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IV. The Legal Framework

Guinean law

The Guinean legislative framework provides a strong basis for protection of girls against abuse and exploitation. The Constitution (Loi fondamentale) guarantees equality of men and women. It also stipulates that primary education is compulsory.¹⁹⁶

Guinean law prohibits trafficking, labor exploitation, abuse and discrimination against children. The Penal Code outlaws trafficking of persons and proscribes penalties of up to ten years imprisonment. Article 337 prohibits “submitting a person to work conditions or accommodations that are incompatible with human dignity, by abusing her vulnerability or state of dependency.”¹⁹⁷ The Penal Code also outlaws child abduction¹⁹⁸ and physical violence against children.¹⁹⁹ If a child is assaulted by his parents, relatives or guardians, this can increase the punishment. Rape and indecent assault are specifically prohibited by articles 321-324. Indecent assault can occur with or without violence, and is punishable with five to ten years imprisonment, if the child is under the age of 13, or if the person assaulting the child is a relative.²⁰⁰

While the Guinean Labor Code does not explicitly mention domestic workers, its definition of worker is sufficiently broad so as to cover this category.²⁰¹ The Labor Code sets the minimum age for employment at 16 years; it states that employment contracts cannot be concluded with anyone under the age of 16. However the code also provides that children under 16 may be employed, if their legal guardians consent.²⁰² Girls over the age of 16 are permitted to work within certain limits. It is not a criminal offence in Guinean law to employ children in hazardous labor, but the Labor Code prohibits work at night for all persons under age 18, and stipulates that anyone under 18 has a right to rest on Sunday and to have a rest period each day of at least 12 consecutive hours.²⁰³ In addition, a special Decree on Child Labor prohibits certain types of work for children at certain ages. For example, handling dangerous machines is prohibited for all children. Girls aged 16 and 17 must not carry loads that are heavier than 10kg.²⁰⁴ However, the Child Labor Decree also reaffirms the legality of child labor for children as young as twelve, by stating that their parents have to given written consent for them to work.²⁰⁵

The Labor Code also contains a range of protections for all workers. Girls between the ages of 16 and 18 can work, as can girls under 16 if they have consent, but must be afforded their full labor rights. Anyone, independent of age and gender, can take a labor dispute or complaint to a labor tribunal; infractions may be punished with fines or even terms of imprisonment.²⁰⁶

The government is currently preparing new legislation on trafficking of women and children; this law would increase the penalties for trafficking and include specific language on sex trafficking. A gap in this proposed legislation is the failure to include specific language on trafficking into all forms of forced labor, including domestic servitude. A draft Child Code with comprehensive protections for children has also been in preparation for years, and child rights groups are awaiting its adoption by parliament. Under this law, NGOs could also intervene as parties (partie civile) to a court case to seek damages as a civil party, something for which activists within Guinean civil society have called.²⁰⁷

International law

International law, in particular several international treaty provisions to which Guinea is a party, places obligations on states to provide and enforce protection for children. These obligations are intended to prevent children becoming victims of the kind of abuses that child domestic workers are suffering. Guinea has ratified a number of international treaties which have superior status to national legislation.²⁰⁸ However, Guinea should also take steps to pass the necessary implementing legislation to ensure that courts can enforce these provisions.

Child labor

In recognition of the potential benefits of some forms of work and of the realities that require many children to enter the workforce to support their own or their families’ basic needs, international law does not prohibit children from carrying out all types of work as such. The ILO uses the term “helping hand” to speak of “non hazardous domestic tasks undertaken by a child of any age as part of daily chores in their own family home.” ²⁰⁹ It emphasizes that this work takes place a few hours a day before or after school, at a maximum. Given the harsh living conditions of many families in Africa, a limited amount of child work can sometimes even be in the best interest of the child.²¹⁰

Such work is not child labor. Child labor, as defined by the ILO, is “work that deprives children of their childhood, their potential and their dignity, and is harmful to their physical and mental development.” ²¹¹ In particular, child labor often interferes with children’s schooling by depriving them of the opportunity to attend school, obliging them to leave school prematurely or requiring them to combine school attendance with excessively long and heavy work.²¹²

International treaties address the circumstances under which children may work and define standards to protect children from the harmful consequences of child labor. Namely, children are protected from the worst forms of child labor; from working below the age of 15; and from child labor that has a negative impact upon the child’s education.²¹³

Worst Forms of Child Labor

Some types of child labor are legally defined as “worst forms of child labor.” The Worst Forms of Child Labor Convention (ILO Convention No. 182) defines this term more precisely. Among the worst forms of child labor, it lists “all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labor, including forced or compulsory recruitment of children for use in armed conflict.” Worst forms of labor also comprise “work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children.”²¹⁴ According to the ILO, this definition includes work that exposes children to physical, psychological or sexual abuse; work underground, under water, at dangerous heights or in confined spaces; work with dangerous machinery, equipment and tools, or which involves the manual handling or transport of heavy loads; work in an unhealthy environment which may expose children to hazardous substances, agents or processes, or to temperatures, noise levels, or vibrations damaging to their health; and work under particularly difficult conditions such as work for long hours or during the night or work where the child is unreasonably confined to the premises of the employers.²¹⁵ Some of these provisions are directly relevant to child domestic workers who are frequently exposed to the risk of sexual abuse, carry heavy loads, work long hours, work at night and cannot leave their employers’ premises. The Worst Forms of Child Labor Convention also highlights the particular vulnerability of hidden work situations, in which girls are at special risk.²¹⁶

Under the Worst Forms of Labor Convention, states have an obligation to set up time-bound measures to eliminate the worst forms of child labor as a priority. Such programs should provide direct assistance for the removal of children from the worst forms of child labor and for their rehabilitation and social integration; ensure access to free basic education, and, wherever possible and appropriate, vocational training, for all children removed from the worst forms of child labor; and identify and reach out to children at special risk.²¹⁷ With the support of the ILO, some countries have defined hazardous labor in their national laws. Guinea has not done so, but this could be a useful step to enforcing the ban on the worst forms of child labor.

Eighteen-year-old former domestic worker. © 2007 Susan Meiselas/Magnum Photos

Minimum age

International law requires states to set a minimum age for employment. Under the Minimum Age Convention, the minimum age for admission to employment is 15, i.e. one year under the minimum age set in Guinean law. Countries where the economy and educational facilities are insufficiently developed may set the minimum age at 14, after consultation with the organizations of employers and workers concerned.²¹⁸ However the ILO has stated that countries should aim to raise the minimum age for employment to 16 years; Guinean law by setting the minimum age at 16, is potentially, on the books at least, progressive on this issue.²¹⁹ However, the fact that this protection can be overridden by parental consent, and girls under 16 can be lawfully employed under Guinean law, means in practice that the ILO standards to which Guinea is legally bound, are not being enforced. Under international law, no minor shall do any type of employment that belongs to the worst forms of child labor.²²⁰

Labor rights

When children above the legal minimum age are employed, they have to be protected under labor laws; the conditions in which children are employed must reach and maintain a satisfactory standard. In particular, children like adults have a right to fair remuneration, based on the principle of equal pay for equal work. The number of daily and weekly hours, which children work, must be strictly limited. Overtime is prohibited, so as to allow enough time for education and training (including the time needed for homework related thereto), for rest during the day and for leisure activities. Children must have a minimum consecutive period of 12 hours night rest, and of customary weekly rest days; they have a right to an annual holiday with pay of at least four weeks and, in any case, not shorter than that granted to adults. And children must be covered by social security schemes, including employment injury, medical care and sickness benefit schemes, whatever the conditions of employment or work may be. Finally, the work place must offer satisfactory standards of safety and health and appropriate instruction and supervision.²²¹

Trafficking

Trafficking of children is prohibited by the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (the Trafficking Protocol).²²² The Protocol defines trafficking of children as follows:

The recruitment, transportation, transfer, harboring or receipt of a child for the purpose of exploitation shall be considered ‘trafficking in persons.’²²³

Exploitation is defined as follows:

Exploitation shall include, at a minimum, the exploitation or the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs.²²⁴

The definition of trafficking of adults is slightly less broad, as it only applies if certain methods are used, such as “means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person.”²²⁵ Whether children or adults, the protocol makes it clear that actions can be trafficking even if the victim has given his or her consent.²²⁶

Forced labor and practices akin to slavery

When girls are sent to work as child domestic workers, they may become victims of exploitation, as defined here, in particular victims of forced labor or services, slavery or practices similar to slavery, or servitude. These abuses are defined more in-depth in other instruments.

The Forced Labor Convention defines forced labor as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.”²²⁷ In addition, more recently, international legal instruments have also elaborated definitions of institutions and practices similar to slavery. Those practices include debt bondage, the practice of requiring debtors to provide personal services (usually work) that are not equivalent to the amount of the debt, or where the nature and length of the services are not determined. Another such practice is serfdom, the condition of a tenant who is bound to live and labor on land belonging to another person and to render a service to such person, whether for reward or not, and who is not free to change his status.²²⁸ The Trafficking Protocol also states that trafficking might be present when there is exploitation or the prostitution of others or other forms of sexual exploitation.

The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography complements the Trafficking Protocol. It defines the sale of children as any transaction whereby a child is transferred by a person or group to another for remuneration or any other consideration.²²⁹ It emphasizes that “a number of particularly vulnerable groups, including girl children, are at greater risk of sexual exploitation and that girl children are disproportionately represented among the sexually exploited.”²³⁰

The duties of parents, guardians and other persons responsible for the child

The preamble to the Convention on the Rights of the Child states that “the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding.”²³¹

The convention recognizes that many children do not live with their parents, but with other relatives or legal guardians. It stresses that these caregivers have the same duty to assure the well-being of the child. Parents, guardians and other persons in whose care a child finds himself or herself, have the “primary responsibility for the upbringing and development of the child,” and have to act in the “best interests of the child.”²³² They also have the “primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child's development.”²³³

However, if children are abused by their care givers, the state must protect children from abusive situations and, if necessary, ensure alternative care for such a child, for example through foster placement, adoption, or placement in suitable institutions for the care of children.²³⁴ Neither parenthood nor guardianship–legal or de facto–gives adults a right to exercise such control over a child that his or her rights are violated.

Right to education

The right to education is enshrined in international law. Both the Convention on the Rights of the Child and the International Covenant on Economic, Social and Cultural Rights spell this right out in some detail. States are required to make primary education compulsory and free to all,²³⁵ and to protect children from work that interferes with their education.²³⁶

The African Charter on the Rights and Welfare of the Child also recognizes the right to education, and requires countries to “take special measures in respect of female, gifted and disadvantaged children, to ensure equal access to education for all sections of the community.”²³⁷ Furthermore, the Worst Forms of Labor Convention highlights the “importance of education in eliminating child labor” and calls upon states to ensure access to free basic education and vocational training.²³⁸

Protection against discrimination and violence

The principle of non-discrimination and the obligation not to discriminate on a number of protected grounds including gender is well established in international law. Specifically, the Convention on the Rights of the Child²³⁹ and the African Charter for the Rights and Welfare of the Child²⁴⁰ protect children from discrimination based on gender. The Convention for the Elimination of All Forms of Discrimination against Women goes beyond this and requires States to take specific measures to reduce and abolish gender-related discrimination in all spheres of life.²⁴¹ In the case of Guinea, girl domestic workers frequently suffer gender discrimination from their parents and guardians. They are prevented from going to school and are subject to gender-specific labor exploitation.

Under international law, children are protected against abuses such as physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse.²⁴² While parents or legal guardians have primary responsibility for a child’s well-being, the state has to initiate legislative, administrative, social and educational measures to protect children from such abuse. These measures should include social programs to provide necessary support for children and their guardians, and programs for the identification, reporting, referral, investigation, treatment and follow-up judicial action regarding instances of maltreatment.²⁴³