IS THE ILO DEFINITION OF CHILD LABOUR A MISNOMER?

 INTRODUCTION 

The ILO’s International Programme on the Elimination of Child Labour (IPEC) defines “child labour” as:

“work that deprives children of their childhood, their potential and their dignity, and that is harmful to physical and mental development. It refers to work that:

• is mentally, physically, socially or morally dangerous and harmful to children; and/or
• interferes with their schooling by: depriving them of the opportunity to attend school; obliging them to leave school prematurely; or requiring them to attempt to combine school attendance with excessively long and heavy work”.  

The above definition seems to stem from the fact that a child has no legal capacity hence assumes that all work given to a child is abusive since the child cannot decide what is wrong or right.  On the other hand, was it an issue that children engaged in work in particular parts of the world were being abused hence to stop it, the term “Child Labour” was defined around the abuse instead of the activity of a child proving labour hence the whole idea of a child proving labour was made illegal?

Whatever the case, from the perspective of who is legally considered a child and the concept of labour in economics, I have consistently encountered difficulties with this internationally recognized definition of "Child Labour" as provided by the International Labour (ILO) and adopted by most countries in their labour laws including Ghana. Child labour, properly so defined, from the economics perspective should not be illegal but of course we must guard and legislate against the abuse of a child providing labour.

Labour is not an illegal activity, however when combining the words "child" and "labour," the resulting definition of "child labour" by the ILO makes it an illegality.  Black’s Law Dictionary defines “Child Labour” as “the employment of workers under the age of majority”, which in simple terms is really what it is. The definition, however, goes on to say the “term typically focuses on abusive practices….”  Really, why should the focus of the definition by ILO be on abusive practices? Why do we want to eliminate child labour? We should be eliminating the abuse and exploitation of child labour.

This article aims to share my reservations regarding the prevailing conception of "child labour". It seeks to juxtapose the legal definition of a child with the economics concept of labour, with the objective of proposing an alternative definition of "child labour”, by way of a child providing an economic effort. I argue that the prevailing international definition of "Child Labour", adopted by the domestic labour laws of most countries including Ghana, is misleading focusing on a negative definition whilst giving exceptions for the positives. I posit that instead, the focus of the definition should be on the positive, the child providing economic effort for a reward  with exceptions on the negative, what constitutes the abuse or exploitation.

WHAT IS THE ISSUE?

Labour, regardless of the provider, adult or child, should never be subjected to abuse, exploitation, or coercion, especially when it involves children. According to World Vision (2022), child labour is concentrated in the world’s poorest countries with about 40.7% engaged in exploitative work and that Sub-Saharan Africa has more children in child labour than the rest of the world. Is the concern about the child working or is it about the child being abused through unfavourable labour practices?

In the Third-World environment and viewed within the larger economic development matrix, should children not like birds fly like their mothers do? Should they not produce carpentry like their fathers or fish like them or farm like them, by honing in on these skills on the job? Ours is a dual economy, largely subsistent, in fact, 80 percent subsistent and the survival and sustenance of the units of society and families require all hands on deck. Work is school and school is work, this feeds into the economic development maxim, ‘nurse the baby, feed the child and free the adult (Chris King, 2024).

Historically, farming has been the main stay of the Sub-Saharan Africa and the more children one had, the more farm hands the family had to expand their farm. Children were part of family wealth creation. To the family, as said by Chris King (2024), work was school and school was work and not an abuse. To them they were giving their children the best start in life to inherent their farms. They might not have known how to read and write English to call them literate with today’s lens but they were not numerically incompetent or wisdom deficient.

Fast forward, of course times have changed. Now farming has been mechanised or technologically enabled and the need to have a lot of farm hands involving children has outlived its purpose. There is the need to allow children to be schooled differently or appropriately in line with the modern construct of education to be more productive. In any case what is schooling and who defines it? Is it some abstract physics, chemistry, biology or an appropriate science related to for example agriculture such as crop and animal science, soil science and agribusiness with hands-on practice at the farm.

Should we be concerned about the abuse of the child providing labour in any part of the world and in any field of work? or focusing on defining Child Labour that seems to be targeting particular parts of the world especially Sub-Saharan Africa? Of course, once that definition is given in a non-Sub-Saharan African lens, majority of Child Labour as defined by ILO will immediately be in Sub-Saharan Africa as reported by World Vision. A self-fulfilling prophecy.

Interestingly, certain states in the USA, at least 10, between 2021 and 2023 passed laws rolling back the stringent child labour protections. These include an extension of working hours, lifting restrictions on hazardous work and lowering age for alcohol service. All these have had to be done out of necessity, post-COVID-19, through lobbying by business groups for various reasons including the fact that children are to be paid lower wages and businesses want cheaper labour. Necessity is now lowering the standards of exploitative child work as defined by the ILO term Child Labour in certain parts of the world. Is the world being selective? In whose lens is exploitative work now being practically defined?

While acknowledging the necessity of regulating abuse of child labour, it is imperative to underscore that not all forms of child labour, properly so defined in economics, being a child providing economic effort for a reward are inherently abusive or exploitative to be illegal. This is now being championed by some states in the USA and Sub-Saharan Africa must be able to also put this issue of Child Labour in context.

WHO IS A CHILD?

A child is legal construct as follows:

• UN Convention on the Rights of a Child

Under Article 1, a child means “every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier”.

• 1992 Constitution of Ghana

Under Article 28(5), a child means “a person below the age of eighteen years”

WHAT IS LABOUR IN ECONOMICS?

Labour is an economics construct and the factors of production as we have known from economics are Land, Labour, Capital and Entrepreneurship. Labour then becomes an economics term of art. In economics, various definitions of labour exist, each addressing an aspect of human effort exerted in the production of goods and services for compensation or reward. A definition that resonates with me, articulated by the late Mr. Dadson, an economist lecturer at Mfanstipim School in Ghana, encapsulates labour as follows:

“the human economic effort, skilled or unskilled, mental or physical, applied to the production of wealth and which receives reward for the effort”.

Accordingly, there exists a distinction between "Child Labour" and "Adult Labour," with the former denoting economic effort provided by individuals under the age of 18 years and the latter referring to economic effort provided by those aged 18 years and above, simpliciter.

DERIVED DEFINITION OF CHILD LABOUR

Combining the definition of a child and labour, a derived definition for “child labour” would and should logically be:

“A person below the age of eighteen years who applies economic effort, skilled or unskilled, mental or physical, to the production of wealth and which receives reward for the effort.”

Based on this definition above, there is no inherent legal or moral wrongdoing in a child contributing economic effort to generate wealth for compensation or reward. Therefore, child labour cannot be deemed inherently unethical unless it involves exploitation or abuse.

ABUSE OF CHILD LABOUR

The focus should be on the abuse and exploitation of the child hence there is the need to replace the ILO's term of "Child Labour" with "Abuse of Child Labour", to define “Abuse of Child Labour”, instead as:

“work that deprives children of their childhood, their potential and their dignity, and that is harmful to their physical and mental development”.

This includes work that poses mental, physical, social, or moral risks to children and hinders their education by preventing school attendance, forcing premature withdrawal from school, or imposing excessively demanding workloads alongside schooling or not appropriately being rewarded for their economic effort."

This acknowledges the various forms of abuse and exploitation of labour, such as the failure to appropriately compensate children for their economic contributions and efforts,  among others as already stipulated by the ILO in their conception of their definition of Child Labour.

GHANA’S LABOUR BILL 2024 AND CHILD LABOUR

There is a labour bill in the offing in Ghana with sections on Child Labour. Section 107, prohibits child labour, properly so defined in economics, and defines Child Labour as “work that exposes the child to physical or moral hazards: or constitutes a threat to the health, education or development of the child” (emphasis mine).

Here again, it is more of describing the “abuse” of a child proving labour instead of combining the meaning of “child” and “labour” as properly so defined in law and economics respectively.

So how do external sources like dictionaries define the term “work” as used in the labour bill 2024?

Work according to:

·       Readers Digest Oxford Word Finder is “the application of mental or physical effort to a purpose”. 

·       Macmillan English Dictionary is “To have a job, usually one what you are paid for”.   

·       Black’s Law Dictionary is the “Physical and mental exertion to attain an end especially as controlled by and for the benefit of an employer; labour” and defines labour as “work of any type including mental exertion”.  

The definitions of work as outlined above and used in clause 107 in the definition of “Child Labour, therefore encompasses both the “environment” and “process” in which labour is undertaken, aiming to safeguard children providing labour as defined in economics, from physical or moral hazards and ensuring their health, education, and development are not compromised. Of course the environment and process in which a child provides labour must be made safe not the fact that the child is providing labour.

Legally, the bill has established its own interpretation of "Child Labour," aligning it with the definition provided by the ILO. We have come to learn that when legislation defines a term, it holds within the context of the law, regardless of how it may differ from common understanding. For instance, if a law defines a goat as an animal with two legs, that definition applies legally, even though goats typically have four legs. This underscores the importance of recognizing legal definitions within their specific contexts, if you want to work within the law, even if they may diverge from reality or common perception but why so? Why should law not define a term close to what it really is? “Child” and “Labour” combined should not be an undesirable term.

Law is not a master on its own, it is a slave to society. It must serve and help regulate society by shaping our individual Beliefs, Expectations, Assumptions, Concerns and Hope (BEACH) to a common and societal BEACH. In doing so, it should not deviate so much from the common understanding of societal terms or reality for it to be helpful to those that the law is to regulate.

Clauses 108 to 113, allows a child to be employed but under certain conditions. In employment, the employee provides “labour” with the employer providing a “reward”. The clauses acknowledge the fact that a child, this time, can provide labour, economic effort, for reward but within certain parameters and rightfully so. If the child is to be employed, it is essential to seek and safeguard the interests of the child at all times. Per the derived definition of Child Labour above, these sections rightfully allow child labour with conditions that guard against abuse of the child. Why then make child labour an illegality under clause 107 before allowing it?

Clause 108, stipulates the minimum age for employment of a child and hours of work. This basically stipulates the minimum age and number of hours a child is allowed to provide labour, that is work. Clause 109, allows a child who is not less than 13 years to be employed in light work. Clause 110, prohibits night work for children. Clause 111, deals with prohibition of the worst forms of child labour with Clause 112, prohibiting engaging the child in hazardous work.

Considering the derived definition of child labour, it is contradictory for Clause 107 to prohibit child labour while Clauses 108 to 113 outline conditions under which children may provide labour. This contradiction is stemming from the fact that a legal definition is being given to an economics term of art “labour” when it comes to the child.

In my opinion, “Adult Labour”, “Woman Labour”, Man Labour, should we want to distinguish, will basically describe the provision of economic effort by an adult, woman or man and so should “Child Labour” be describing the economic effort by a child. It should connote a positive definition as an economics term of art as in the derived definition above, but giving conditions for which a child should be employed as in clauses 108 to 113, making the abuse or exploitation rather punishable in law.

It is very much possible for cocoa farmers for example to be deemed guilty at sight of the ILO definition of Child Labour when children are seen, possibly using drones, working in the farm before proven innocent that they are within the allowable exceptions? Are we not supposed in law to be innocent until proven guilty? The cocoa farmer should rather be innocent of using children and exploiting them until proven guilty of not following the legislated conditions under which children should be allowed to work in farms. The conditions with respect to age limit, protective clothing, exposure to hazards, threat to the health, education or development of the child and payment of the appropriate reward need to be established for the farmer to be guilty. Per the ILO definition as adopted by the labour bill 2024, the mere use of children in cocoa farms is prima facie likely to be viewed as Child Labour with a direct negative impact on the value of the cocoa from Ghana without investigating the circumstances.  

CHILD EXPLOITATION SHOULD BE IN CONTEXT

Sub-Saharan Africa should find its own way of what child exploitation means taking cognizance of the fact that it is and will predominantly be an agricultural-based economy with the need to transfer practical on the job knowledge and skills to the youth including children to avoid being boxed in the ILO definition of Child Labour.

Education especially in the rural areas should include schooling the child in entrepreneurship and the science of agriculture, relevant to the locality. In the fishing areas, the child should have an education including the science of fishing. In the cocoa farming areas, the child should have an education including the science of cocoa farming. In the mining areas, the child should have an education including the science of mining. This will make them improve their way of doing things, from unskilled to skilled, from physical to technologically enabled practices. Yields will also improve with work being safer and environmentally friendly. The parent will appreciate the direct benefit to their line of trade to nudge the parent to send the child to the appropriately enabled schools with the hope of leaving a legacy that will bring a both win for parent and child.

A parent lawyer that owns a law firm will want the child to practice law to inherent the firm so takes the child to law school, doing attachment at the firm when not in school. A business person who owns a manufacturing company takes the child to business school, working in the company when not in school to inherent the company. Now why should we give a different form of education to the child of a parent fisherman which has nothing to do with fishing, when he wants the child to practice fishing? Who would inherent the boats to continue the family trade? How does he teach the child how to sew the fishing net when not in school? What about the goldsmith or the small-scale miners? How do they teach the child without being branded to be involved in “Child Labour” per ILO definition?

Northwest daughter of Kim Kardashian, Stormy Webster daughter of Kylie Jenner, Blue Ivy Carter daughter of Beyonce and JZ, all children, are millionaires in their own right from providing labour in the environment their parents are familiar with and know best. Depending on the lens one wants to use to judge, that could be Child Labour by ILO definition. Are they being made to combine school with engaging in excessive long work? Is exposure to celebrity status at such early age mentally harmful? Who determines that?

This brings to mind clauses 110 and 113 of the Labour Bill 2024 that needs to be reviewed. Clause 110, prohibits a child from being engaged in work at night, being the hours between eight o’clock in the evening and four o’clock in the morning. This may be understandable if the framers had menial jobs in mind hence may be deemed as exploitation of the child working during unsocial hours. However, with the digital and gig economies, the nature of work has changed, where remote work allows the youth with flexibility to work between different time zones. The universally agreed definition for youth starts at 15 years and the pension law in Ghana also allows contributions from age 15 years. It should be possible for a child, 15 years and above, to for example be involved in paid international coding projects or data input jobs. Such jobs may have to be done at night due to the time zones of the employers. This is not forward looking and youth employment friendly especially if Ghana wants to have a 24-hour economy. We need to legislate what child exploitation is in context to take advantage of the digital lifeworld.

Clause 113, allows a child between the ages of 5 to 13 years, staying with only biological parents to engage in economic activities, farm or business of parents and non-hazardous activities, outside school hours in the company of the parents or siblings. Not too sure if the framers are of the opinion that or research has shown that, most abuses or exploitation of the child is by non-biological parents. What happens if a farmer has both his children and that of other children of relatives living with him that he is taking care of? Is this clause saying he can only take his biological children to the farm? Is the bill saying biological children cannot be exploited? We do not have child support paid by the state like the developed countries do but rather look after children of relatives who do not have the means or deceased relatives in addition to ours. The family in this part of the world is not nuclear but extended with no distinguishing between our own biological children and that of our siblings. They are, in all intent and purposes, our biological children. Should the bill not take that into consideration to find an appropriate solution? Is the bill treating a child between the ages of 5 to 13 years, staying with non-biological parents and engaging in economic activity as Child Labour per the ILO definition as adopted?

The meaning of child exploitation with respect to work especially in Sub-Saharan Africa should be in context. The child should be allowed to provide paid labour under strict, protective and safe legislated guidelines or conditions to accumulate capital for their use in the future. With capital, entrepreneurial skills as well as skilled labour acquired through appropriate schooling, agriculture for example can only get better and jobs can be created.

CONCLUSION

The legal definition of who constitutes a child is well-established, while labour the provision of economic effort for reward is understood as an economics term of art. Labour by itself is not inherently illegal hence a child proving labour as child labour should not be illegal.

The examination of the legal framework surrounding child labour however reveals a nuanced perspective. From the legal perspective, the definition of "Child Labour" as internationally accepted and adopted by Ghana, presently, is more about the abuse or exploitation of children providing economic effort, hence outlawing it whilst giving the exceptions under which the child can work. A bit of a misnomer in my opinion.

We need to position “Child Labour” as a “child providing economic effort for a reward or compensation” and instead legislate the "Abuse of Child Labour" as illegal by setting the conditions for which a child can provide labour to protect the child from abuse or exploitation. As Chris King, a lawyer and an economist, put it, there are more questions on the concept of “Child Labour” than answers and that it is clear that the conflation and polemics of the words “Child” and “Labour” and its nuances will continue unabated. I cannot agree more.