Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

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) and (c), and 24–27 of the POSA: 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; and violation of the prohibition of public gatherings or public demonstrations;
• -sections 31 and 33 of the Criminal Law (Codification and Reform) Act (Chapter 9:23), which contain provisions similar to the abovementioned sections of the POSA concerning publishing or communicating false statements prejudicial to the State or making any false statement about or concerning the President, etc.; and
• -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”; and engaging in disorderly conduct in public places with similar intention.

In this respect, the Committee 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. The Committee also noted 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 (A/HRC/19/14, 19 December 2011).

The Committee notes the Government’s statement affirming the position expressed to the Human Rights Council regarding the POSA and the Criminal Law (Codification and Reform) Act. The Government states that the POSA does not apply to trade union activities, and that the issue of its previous application on trade union activities is being addressed with the social partners, within the context of the activities to implement the Commission of Inquiry’s recommendations.

In this connection, the Committee reminds the Government that the scope of Article 1(a) of the Convention is broader than trade union activities, and encompasses the freedom to express political or ideological views (which may be exercised orally or through the press and other communications media), as well as various other generally recognized rights, such as the right of association and of assembly. While 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, sanctions of imprisonment (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. Moreover, referring to paragraph 302 of its 2012 General Survey on the fundamental Conventions concerning rights at work, the Committee recalls that freedom of expression of political views is closely linked to the right of association and of assembly through which citizens seek to secure the dissemination and acceptance of their views. Therefore, provisions requiring the granting of prior authorization for meetings and assemblies at the discretion of the authorities, where violations can be punished by sanctions of imprisonment involving compulsory labour, are also not compatible with the Convention. The Committee accordingly urges the Government to take the necessary measures to ensure that the abovementioned provisions of the POSA and the Criminal Law (Codification and Reform) Act are repealed or amended, so as to ensure that no prison sentence entailing compulsory labour can be imposed on persons who, without using or advocating violence, express certain political views or opposition to the established political, social or economic system.

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 (sections 102(b), 104 (2) and (3), 109(1) and (2), and 122(1)) punishing persons engaged in an unlawful collective action with sanctions of imprisonment, which involves compulsory prison labour. However, the Committee noted the Government’s indication that these sections of the Labour Act were included in the draft Principles for the Harmonization and Review of Labour Laws in Zimbabwe. In 2011, the social partners had 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 102(b) defining essential services, section 104 on balloting for strike action, sections 107, 109 and 112 on excessive penalties, including lengthy periods of imprisonment and deregistration of trade unions and dismissal of employees involved in collective job action.

The Committee notes the Government’s statement that it is still seized with amending the Labour Act in this regard. The Government indicates that this process also has to take account of the provisions of the new Constitution of 2013. With reference to its comments under Convention No. 87, the Committee urges the Government to take the necessary measures to amend the relevant provisions of the Labour Act to ensure that no sanctions of imprisonment may be imposed for organizing or peacefully participating in strikes, in conformity with Article 1(d) of the Convention.

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