Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

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

The Committee notes the observations of the Zimbabwe Congress of Trade Unions (ZCTU) received on 1 September 2016, as well as the Government’s report.

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. In its earlier comments, the Committee noted that 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 under various provisions of national legislation in circumstances falling within Article 1(a) of the Convention, namely:

• -sections 15, 16, 19(1)(b)–(c), and 24–27 of the Public Order Security Act (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 (Cap. 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 (Cap. 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. Furthermore, the Committee referred 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 that in its observations, the ZCTU refers to the Criminal Law, alleging that the police invoke section 33 of the Criminal Law (Codification and Reform) Act (Cap. 9:23) for allegedly undermining the authority of, or insulting, the President or his office.

The Committee notes the Government’s indication in its report that the abovementioned provisions do not criminalize any person who, without using or advocating violence, express certain political views or opposition to the established political, social or economic system. The Government also states that the Constitution provides for freedom of expression and the courts always give due consideration to this right in their judgments, and therefore work exacted as a result of a court order does not constitute forced labour.

However, the Committee, in its 2015 observations made under the Convention No. 87 noted that persisting allegations have indicated that certain trade union activities have been disrupted by the police. It recalled that permission to hold public meetings and demonstrations should not be arbitrarily refused. Moreover, the Committee noted that the POSA has still not been aligned to the Constitution and the Convention, despite agreement in the Tripartite Negotiating Forum to expedite the process of legislative harmonization.

Referring to its General Survey of 2012 on the fundamental Conventions, the Committee recalls once again that Article 1(a) of the Convention prohibits the use of “any form” of forced or compulsory labour, including compulsory prison labour, as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. However, 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 (paragraphs 302–303).

The Committee strongly urges, once again, 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 (sections 102(b), 104(2)–(3), 109(1)–(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 indication that the Labour Law reform is ongoing with the participation of the social partners and the comments made by the Committee of Experts are being taken into consideration. The Committee also notes the Government’s indication in its report submitted under Convention No. 87, that the Labour Amendment Act No. 5 was promulgated in August 2015. The Committee notes however that the Labour Amendment Act No. 5 of 2015 does not align sections 102(b), 104(2)–(3), 109(1)–(2), and 122(1) of the Labour Act (Cap. 28:01, as amended in 2006) with the Convention. The Committee therefore urges once again the Government to take the necessary measures to ensure that the relevant provisions of the Labour Act are amended so 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 matters in a request addressed directly to the Government.