one infant for another, the punishment shall be rigorous imprisonment not exceeding five years.
4. Work Done by Children
Labor Proclamation number 377/2003 is applicable to all employment relationships between an employer and a worker based on a contract of employment. However, the scope of application covers such relationships despite the existence or absence of a written contract of employment. The Proclamation does not, however, apply to employment relationships including:
– contracts for the purpose of educating or training other than apprentice;
– managerial employee(s);
– contracts of personal service for non-profit making purposes;
– contracts relating to a person who performs an act, for consideration, at his own business or professional responsibility.
While the Proclamation anticipates a Council of Ministers regulation to determine the conditions of work applicable to ‘personal service’, the other exemptions are not subject to similar arrangements. Thus, the legislation is not applicable to work conducted as part of education and training except where the relationship qualifies as an apprenticeship, to relationships where the ‘employee’ has de facto managerial responsibilities, to the relationship between a household employee and employer, and where the work is not conducted under the direct supervision of the ‘employer’.
In setting the minimum age, the Labor Proclamation has taken advantage of the permissions under Convention 138 to set the minimum age at fourteen. Though there is no express reference to this effect, the minimum age is also consistent with the age of completion for primary education. Furthermore, the Proclamation sets conditions for the employment of young workers in relation to the maximum working hours and precludes the employment of young workers for night work, overtime work, work on weekly rest days and on public holidays. Violation of these provisions is punishable by fines under the penalty provisions.
5. The worst forms of child labour
5.1. Hazardous Work
The Labor Proclamation provides a general definition of ‘hazardous work’ which is a verbatim copy of the applicable international standard and mandates the Minister of Labor and Social Affairs to prescribe a more detailed list at least covering:
(a) work in the transport of passengers and goods by road, railway, air and internal waterway, docksides and warehouses involving heavy weight lifting, pulling or pushing or any other related type of labour;
(b) work connected with electric power generation plants transformers or transmission, lines;
(c) underground work, such as mines, quarries and similar works;
(d) work in sewers and digging tunnels.
In line with the provisions of the ILO Conventions Nos. 138 and 182, the Proclamation prohibits the employment of young workers for ‘hazardous work’. This prohibition thus amounts to a minimum age of 18 for work considered hazardous under the general definition, the proclamation’s enumerations or the schedule to be issued by the Minister. This prohibition does not, however, apply to work performed by young workers following courses in vocational schools that are approved and inspected by the competent authority.
5.2. Slavery and Slavery-Like Practices
These forms of WFCL are dealt with in the provisions of the Criminal Code (2005). Offences that fall under the category of ‘slavery and slave-like practices’ include illegal restraint (article 585), abduction of a minor (articles 589, 590 and 594), enslavement (Article 596), and trafficking in children and child labour (Articles 596, 597 and 635). However, the provisions directly relevant to slavery and similar practices are the criminalization of enslavement and trafficking in women and children. The general Criminal Code prohibition on enslavement covers a range of actions including the sale, transport and actual enslavement of a person. Where these elements are fulfilled and the victim is a child, the punishment for the offence is aggravated.
Article 596.- Enslavement
(1) Whoever: (a) forcibly enslaves another, sells, alienates, pledges or buys him, or trades or traffics in or exploits him in any manner; or (b) keeps or maintains another in a condition of slavery, even in a disguised form, is punishable with rigorous imprisonment from five years to twenty years, and fine not exceeding fifty thousand Birr.
(2) Whoever, in order to deliver him at his place of destination, carries off or transports a person found in situations stated above, whether by land; by sea or by air, or conducts or aids such traffic, is liable to the punishment under sub-article (1) above.
(3) Where the crime is committed against children, women, feeble-minded or sick persons, the punishment shall be rigorous imprisonment from ten years to twenty years.
The next provision defines the offence of ‘trafficking in women and children’ for the purpose of forced labour incorporating the whole range of acts from recruitment to exporting as well as accomplices and accessories.
Article 597.- Trafficking in Women and Children.
(1) Whoever by violence, threat, deceit, fraud, kidnapping or by the giving of money or other advantage to the person having control over a woman or a child, recruits, receives, hides, transports, exports or imports a woman or a minor for the purpose of forced labour, is punishable with rigorous imprisonment from five years to twenty years, and fine not exceeding fifty thousand Birr.
(2) Whoever knowingly carries off, or transports, whether by land, by sea or by air, the victim mentioned in sub article (1), with the purpose stated therein, or conducts, or aids such traffic, is liable to the penalty prescribed under sub-article (1) above.
As appropriate, the provisions of the Code dealing with maltreatment, neglect and negligent treatment (articles 576, 658 – 659), and exposure to imminent danger or abandonment of a child (article 574) could also be used to prosecute offenders.
5.3. Commercial Sexual Exploitation
The Criminal Code (2005) includes provisions criminalizing the use of children in child prostitution is punishable under the provisions of the Code dealing with traffic in minors for prostitution (Articles 635 and 636).
Article 635.- Traffic in Women and Minors.
Whoever, for gain, or to gratify the passions of another: (a) traffics in women or minors, whether by seducing them, by enticing them, or by procuring them or otherwise inducing them to engage in prostitution, even with their consent; or (b) keeps such a person in a brothel to let him out to prostitution, is punishable with rigorous imprisonment not exceeding five years, and fine not exceeding ten thousand Birr, subject to the application of more severe provisions, especially where there is concurrent illegal restraint.
Article 636.- Aggravation to the Crime.
In cases of professional procuring or traffic in persons, rigorous imprisonment shall be from three years to ten years, and the fine shall not exceed twenty thousand Birr where: (a) the victim is a minor;
The Code also criminalizes the production and traffic in child pornography and pornographic performances. After imposing an overall prohibition against ‘obscene and indecent publications’ as well as ‘obscene or indecent performances’, the exhibition of such materials or use of children in the prohibited items is used as an aggravating circumstance.
Article. 640.- . Obscene or Indecent Publications.
(1) Whoever: a) makes, imports or exports, transports, receives, possesses, displays in public, offers for sale or hires, distributes or circulates writings, images, posters, films or other objects which are obscene or grossly indecent, or in any other way traffics or trades in them;
(2) Simple imprisonment shall be for not less than one year, and the fine shall not exceed ten thousand Birr, where the criminal: (b) knowingly exhibits, hands over or delivers such objects to a minor; or, (c) for this purpose displays a simulation of sexual intercourse by minors or exhibits their genitals.
Article 641.- Obscene or Indecent Performances.
The punishments specified in the preceding Article are applicable to anyone who organizes or gives public auditions or performances, in a theatre or in a cinema, by projection or by radio or television broadcast, by video, or in any other way, which are obscene or grossly indecent.
A more specific offence has also been created for the protection of minors, i.e. children, from exposure to pornographic material or performances. This provision takes an approach similar to the general prohibition of obscene or indecent publications and performances. The subject of criminalization is exposure of children to the publications and performances rather than the use of children in producing the illicit items. Here, what is being protected is the morals of children rather than their immediate safety from being caused to engage in child pornography or performances.
Article 644.- Protection of Minors.
Whoever, for gain or to provoke: (a) publicly displays by video, or in a shop window, in a booth or in any other place visible from without, writings, images or objects such as to stimulate unduly, to pervert or to misdirect the sexual instinct, or to arouse or to stimulate unduly brutal or bloodthirsty instincts, or antisocial feelings or feelings which are inimical to the family spirit, in minors; or, (b) knowingly offers, lends, gives or sells such objects, images or writings to a minor, is punishable with simple. Imprisonment from six months to three years, and fine, without prejudice to the forfeiture of the incriminating material where appropriate.
The provisions of the Code on abduction of a minor (articles 589 and 590), maltreatment, neglect and negligent treatment (articles 576, 658 – 659), exposure to imminent danger or abandonment of a child (article 574), rape (articles 620-628) and sexual outrage (articles 626 – 631) are also instrumental for concurrent prosecution of the perpetrators where applicable.
Article 626.- Sexual Outrages on Minors between the Ages of Thirteen and Eighteen Years.
(1) Whoever performs sexual intercourse with a minor of the opposite sex, who is between the ages of thirteen and eighteen years, or causes her to perform such an act with her, is punishable with rigorous imprisonment from three years to fifteen years.
(2) A woman who causes a male minor between the ages of thirteen and eighteen years, to perform sexual intercourse with her, is punishable with rigorous imprisonment not exceeding seven years.
(3) Whoever performs an act corresponding to the sexual act or any other indecent act upon a minor, of the opposite sex who is between the ages of thirteen and eighteen years, induces him to perform such an act, or deliberately performs such an act in his presence, is punishable with simple imprisonment not less than three months or with rigorous imprisonment not exceeding five years.
(5) Where the sexual outrage has caused grave bodily or mental injury to or death of the victim, the relevant provision of this Code shall apply concurrently.
Article 627.- Sexual Outrages Committed on Infants.
(1) Whoever performs sexual intercourse with a minor of the opposite sex, who is under the age of thirteen years, or causes her to perform such an act with her, is punishable with rigorous imprisonment from thirteen years to twenty-five years.
(2) A woman who causes a male minor under the age of thirteen years, to perform sexual intercourse with her, is punishable, with rigorous imprisonment not exceeding ten years.
(3) Whoever performs an act corresponding to the sexual act or any other indecent act upon a minor, of the opposite sex who is under age of thirteen years, induces him to perform such an act, or deliberately performs such an act in his presence, is punishable with rigorous imprisonment not exceeding ten years.
Article 631.- Homosexual and Other Indecent Acts Performed on Minors.
(1) Whoever performs a homosexual act on a minor, is punishable: (a) with rigorous imprisonment from three years to fifteen years, where the victim is between the ages of thirteen and eighteen years; or, (b) with rigorous imprisonment from fifteen years to twenty-five, years, where the victim is below thirteen years of age.
(2) A woman who performs a homosexual act on a female minor, is punishable with rigorous imprisonment not exceeding ten years.
(3) Whoever performs any other indecent act on a minor of the same sex, is punishable with simple imprisonment.
(5) Where the sexual outrage has caused death or grave physical or mental injury upon the victim; or Where the victim is driven to suicide by distress, shame or despair, the punishment shall be rigorous imprisonment for life.
As could be seen in the above provisions, sexual offences against children carry serious punishments extending in most cases between three years to life rigorous imprisonment. According to Article 108 of the Revised Criminal Code, “[R]igorous imprisonment is a sentence applicable only to crimes of a very grave nature committed by criminals who are particularly dangerous to society”. Finally, the Criminal Code exempts the child victim to sexual outrage or indecent act though the Court may apply appropriate measures for the child’s upbringing (Article 661/1).
The use of children in illicit activities mainly deals with the use of children in the production and trafficking of drugs, which is dealt with within the provisions of the Criminal Code (2005). The relevant article criminalizing this worst form of child labour makes the involvement of a child in the commission of the offence an aggravating circumstance on the adult offenders (Article 525/2/c). However, unlike a child victim of sexual outrage and other indecent acts, the child is also held criminally liable under the general provisions of the Criminal Code (Articles 52-56). This approach, which is in line with the international good practice, draws from the fact that there are other persons who are more direct victims of the crime committed with the involvement of the child.
6.1. Defining the Child
The different understandings of the child among the various laws and policies is a reflection of the diverse needs and rights of children for sectoral concern as well as divergence in the technicalities of the professions involved. As such, the variation is a necessary condition often serving the interests of the child. For instance, the medical needs of children as infants and adolescents are better addressed within a framework taking into account their physiological and psychological development. The classification thus serves as a form of ‘desegregation’ enabling adults to address the felt needs of the child.
6.2. Birth Registration
The revision of the rules of family law is a clear expression of commitment to international standards on child rights. This is particularly true for birth registration as is apparent from the unprecedented steps taken by the government in an attempt to address the challenges within the short and long term.
The role of community institutions and medical facilities in the registration and proof of birth/civil status may be an important tool for community awareness, capacity building and empowerment around child rights issues. Moreover, while the proportion of home births is high in Ethiopia, the rate of registration has been shown to be higher where medical institutions are responsible for birth registration. This arrangement also enables the record of health and nutritional status of the child within the available record.
6.3. Work Done by Children
Though a contract of employment is an essential feature of an employment relationship under the Proclamation, no specific form is required (subject to other laws stipulating such requirements). Moreover, the absence of a written contract does not affect the rights of the ‘worker’. This is in line with the international framework having adopted a broad understanding of ‘employment and work’ in the context of work done by children. In effect this approach at least conceptually extends the available protections to the widest possible group of children.
– Despite the permissibility of exempting selected sectors under the ILO Convention 138, the Labor Proclamation has adopted a very broad definition of an ‘undertaking’ to cover all economic sectors.
– The relationship between an apprentice and ‘employer’ is covered under the Proclamation.
– The setting of the minimum age at fourteen, the age equivalent to that for completion of primary education, is in line with the applicable international standards.
– The conditions for the engagement of young workers under the proclamation are consistent with international standards and legislative good practice.
– Despite the permissions of Convention 138 on the employment or work of persons 13 to 15 years of age on light work, the Labor Proclamation has opted not to do so. That is, the prohibition on employing children under the general minimum age is absolute under the Ethiopian labour law.
6.4. Hazardous Work
The Labor Proclamation defines ‘hazardous work’ in line with the provisions of the ILO Conventions Nos. 138 and 182. Moreover, the Proclamation elaborates on the general definition with a list on the basis of which the Minister is directed to prepare a more detailed schedule. This approach is also in line with international good practice in child labour legislation.
Having defined ‘hazardous work’ generally as well as through an indicative list, the Labor Proclamation prohibits the engagement of all ‘young persons’ in such work. Again, this is in line with both international standards and legislative good practice among States.
The statement of conditions under which a ‘young person’ may be allowed to engage in ‘hazardous work’ under the Labor Proclamation (Article 89/5) is in line with the requirements relating to the protection of the child’s health, safety and morals as well as oversight by the appropriate authority under Convention 138.
6.5. Slavery and Related
The criminal laws have prohibited forms of ‘slavery’ including enslavement, the sale of children and trafficking in children, and forced or compulsory labour. Slavery like practices like debt bondage and serfdom are also prohibited through provisions on freedom of work and coercion. Moreover, the revision of the Penal Law in the form of the Criminal Code has involved criminalization of new offences against children as well as increased penalties for pre-existing offences. As a result, the substantive penal laws of Ethiopia are almost in all cases consistent with international standards in terms of criminalizing slavery and similar practices.
The provisions of the Criminal Code, especially that relating to abduction, enslavement and trafficking for compulsory labour, deal specifically with the situation of children. Coupled with other provisions penalizing neglect and maltreatment, these child-specific provisions reflect commitment to address this category of WFCL. The enslavement of a child carries a punishment of rigorous imprisonment from ten years to twenty years while trafficking in children is subject to five to ten years of the same penalty.
6.6. Child Prostitution and Pornography
The term ‘prostitution’ has not been defined within the Criminal Code. However, the wording of the relevant provision does not appear to make any gender-based distinction. This interpretation is borne by the absence of enumerated acts constituting prostitution and the provisions protecting children of both sexes from ‘sexual outrage and other indecent acts’. Similarly, the range of acts covered in these provisions is wide enough to qualify as a broad understanding in line with standards of international good practice.
The provisions of the Criminal Code criminalizing child prostitution and child pornography carry serious penalties. Moreover, the provisions have taken into account the age of the child victim as well as the effects of the offence on the child as considerations in the definition of offences as well as in aggravating penalties. These penalties, which often times are applied concurrently with offences against the safety and wellbeing of the child victims, attest to commitment and attention to addressing the sexual exploitation of children as a matter of legislative priority.
The Criminal Code does not specifically penalize the use of children in pornographic activities, though it criminalizes the act of making, displaying, offering for sale or hire, distributing or circulating … obscene or indent writings, images, posters, films or other objects. This approach, which is often criticized as a major legislative gap, is a pragmatic approach informed by practical considerations relating to the nature of the offences and enforcement, are also justified on consideration of jurisprudence and impact. First, since the production of pornographic materials takes place in private, the preventive value of criminalization is very limited. On the other hand, seizing an article which is already in distribution is a relatively feasible law enforcement action. Moreover, one should note that the use of children in making pornography inherently involves engaging a child in the real or simulated sexual conduct. These acts are more properly addressed through the more stringent criminal law provisions on rape or sexual molestation and prosecuted under those laws. Moreover, prohibiting the product has the ultimate effect of eliminating the market that perpetuates the production of child pornography.
The Criminal Code does not criminalize the status of children forced into a life of prostitution. Rather, it targets persons who are likely to take a role in more children becoming affected and in sustaining and aggravating the situation of those already affected. The role of ‘clients’ has also been criminalized through the provisions on sexual outrage against minors and infants. The prohibition covers all children with the age of the child effectively considered as an aggravating circumstance despite the ‘separate’ definition of the offences. Moreover, the Code extends the protections under these provisions to children of both sexes as well as extending the punishable acts to include ‘homosexual and indecent acts’ showing some level of responsiveness to the actual situation.
7. Gaps and challenges
7.1. Defining the Child
The disparities between the definition of the child within various sectors often acts as a barrier to multi-sectoral response to complex issues like child labour. A case in point is the incompatibility among the monitoring frameworks across sectors collecting, analyzing and availing information on education, child justice and health. Since each sector uses a different understanding of the child, comprehensive and reliable data for indicators such as education and HIVA/AIDS or the health status of children in conflict with the law is difficult to come by.
7.2. Birth Registration
The approach adopted by the RFC in stipulating the obligation to establish the appropriate institutions while at the same time providing for immediate measures to address the gap appears to be an improvement on the status quo. However, until the stipulations are fulfilled, the birth registration system can be neither comprehensive nor uniform.
The Revised Family Code also suffers from challenges related to the jurisdiction of the Federal Government in matters of personal relations, including family law. That is, the FDRE Constitution grants the legislative mandate over personal matters to the Regional States. As such, the RFC is applicable only in the two federal city administrations, i.e. Addis Abba and Diredawa.
Even within the limited jurisdiction, the enforcement of the birth registration provisions of the RFC lacks the necessary legislative and institutional framework. Though the Criminal Code of Ethiopia (2005) makes it mandatory on parents and guardians to have the birth of a child registered, the provision cannot be applied due to the absence of a record of civil status or an officer responsible for keeping such a record.
In conclusion, one is forced to conclude that there is no official and permanent record of birth or birth registration system in Ethiopia. This conclusion puts the national response at odds with the provisions of the UNCRC, the ACRWC and applicable standards of good practice with significant adverse effects on the implementation and enforcement of the totality of child rights in Ethiopia.
7.3. Work Done by Children
Since the Labor Proclamation is the only legislation determining the minimum age for employment, exemptions to the scope of application are potential areas of work for the engagement of children below the minimum age.
Since domestic work falls within the meaning of ‘personal service’, it is not covered under the Proclamation. The anticipated Council of Ministers regulations have so far failed to materialize. Thus, the rules applicable to the relationship between household workers and employers are those found in the Civil Code (1960) which lack the protections available to adult and young workers under the Proclamation. For instance, the provisions of the Civil Code applicable to all contracts of employment (Articles 2512 - 2593) and the specific provisions on domestic service (Articles 2601 - 2604) set no minimum age and provide the bare minimum of protections in terms of conditions of work. In other words, there is no minimum age for domestic employment within the Ethiopian legal system. The Labor proclamation has also excluded unpaid work by children.
While compliant with the minimum international standards, the minimum age for employment could have been accompanied by a requirement that the child should complete primary education.
The labour proclamation does not provide for penalties for violation of the minimum age for employment. Thus, the worst the perpetrator of the violation will suffer is administrative measures generally limited to cessation of the violation. This is not consistent with the obligations stipulated under Convention No. 138 to provide for “all necessary measures, including the provision of appropriate penalties” to ensure the effective enforcement of a minimum age for entry to work.
Since the scope of application of the Labor Proclamation is limited by the exceptions, the apparent prohibition on employment of children under the general minimum age for light work does not amount to a significant protection. In fact, by failing to provide for light work the law might have missed on the opportunity to regulate such engagement of children.
Similarly, the protections of the labour code including the minimum age stipulation do not apply to ‘contracts for the purpose of educating or training other than apprentice’. This provision appears consistent with the ILO Convention No. 138 which exempts from its scope situations wherein children may work as part of formal training or education. Yet, the exemptions of the Convention are coupled with a clear definition of what constitutes work forming part of education or training as well as conditions relating to prescriptions by the competent authorities. In the absence of such limits, the exemptions under the Labor Proclamation amount to an absolute exclusion of such activities from the purview of the labour law framework. Thus, the engagement of children in work related to education and training under the Labor Proclamation, which has not been defined in the legislation, is not at all regulated by law.
– The penalties for violation of the provisions of the labour proclamation on the conditions of work for young workers are the same as those for adults.
7.4. Hazardous Work
The labour law mandates the Ministry of Labor and Social Affairs to prescribe the schedules of dangerous operations that are not to be performed by persons below the age of 18 (Article 89/4). However, such a schedule of ‘hazardous work’ has not yet been issued by the Ministry. This also precludes consideration of the possibility of consultation with employers’ and workers’ representatives in determining the types of hazardous work. What is obvious is that the Proclamation does not impose any such requirement on the Ministry.
The provisions of the labour code, including those relating to ‘hazardous work’ do not apply to ‘contracts for the purpose of educating or training other than apprentice’. On the face of it, this may be seen as compliant under the provisions of the Conventions Nos. 138 and 182 allowing the engagement of children above the general minimum age in ‘hazardous work’. But, these permissions are attended by specific conditions relating to age (at least 16), protection of health and safety, and proper training (i.e. the same protections provided under Article 89/5 of the Proclamation for ‘young workers’). On the other hand, the engagement of children in work related to education and training under the Labor Proclamation, which has not been defined in the legislation, is not at all regulated by law. Such work is even excluded from the scope of the schedule anticipated from the Minister since the schedule has to be consistent with the authorizing proclamation (amounting to a blanket exclusion of affected children from protections available under the Proclamation).
The penalty provision of the Labor Proclamation do not provide for sanctions for violation of its provisions on ‘hazardous work’. Thus, such incidents are apparently to be treated through administrative means or using the general penalty provisions. Failing this, the cases will have to qualify as a violation of the Criminal Code provisions such as those relating to child endangerment, child abuse, ill-treatment, neglect, abandonment or causing bodily injury.
7.5. Slavery and Related Practices
The Criminal Code has opted to define ‘trafficking’ in terms of its purposes, which in this case is compulsory or forced labour (trafficking for purposes of sexual exploitation is covered elsewhere). By doing so, the Code has made the end purpose an element of the crime that would need to be proved during prosecution. While the separate criminalization of enslavement and related acts may provide some relief for the issue at hand, this approach diverts significantly from the prohibition of trafficking per se under the UNCRC (Article 35), the Palermo Protocol (Article 3/a), ILO Worst Forms of Child Labour Convention No. 182 (Article 3/b) and the FDRE Constitution (Article 18/2). A preferred approach would have been independent criminalization of the process of trafficking and the exploitative purpose and application of both provisions concurrently. also poses the challenge of exhaustively listing the purposes for which trafficking.
The minimum age of military service in the Ethiopian Defense Forces, which is a volunteer army, is eighteen. However, the recruitment of children for armed conflict by non-state actors is not explicitly defined, criminalized and penalized. International good practice shows that such an approach making the practice a separate and severely punished offence is likely to be effective as a preventive measure.
7.6. Child Prostitution and Pornography
The provisions of the Criminal Code criminalizing trafficking in children for purposes of prostitution are narrowly defined in terms of the purpose for trafficking. This, as indicated in the previous section, does not conform to the applicable international standards or the provisions of the FDRE Constitution. As stated here, i.e. article 635, the provision does not even cover trafficking for the purpose of sexual abuse and exploitation in a manner other than child prostitution. The provision also appears to be lagging behind the realities of children in prostitution and their relationships with the persons who ‘benefit’ from their vulnerabilities. A case in point is the role of illegal employment agents procuring young girls for employment as ‘housemaids’, a group extremely vulnerable to sexual abuse.
The liability of persons who profit from children engaged in prostitution without engaging in acts qualifying as trafficking or keeping the children in a brothel does not appear to be covered under article 635. Such persons may for instance include owners of establishments, persons renting out rooms, etc … who indirectly benefit from child prostitution. Ideally, such a law should impose criminal responsibility on three actors: those who pimp, procure or otherwise induce children into prostitution; the users (clients) of prostitution involving children; and, those who derive a profit from children engaged in prostitution. To this end, a general prohibition of profiting from the prostitution of others or a more specific provision for child prostitution (within the limits set by the need to clearly define the offence) might have been more appropriate. By enumerating the two categories of persons, i.e. traffickers and brothel owners, the Criminal Code has apparently created an exclusive list.
The provision dealing with trafficking in children for the purpose of prostitution does not appear to anticipate situations where the victims will be transported abroad. An approach similar to the provisions on the illicit sending of persons abroad may be necessary both as a preventive and punitive measure.
The penalties for the use of children in pornographic publications and performances are limited to a maximum of simple imprisonment for a year. While this may be justified taking into account the focus of the Criminal Code on those who produce, distribute or exhibit the materials rather than the ones who have used the child for the purpose of producing pornography. However, the disproportionate level of potential punishment compared with the anticipated economic benefits of the offence may make it ineffective in relation to the primary perpetrators of sexual exploitation against the children.
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