Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Abolition of Forced Labour Convention, 1957 (No. 105) - Zimbabwe (Ratification: 1998)

The Committee notes a communication received in September 2009 from the Zimbabwe Congress of Trade Unions (ZCTU), which contains observations concerning the application of the Convention by Zimbabwe. It notes that this communication was sent to the Government in November 2009 for any comments it might wish to make on the matters raised therein. It hopes that the Government’s comments will be supplied in its next report, so as to enable the Committee to examine them at its next session.

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 1, subparagraph (a), of the Convention. Sanctions involving compulsory labour as a punishment for the expression of views opposed to the established political, social or economic system. The Committee previously noted that penalties of imprisonment (involving compulsory prison labour in virtue of section 76(1) of the Prisons Act (Cap. 7:11) and section 66(1) of the Prisons (General) Regulations 1996) may be imposed under various provisions of national legislation in circumstances falling within Article 1(a) of the Convention, namely:

(a)    sections 15, 16, 19(1)(b), (c) and 24–27 of the Public Order and Security Act (Cap. 11:17) (publishing or communicating false statements prejudicial to the State; making any false statement about or concerning the President; performing any action, uttering any words or distributing or displaying any writing, sign or other visible representation that is threatening, abusive or insulting, intending thereby to provoke a breach of peace; failure to notify the authority of the intention to hold public gathering, violation of the prohibition of public gatherings or public demonstrations, etc.);

(b)    sections 64(1)(c), (d), 72(1), (2) and 80 of the Access to Information and Protection of Privacy Act (Cap. 10:27) (abuse of freedom of expression; operating a mass media service without a registration certificate, falsification or fabrication of information or contravention of any other provision of the Act).

The Committee has also noted that sections 31 and 33 of the Criminal Law (Codification and Reform) Act (Chapter 9:23) contain provisions similar to those of the Public Order and Security Act referred to under point (a) above concerning the publishing or communicating false statements prejudicial to the State or making any false statement about or concerning the President, etc. It has also noted the provisions of sections 37 and 41 of the Criminal Law (Codification and Reform) Act, under which sanctions of imprisonment may be imposed, inter alia, for participating in meetings and gatherings with the intention of “disturbing the peace, security or order of the public”; uttering any words or distributing or displaying any writing, sign or other visible representation that is threatening, abusive or insulting, “intending thereby to provoke a breach of peace”; engaging in disorderly conduct in public place with similar intention, etc.

The Committee recalls that Article 1(a) of the Convention prohibits the use of forced or compulsory labour as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. It also refers in this connection to paragraph 154 of its General Survey of 2007 on the eradication of forced labour, where it observed that the Convention does not prohibit punishment by penalties involving compulsory labour of persons who use violence, incite to violence or engage in preparatory acts aimed at violence. But sanctions involving compulsory labour are incompatible with the Convention where they enforce a prohibition of the peaceful expression of non-violent views that are critical of government policy and the established political system, whether such prohibition is imposed by law or by a discretionary administrative decision. Since opinions and views opposed to the established system are often expressed at various kinds of meetings and assemblies, if such meetings and assemblies are subject to prior authorization granted at the discretion of the authorities and violations can be punished by sanctions involving compulsory labour, such provisions also come within the scope of the Convention (see e.g. the explanations in paragraph 162 of the General Survey referred to above).

The Committee observes that the above provisions of national law provide for penal sanctions involving compulsory labour in circumstances defined in terms which are wide enough to give rise to questions about their conformity with the Convention. It also refers in this connection to its observation addressed to the Government under Convention No. 87, likewise ratified by Zimbabwe, in which the Committee agreed with the findings and recommendations of the Committee on Freedom of Association (Case No. 2365) and noted that trade unionists were charged under the Public Order and Security Act and the Criminal Law (Codification and Reform) Act in connection with their participation in public meetings and demonstrations.

The Committee hopes that the necessary measures will be taken in order to repeal or amend the above provisions of the Public Order and Security Act and the Criminal Law (Codification and Reform) Act, in order to bring legislation into conformity with the Convention. Pending the adoption of such measures, the Committee requests the Government to provide information on the application of these provisions in practice, supplying copies of the court decisions defining or illustrating their scope.

Article 1, subparagraph (d), of the Convention. Penal sanctions involving compulsory labour for participation in strikes. In its earlier comments, the Committee referred to certain provisions of the Labour Relations Act punishing persons engaged in an unlawful collective action with sanctions of imprisonment, which involves compulsory prison labour in virtue of section 76(1) of the Prisons Act (Cap. 7:11) and section 66(1) of the Prisons (General) Regulations 1996. The Committee noted, in particular, that section 104(2), (3) of the Labour Relations Act, as amended, not only prohibits collective job action in essential services and in case of the agreement of the parties to refer the dispute to arbitration, but also provides for other restrictions on the right to collective job action related to procedural requirements, which are equally enforceable with sanctions of imprisonment (involving compulsory prison labour), under sections 109(1) and 112(1) of the Act.

As the Committee repeatedly pointed out, referring also to the explanations in paragraphs 182–187 of its General Survey of 2007 on the eradication of forced labour, it is not incompatible with the Convention to impose penalties (even involving an obligation to perform labour) for participation in strikes in essential services in the strict sense of the term (that is, services whose interruption would endanger the life, personal safety or health of the whole or part of the population) or in the situations of force majeure. However, the Committee observed that the Labour Relations Act, as amended, imposes such penalties in a wider range of circumstances (e.g. in case of violation of restrictions related to procedural requirements), which is not in conformity with the Convention. Besides, it follows from the wording of section 102(b) of the Act that the Minister can declare essential any service, other than that interruption of which would endanger the life, personal safety or health of the whole or part of the population. Furthermore, the Committee has noted that certain services listed as “essential” in section 19 of the Criminal Law (Codification and Reform) Act, such as services related to production, supply, delivery or distribution of fuel, or transport services, do not seem to satisfy the criteria of “essential services in the strict sense of the term” (see e.g. the explanations in paragraph 587 of the Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, fifth (revised) edition, 2006).

The Committee has duly noted the Government’s statement that, in practice, the right to strike takes precedence over the sanctions and that the sanctions are applicable only after the violation of the provisions of the Act. While noting these indications, the Committee expresses the firm hope that the necessary measures will be taken to ensure that the above provisions of the Labour Relations Act imposing restrictions on the right to strike enforceable with sanctions involving compulsory prison labour are limited in scope to essential services in the strict sense of the term, or to the cases of force majeure, and that no such sanctions can be imposed for the mere fact of organizing or participating in peaceful strikes in other services. It requests the Government to provide, in its next report, information on the progress made in this regard.