Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

Article 1(a) of the Convention. Penal 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 the continued recourse to the Public Order and Security Act (POSA) and the Criminal Law (Codification and Reform) Act to repress basic civil liberties and trade union rights. The Committee referred to the following provisions of national legislation, under which penalties of imprisonment (involving compulsory prison labour by 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 in circumstances falling within Article 1(a) of the Convention:

• -sections 15, 16, 19(1)(b), (c) and 24–27 of the POSA (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 gatherings, violation of the prohibition of public gatherings or public demonstrations, etc.);
• -sections 31 and 33 of the Criminal Law (Codification and Reform) Act (Chapter 9:23), which contain provisions similar to those of the POSA referred to under the previous point concerning the publishing or communicating false statements prejudicial to the State or making any false statement about or concerning the President, etc.;
• -sections 37 and 41 of the Criminal Law (Codification and Reform) Act (Chapter 9:23), 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 places with similar intention, etc.

In this respect, the Committee also referred to the recommendations of the Commission of Inquiry appointed under article 26 of the ILO Constitution to examine the observance by the Government of Zimbabwe of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which recommended that the POSA be brought into line with these Conventions. In this regard, the Committee also refers to the conclusions of the Conference Committee on the Application of Standards of June 2011, which requested the Government, to carry out, together with social partners, a full review of the POSA in practice, and considered that concrete steps should be taken to enable the elaboration and promulgation of clear lines of conduct for the police and security forces with regard to human and trade union rights.

The Committee notes the Government’s indication in its report that the Criminal Law (Codification and Reform) Act and the POSA are consistent with the Constitution of Zimbabwe, which ensures the general protection of the rights to freedom of conscience, expression, assembly and association.

The Committee furthermore notes that during the discussion by the United Nations Human Rights Council of the Universal Periodic Review of Zimbabwe in October 2011, concern was expressed about the Criminal Law (Codification and Reform) Act and the POSA and their effects on freedom of expression, freedom of association and assembly, and freedom of the press. The working group made numerous recommendations in order to amend the legislation and ensure the respect of these freedoms in practice, yet the Government of Zimbabwe clearly indicated that it did not support these recommendations (see A/HRC/19/14, Human Rights Council, 19 December 2011).

The Committee recalls once again 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 refers in this connection to paragraphs 302 and 303 of its 2012 General Survey on the fundamental Conventions concerning rights at work, where it observed that the Convention does not prohibit punishment by penalties involving compulsory labour of persons who use violence, incite violence or engage in preparatory acts aimed at violence. But sanctions involving compulsory labour are not in conformity with the Convention if they enforce a prohibition of the peaceful expression of non-violent views that are critical of Government policy and the established political system, whether the prohibition is imposed by law or by an administrative decision. Since opinions and views opposed to the established system may be expressed not only through the press or other communications media, but also 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.

While taking due note of the Government’s statement that section 14(2)(a) of the Constitution specifically excludes from the definition of forced labour persons who perform any labour required in consequence of the sentence or order of a court, the Committee recalls that the Convention prohibits the use of “any form” of forced or compulsory labour, including compulsory prison labour, as a punishment in respect of the persons covered by Article 1(a).

The Committee urges the Government to take the necessary measures in order to ensure that the provisions of the POSA and the Criminal Law (Codification and Reform) Act are repealed or amended, 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 and indicating the penalties imposed.

Article 1(d). Penal sanctions involving compulsory labour as a punishment for having participated in strikes. In its earlier comments, the Committee referred to certain provisions of the Labour Act punishing persons engaged in an unlawful collective action with sanctions of imprisonment, which involves compulsory prison labour by 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), and (3) of the Labour Act, as amended, not only prohibits collective job action in essential services and in the 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), (2) and 112(1) of the Act. Besides, it follows from the wording of section 102(b) of the Act that the Minister can declare as 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. The Committee recalled that Article 1(d) of the Convention prohibits the use of forced or compulsory labour as a punishment for having participated in strikes.

The Committee notes the Government’s statement in its report that these sections of the Labour Act are included in the draft Principles for the Harmonization and Review of Labour Laws in Zimbabwe, which are currently being finalized by the social partners and will be submitted to the ILO following Cabinet approval. In August 2011, the social partners agreed to the principle of streamlining mechanisms to deal with collective job action and review ministerial powers and those of the Labour Court on collective job action. This principle would provide the framework to amend section 103 defining essential services, section 104 on balloting for strike action, sections 107, 109 and 112 on excessive penalties, including lengthy periods of imprisonment and de-registration of trade unions and dismissal of employees involved in collective job action.

In these circumstances, the Committee trusts that the necessary measures will soon be taken to amend the provisions of the Labour Act imposing restrictions on the right to strike enforceable with sanctions involving compulsory prison labour, so as to ensure that no such sanctions can be imposed for the mere fact of organizing or peacefully participating in strikes. The Committee requests the Government to provide, in its next report, information on the progress made in this regard.

The Committee is raising other points in a request addressed directly to the Government.