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

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Eswatini (Ratification: 1978)

The Committee notes the observations received on 1 September 2019 from the International Trade Union Confederation (ITUC) alleging violence by the security forces against peaceful protest actions between August and October 2018 and in September and October 2019, as well as the Government’s reply thereon, both of which are addressed in this comment.

The Committee notes the observations of the Trade Union Congress of Swaziland (TUCOSWA) denouncing similar acts of police violence and disruption against peaceful demonstrations. TUCOSWA further alleges other violations of the Convention, including: (i) the refusal of a number of companies to recognise the Amalgamated Trade Union of Swaziland (ATUSWA) despite various Arbitration Awards in its favour, thus impairing its ability to develop programmes and activities; (ii) the unilateral declaration by the Police Commissioner of an industrial action as unlawful in September 2018; (iii) the refusal to allow a member of the Swaziland Nurses Association to represent the union during negotiations with the Government on the basis that he is no longer employed, thus violating the right of workers to elect their representatives in full freedom; and (iv) the intimidation and victimization of leaders of the Swaziland National Association of teachers (SNAT) and the Swaziland Electricity Supply Maintenance and Allied Workers Union (SESMAWU). The Committee requests the Government to provide its comments thereon.

Civil liberties and trade union rights. Police violence against peaceful demonstrations. The Committee notes that the ITUC alleges the following incidents during protest actions: (i) in September 2018, members of the ATUSWA were arrested and beaten up by the police during protests in five garment and textile factories involving more than 10,000 workers. According to the ITUC, the police resorted, without provocation, to disperse the workers using tear gas and beating them up; (ii) in October 2018, armed police invaded the Hlatikhulu Government Hospital during a lawful and peaceful protest by nurses. The strike came after a series of protests and rallies violently disrupted by the police; (iii) in September 2019, during a peaceful demonstration of civil servants organized by the SNAT, the National Association of Public Service and Allied Workers Union (NAPSAW) and the Swaziland National Government Accounting Personnel (SNAGAP), members of the police fired teargas, rubber bullets and water cannons at protesters during a march to deliver petitions to the Eswatini Royal Police Services Headquarters, the Ministry of Public Service and the Ministry of Education and Training. According to the ITUC, police intervened and began assaulting the protestors when the crowd diverged from their authorized protest route; and (iv) in October 2019, during a protest march of 8,000 workers in Manzini, the police fired live ammunition into groups of protesters injuring ten workers, including the Secretary General for NAPSAWU’s Manzini Branch (Dumisani Nkuna). According to the ITUC, further violence erupted as the protestors reached the Manzini Regional Education Office and at least 30 workers were injured. The Government resorted to the National Industrial Relations Court to have the strike declared illegal under reasons of posing “threats to national interest.” The Court handed down an interim order halting the strike action.

The Committee notes that, in reply to the observations of the ITUC, the Government informs of the setting up, in September 2019, of an Investigation Committee composed of four members, led by a senior judicial officer. The Investigation Committee was appointed to give effect to the recommendation of the Committee on Freedom of Association to initiate an independent investigation to determine the justification of the action of the police denounced by the ITUC (see 388th Report, March 2019, Case No. 2949). Otherwise, the Government recalls that the statutory Labour Advisory Board (LAB), being a tripartite advisory structure established in terms of Part III of the Industrial Relations Act, had initiated its own investigations with regard to the industrial action matters of September 2018 denounced by the ITUC. The LAB held meetings in November and December 2018 to listen to submissions from affected stakeholders including TUCOSWA, ATUSWA and SNAT, affected employers and the Police, in an effort to obtain and examine the detailed facts surrounding the conduct of these industrial actions in terms of compliance with the established legislative procedures. While the LAB was scheduled to issue findings in early 2019, this was overtaken by the decision of the Government to appoint the Independent Investigation Committee. Legal Notice No.183 of 2019 (Government Gazette of 12th September 2019) listed the functions of the Independent Investigation Committee which include: (i) determining compliance of all the industrial actions mentioned by the ITUC and TUCOSWA in their letter of complaint of September 2018, as well as the extent and justification for the involvement of the security forces in the industrial actions; (ii) investigating the alleged conduct by the police invading Hlathikhulu Government Hospital; (iii) interviewing witnesses, conducting site inspections and examining any documentary, electronic and other forms of evidence to prove or dispel elements of violence or intimidation incidental to the industrial actions mentioned by the ITUC in its letters of September 2018 and September 2019; and (iv) making findings on the conduct of the industrial actions and make recommendations on any gaps regarding the law which impact on the regulation and conduct of industrial action. On 28 September 2019, the Independent Investigation Committee extended invitation to all interested persons and stakeholders to indicate their interest to make submission. The Government states that the swift establishment of the Investigation Committee demonstrates its engagement to promote the application of the Convention.

The Government further denies the ITUC allegation that police brutality against striking workers is still prevalent and underlines that the industrial actions which took place within the period August to October 2018 are not a reflection of the general behaviour of the police against industrial actions in the country – if it is assumed that these industrial actions were characterised by police brutality. The Government indicates that during 2018 over ten other industrial actions organized by various trade unions all over the country weren’t disrupted by acts of violence or brutality from the police.

The Committee must express its concern over the serious allegations of recurrent violent attacks and disruption by security forces against peaceful trade union gatherings, including alleged violent attacks occurring after the establishment of the new Investigating Committee by the Government to improve the handling of trade union gatherings in public places. In this respect, the Committee recalls that the exercise of trade union rights is incompatible with violence or threats of any kind. It is therefore important that all allegations of violence against workers who are organizing or otherwise defending workers’ interests be thoroughly investigated with a view to establishing the facts, determining violations and responsibilities, punishing the perpetrators and preventing the recurrence of such acts. The Committee welcomes the decision of the Government to set up the Independent Investigation Committee and to extend its mandate to cover the industrial actions referred to by the ITUC in its communications of September 2019, and the police firing of live ammunition into groups of protesters in October 2019, along with those listed in the ITUC communication of September 2018. The Committee notes that the Investigation Committee was given an extended period until March 2021 to submit a report with findings and the Government’s intention to transmit the outcome of the investigations. The Committee requests the Government to provide information with regard to the outcome of the Independent Investigation Committee, as well as any measures taken by the Government as a follow-up. With reference to its previous comments, the Committee also requests the Government to provide the results of legal and mediation proceedings in cases where the unions had subsequently resorted to the Conciliation Mediation and Arbitration Commission (CMAC) and the Industrial Court.

The Government informs of the adoption of the Police Service Act (No. 22 of 2018), noting that it contains enhanced provisions in line with the promotion of the exercise of the right to freedom of association and includes provisions so that the abuse of power by members of the police may lead to disciplinary action (Section 49(1)(I)). The Government stresses the relevance of having included such provisions in the law regulating the discipline of police officers, so as to ensure the highest exercise of restraint by police officers in their line of duty for the maintenance of public safety and public order during industrial and protest actions.

Furthermore, the Government reports on the technical assistance of the Office in 2019 for the dissemination programme of the Code of Good Practice for Industrial and Protest Actions (Legal Notice No. 202 of 2015), the Code of Good Practice on Gatherings (Legal Notice No. 201 of 2017) and the Public Order Act of 2017, as a capacity-building strategy of the various stakeholders on how industrial and protest actions can be well managed in the country, in order to minimise unwarranted confrontations between protestors and members of the law enforcement agencies and Municipal Councils. Special sessions are planned for members of Parliament, Cabinet Ministers and executive leaders of trade unions. The Committee reiterates its hope that this dynamic will contribute to a conducive climate free from violence, pressure and threats of any kind on the occasion of peaceful demonstrations by workers. Noting the Government’s intention to report on the impact of the dissemination programme of the Codes of good practices, the Committee requests the Government to continue to provide information on measures taken to ensure that trade union rights to engage in protest and industrial action in defence of occupational interests are indeed protected, both in law and practice, including information on violations identified and penalties imposed pursuant to section 49(1) of the Police Service Act, No.22 of 2018.

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