Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

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

The Committee takes note of the Government’s report received in 2019 and the supplementary information provided in light of the decision adopted by the Governing Body at its 338th Session (June 2020).

The Committee notes the observations of the Zimbabwe Congress of Trade Unions (ZCTU) received on 1 September 2019.

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) related to 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) (Criminal Law Code) as amended in 2005 which contain provisions similar to the abovementioned sections of the POSA concerning publishing or communicating false statements prejudicial to the State; undermining authority of or insulting the President etc.; and
• -sections 37 and 41 of the Criminal Law Code under which sanctions of imprisonment may be imposed, inter alia, for participating in meetings or 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.

The Committee notes the observations made by the ZCTU that the provisions of the POSA regulating public gatherings are still used to ban trade union meetings and other protests. Although a new Bill repealing POSA entitled Maintenance of Peace and Order (MOPO) Bill is before the Parliament, this is more draconian than the POSA. The Committee also takes note of the ZCTU’s indication that 20 members of the ZCTU are facing criminal charges under section 37 of the Criminal Law for having participated in a ZCTU organised protest action in October 2018, whom if convicted will be subjected to forced labour under the Prisons Act.

The Committee notes the Government’s statement in its supplementary report that the POSA was repealed in November 2019 and replaced by the MOPO Act which sets out clearly the lines of conduct of the police and security forces. The Committee further takes note of the contents of the MOPO Bill supplied by the ZCTU along with its observations.

The Committee notes with regret that while sections 15, 19 and 21 of the POSA have been repealed, the corresponding provisions are incorporated under sections 31, 33 and 37 of the Criminal Law Code. It also notes that sections 25 to 27 of the POSA concerning failure to notify the authority of the intention to hold public gatherings, and violation of the prohibition of public gatherings or public demonstrations are reproduced under sections 7(5) and 8(11) of the MOPO Bill with sanctions of imprisonment which involve compulsory prison labour. In this regard, the Committee notes the statement made in the End of Mission Statement of the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association, on his visit to Zimbabwe in September 2019 that the MOPO Bill does not propose significant substantive amendments targeted to address the main problems prevailing in the POSA. The Bill has worrying similarities to the POSA revealing a common scope in which the exercise of the right to peaceful assembly is not fully guaranteed. Instead the MOPO Bill continues to give law enforcement agencies broad regulatory discretion and powers.

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 therefore strongly urges the Government to take the necessary measures to ensure that sections 31, 33, 37 and 41 of the Criminal Law Code and sections 7(5) and 8(11) of the MOPO Bill are repealed or amended in order to bring them into conformity with the Convention by ensuring that penalties involving compulsory labour, including sentences of imprisonment including compulsory prison labour, are not imposed on persons who hold or express political views or views ideologically opposed to the established political, social or economic system. 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. 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. Although the Government indicated that the Labour Law reform was ongoing with the participation of the social partners and that it would take into consideration the comments made by the Committee of Experts, the Committee noted that the Labour Amendment Act No. 5, promulgated in August 2015 did not align the abovementioned sections with the Convention. The Committee therefore once again urged the Government to take the necessary measures in this regard.

The Committee notes the ZCTU’s observation that no amendments have been made to the above-mentioned provisions. In this regard, the Committee had noted with deep regret the lack of progress in the labour law reform in its 2019 observations made under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (N0. 87).

The Committee notes with regret that the Government’s report does not contain any information on this point. The Committee strongly urges the Government to ensure that sections 102(b), 104(2)–(3), 109(1)–(2), and 112(1) of the Labour Act (Cap. 28:01) 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.