Definitive Report - Report No 57, 1961

Case No 248 (Senegal) - Complaint date: 16-JAN-61 - Closed

1. 20. By communication of 16 January 1961 the W.F.T.U made a complaint to the I.L.O containing allegations of violation of the exercise of trade union rights in Senegal. The complainants were informed by a letter of 27 January 1961 of their right to furnish further information in substantiation of their complaint within a period of one month, but they have not exercised this right.
2. 21. The complaint was communicated to the Government for its observations by letter of 26 January 1961. The Government replied by communication of 16 March 1961.
3. 22. The Government of Senegal has recognised that the State of Senegal remains bound by the obligations of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Government has also undertaken to continue to apply the provisions of the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), until it is able to ratify the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• Allegations relating to the Eviction of the Senegal Section of the General Union of Workers of Black Africa (U.G.T.A.N) from Premises in the Employment Office
  23. 23 The complainants allege that the secretariat of the National Union of Workers of Senegal (U.N.T.S), affiliated to the U.G.T.A.N, received on 17 November 1960 a letter dated 10 November, signed by Mr. Ibrahim Sar, Minister of Labour, requesting the organisation immediately to vacate premises at the employment office in Dakar. According to the complainants, the Minister's letter indicated that these premises had been assigned to another organisation, the Union of Workers of Senegal, which according to them is a national trade union federation favoured by the Government. The complainants state that the leaders of the U.N.T.S -U.G.T.A.N, which had rented the premises since 1946, called for an injunction against this order for eviction served without notice, but the judges before whom the matter came, after deferring judgment on two occasions, finally decided that the case fell outside their competence.
  24. 24 In its reply the Government states that the premises of the employment office at Dakar, which belong to the State, have been placed at the disposal of trade union organisations in accordance with section 27 of Act No. 25-1322 of 15 December 1952 to establish a Labour Code, under which " if the federations of trade unions so request, premises may be placed at their disposal for carrying on their activities if the Labour Advisory Board has been consulted and the Representative Assembly has considered the request ".
  25. 25 The Government indicates that the ground floor of the building concerned was originally occupied by the former Union of Federated Trade Unions of Dakar-a C.G.T union--when it was founded in 1945-46. In 1957 the Government of Senegal drew up a plan for the construction of employment offices in the principal working-class centres of the country. At that time the central trade union organisations in Dakar expressed the wish all to be housed in the same building. Consequently, in order to obviate the need to finance the construction of costly premises, the head of the Government decided in June 1957, on the recommendation of the Minister of Finance, that the premises of the employment office, the ground floor of which was then occupied by the U.G.T.A.N. (formerly affiliated to the C.G.T.) and the first floor of which was occupied by the Direct Taxation Department - should henceforth be allotted entirely to the central trade union organisations. Accordingly the Direct Taxation Department vacated the premises at the beginning of 1960 ; repair work was then begun but was not completed until the second half of 1960.
  26. 26 The Government states that the Senegal section of the U.G.T.A.N had thus, since its establishment in June 1958, been in continuous occupation of the ground floor of the employment office. The Government however adds that it was not a tenant, for it never paid any rent, but occupied the premises, which belonged to the State, free of charge. The Government considers that in these circumstances it obviously retained the right to allocate premises belonging to it to any central trade union Organisation it wished.
  27. 27 The Government states : " In letter No. 466, dated 10 November 1960, from the Minister of Labour and the Public Service to the Secretary-General of the national section of the U.G.T.A.N, the latter was invited to make the necessary arrangements for the organisations forming part of that union immediately to vacate the premises they were occupying in that building; the keys were to be handed over to the Governor of the Cap-Vert region. It will be seen that this letter in no way exceeded the rights of the Administration." The Government adds that in the end the Organisation was allowed a week to move out.
  28. 28 The Committee considers that generally the fact that a government is able to grant the occupation of premises to a particular organisation or to evict a given organisation from premises which it has been occupying in order to grant them to another organisation may, even if this is not intended, lead to the favourable or unfavourable treatment of a particular trade union as compared with others, and in this way constitute an act of discrimination. More particularly, by according favourable or unfavourable treatment to a given organisation as compared with others, a government may be able to influence the choice of workers as to the organisation which they are going to join. The right of those concerned to make a free choice in this respect is specifically provided for in Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). A government which deliberately acted in the above manner would moreover violate the principle laid down in Article 3, paragraph 2, of the Convention, that the public authorities shall refrain from any interference which would restrict the rights provided for in the Convention or impede their lawful exercise; more indirectly it would also violate the principle laid down in Article 8, paragraph 2, that the law of the land shall not be such as to impair, nor be so applied as to impair, the guarantees provided for in the Convention. It would thus seem desirable that, if a government wishes to make available certain facilities to trade union organisations, these organisations enjoy equal treatment in this respect.
  29. 29 However, there are certain special circumstances in the present case. While the complainants allege that the organisation which was evicted was tenant of premises which it had occupied for many years, the Government points out that the premises in question were in the employment office, which belongs to the State, and that they had always been occupied free of charge.
  30. 30 Moreover, it would appear from the terms of the Act of 15 December 1952 cited by the Government (see paragraph 24 above) that, while the Government had the power to make available premises in the employment office, it was under no obligation to do so, section 27 of the Act providing that " if the federations of trade unions so request, premises may be placed at their disposal for carrying on their activities ". Without denying the facts the Government claims-contrary to the complainants, who appear to allege that the decision to evict represented an abuse of powers-that the action taken by it was strictly within the exercise of its powers, the organisation in question having moreover occupied the premises of the employment office for many years.
  31. 31 In these circumstances the Committee considers that the complainants have not proved their allegation that the organisation in question was evicted from premises of which they had been tenants for many years, and therefore recommend the Governing Body to decide that, subject to the observations contained in paragraph 28 above, this aspect of the case does not call for further examination.
• Allegations relating to the Dissolution of the National Union of Workers of Senegal (U.N.T.S.)
  32. 32 The complainants allege that a strike was projected for 25 November 1960 in protest against the eviction of the U.N.T.S from its former premises. However, for fear of repressive measures, the strike was called off on 24 November. The complainants state that on 30 November 1960 the Council of Ministers adopted a decree dissolving the U.N.T.S.
  33. 33 In its reply the Government states that it is well known that the U.N.T.S, the Senegal section of the U.G.T.A.N, has consistently carried on in Senegal political activity hostile to the Government and the legally established order. When the headquarters of the U.G.T.A.N were transferred to Conakry, the Government informed the U.N.T.S that, by virtue of the Act of 1 July 1909, the U.G.T.A.N had become a foreign society and that, as the U.N.T.S was affiliated to that society, it must obtain permission to carry on its activities in Senegal. The U.N.T.S never complied with this formality. Nevertheless, the organisation in question was allowed freely to carry on its activities throughout the whole of 1959 and 1960 without hindrance by the public authorities. The moderation shown by the Government towards the U.N.T.S is explained by the Government's determination fully to comply with the international Conventions by which it is bound. The Government adds however that such moderation, which is understandable when the public authorities are functioning under normal conditions, is inconceivable in times of emergency.
  34. 34 The Government indicates that on 20 August 1960, simultaneously with the proclamation of the independence of the Republic of Senegal, the Legislative Assembly adopted Act No. 60-042 concerning the state of emergency. Under this Act a state of emergency may be proclaimed in the whole or in any part of the territory of Senegal in the event of imminent danger resulting from a serious threat to public order, subversive activities undermining internal security, or events of such a nature and gravity as to constitute a national disaster. Section 8 of the Act empowers the Minister of the Interior to prohibit " specifically or generally, any meetings of a nature to instigate or foster discord ". Further, section 13 of the Act provides that " a state of emergency is declared in all parts of Senegal for an indefinite period ".
  35. 35 The Government states that, following these events, the leaders of the Senegal section of the U.G.T.A.N, on their return from a journey to the Republic of Guinea, organised a seminar during which two resolutions were adopted, one concerning the demands of public officials and the other those of workers in the private sector. These two resolutions were sent to the Regional Inspector of Labour and Social Legislation at Dakar. In the covering letter the U.N.T.S invited the Regional Inspector to convene without delay a conciliation board with representatives of the employers' organisations.
  36. 36 According to the Government, certain of the demands contained in these resolutions concerned matters clearly outside the competence of the trade unions and several others were outside the scope of labour-management discussions. As regards the demands which might have been the subject of joint discussion with the employers' organisations, the Government points out that in law these should have been presented directly to the employers' organisations by the U.N.T.S, as a collective dispute could occur only if the employers' organisations declined to accept the claims submitted to them. The Government indicates, however, that, when the U.N.T.S brought their resolutions before the Regional Inspector of Labour, there existed no collective dispute, as the employers' organisations concerned had not yet had an opportunity of expressing their views on the demands submitted.
  37. 37 The Government claims that the leaders of the U.N.T.S purposely included demands on subjects within the competence of the public authorities alongside demands which could be dealt with by joint discussion, that they purposely submitted wild and irresponsible demands, and that the so-called labour dispute was only started with a view to disturbing public order and thereby undermining the solidity of the political organisation of the country.
  38. 38 In these circumstances, and since technically there existed no collective dispute, the Government decided that the procedure to deal with collective labour disputes should not be followed in the case of the demands made by the U.N.T.S. However, without even waiting to receive this reply, the U.N.T.S in a leaflet dated 22 November 1960 called on the workers of Senegal, in the public as well as the private sector, to come out on strike on 25 November 1960.
  39. 39 As in the Government's view these measures were obviously intended to provoke disorder in a time of emergency and were a clear attempt to disturb public order, a decree was issued on 1 December 1960 dissolving the U.N.T.S. This decree specifically referred to the illegal action of calling a strike during a period of emergency as the reason for its adoption.
  40. 40 It appears from the information before the Committee that the National Union of Workers of Senegal (U.N.T.S.) which was the Senegal section of the General Union of Workers of Black Africa (U.G.T.A.N.) failed, following the transfer of the headquarters of the U.G.T.A.N to Conakry, to comply with the requirements laid down by the Act of 1 July 1909, notwithstanding the repeated invitations by the public authorities to comply with these formalities.
  41. 41 Under the Act of 1909 foreign societies are required to obtain permission to carry on their activities on Senegalese territory. The Government considers that, by reason of the transfer of its headquarters to Conakry, the U.G.T.A.N became a foreign society subject to this Act and that the U.N.T.S, as a branch of the U.G.T.A.N, is likewise subject to this Act.
  42. 42 The Committee considers that, even if the U.G.T.A.N may be regarded by the Government as a " foreign society " within the meaning of the Act-although in fact it constitutes a regional international organisation-it would appear more difficult to understand how the mere fact of its affiliation to the U.G.T.A.N could extend the definition of " foreign society " to the U.N.T.S. While acknowledging that the organisation in question has been able freely to carry on its activities throughout 1959 and 1960 without having complied with the formalities requested of it, the Committee recommends to the Governing Body to draw the attention of the Government to the importance that national legislation on this matter should not be applied in such a manner as to contravene the principle that trade union organisations should be able to affiliate freely with international organisations of workers. This principle is laid down in Article 5 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), whose obligations Senegal has accepted.
  43. 43 As regards more particularly the circumstances in which the U.N.T.S was dissolved by the Government, it seems possible to summarise events as follows. It would appear, in the first place, that the U.N.T.S put forward a number of demands in respect of which it wished that a joint conciliation board be constituted for the settlement of the " dispute ". It would appear, however, that this procedure could not be followed since the employers had never been consulted on the workers' demands and, in the absence of a refusal by the employers to accept them, there could not in fact exist a dispute. Moreover, according to the Government, the demands in question were deliberately made by their authors in such a manner as to make collective bargaining impossible and were merely a pretext for stirring up public opinion with a view to upsetting the country's political system.
  44. 44 For the twofold reasons mentioned in the preceding paragraph the Government decided not to institute the procedure for the settlement of collective labour disputes in respect of the demands made by the U.N.T.S. However, even before the Government could inform the leaders of the U.N.T.S of its decision, they called on the workers to strike, both in the public and in the private sector. Under these conditions, as the country was in a state of emergency and as the calling of a strike in such circumstances was an illegal act, the Government dissolved the U.N.T.S by a decree setting out the reason for its action.
  45. 45 While recognising that strikes may in certain circumstances be prohibited as a consequence of a state of emergency, the Committee notes that the dissolution of the organisation in question was effected by the Government by decree. In this connection, as it has done on previous occasions', the Committee recommends the Governing Body to draw the Government's attention to the view which it has previously expressed that dissolution by the Executive in exercise of the legislative functions with which the Government is endowed, like dissolution by virtue of administrative powers, does not ensure the right of defence which normal judicial procedure alone can guarantee and to the importance which the Committee attaches to the principle laid down in Article 4 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), that workers' and employers' organisations shall not be liable to be dissolved by administrative authority.
• Allegations relating to the Arrest of Trade Union Leaders
  46. 46 The complainants allege that on 24 November 1960 seven active members of the U.N.T.S - whose names and trade union functions they specify-were arrested and that several days later Mr. N'Diaye Adama, Secretary-General of the U.N.T.S, was also arrested. These persons were, according to the complainants, released on bail on 20 December 1960 and proceedings against three of them were fixed for 26 December 1960.
  47. 47 In reply the Government states that in fact these persons were not actually arrested. It states that they were merely detained for several days for a check of identity. They were never molested or ill-treated. Apart from the short period during which they were detained for identity checks-when the legislation in force concerning the period of detention for such identity checks was never infringed-they have always been completely free. Finally, the Government states that all the persons mentioned by the complainants, including those employed by the administration, have resumed their trades and occupational activities.
  48. 48 In several previous cases which have come before the Committee in which it was alleged that trade union officers or members had been preventively detained, the Committee expressed the view that such measures of preventive detention involve a serious interference in trade union activities, which it would seem necessary to justify by the existence of a serious emergency and which would be open to criticism unless accompanied by adequate judicial safeguards applied within a reasonable period, and that it should be the policy of every government to take care to ensure the observance of human rights and, especially, of the right of all detained persons to receive a fair trial at the earliest possible moment.
  49. 49 In the present case the measures taken in respect of the persons concerned appear to be related to the state of emergency declared in the country. Further, the judicial safeguards concerning the permitted length of detention without trial appear to have been observed, the effective detention of the persons concerned having lasted only a few days.
  50. 50 Moreover, in earlier cases in which the Committee has had to examine allegations relating to the arrest of trade union officials and active trade unionists, it considered that the only question to be answered was the real reason for the arrests in question; only if these were ordered by reason of the trade union activities of the arrested persons could it be considered that a violation of freedom of association had occurred.
  51. 51 In the present case the complainants have not alleged that the arrests were made because the persons concerned were trade unionists or because of their trade union activities; they limit themselves to noting and drawing attention to the arrests. The Government, for its part, claims that the arrests were solely for the purpose of identity checks during the state of emergency.
  52. 52 Finally, it appears from the information before the Committee that all the persons mentioned by the complainants were rapidly released and that they have now freely resumed their previous activities.
  53. 53 Under these conditions the Committee recommends the Governing Body to decide that this aspect of the case does not call for further examination.
• Allegations relating to the Promulgation of Anti-Working-Class Laws
  54. 54 The complainants allege that at the end of 1960 anti-working-class laws were promulgated against democratic organisations including trade unions. The complainants state: " In accordance with this legislation, any request for assistance or the intention of accepting assistance from workers from other countries renders the person found guilty liable to a fine and a prison sentence of up to five years. Publications, including trade union journals, are required to be submitted to previous censorship."
  55. 55 In its reply the Government states that, apart from the Act proclaiming a state of emergency, no Act has amended the legislation concerning trade unions and the fundamental freedoms of the individual previously in force. On the contrary Act No. 60-045 of 25 August 1960, revising the Constitution, specifically proclaims the respect and absolute guarantee of political freedoms, trade union freedoms, the rights and freedoms of the individual, the family and local collectivities, freedom of thought and religion, the right of individual and collective ownership, and economic and social rights.
  56. 56 The Government states: " There can be no doubt that if, as is alleged in the W.F.T.U complaint, anti-working-class laws were adopted and promulgated, and in particular against democratic organisations including the trade unions, that organisation would be able to indicate the dates and places of publication of the relevant legislation. The Government of Senegal will be glad to supply the Director-General of the International Labour Office with all texts the references of which may be given in this connection."
  57. 57 The Committee notes that the complainants, on this aspect of the case, have limited themselves to making a statement which has not been supported by further details. It also observes that, although the W.F.T.U was invited to supply further information in substantiation of its complaint, it has not done so.
  58. 58 In these circumstances the Committee considers that the complainants have not furnished sufficient proof in support of the allegations which they have made regarding the promulgation of anti-working-class laws, and therefore recommends the Governing Body to decide that this aspect of the case does not call for further examination.

The Committee's recommendations

1. 59. As regards the case as a whole the Committee recommends the Governing Body:
   • (a) to decide that, for the reasons indicated in paragraphs 23 to 31 above and subject to the observations contained therein, the allegations relating to the eviction of the Senegal section of the General Union of Workers of Black Africa from premises in the employment office do not call for further examination;
   • (b) to decide, for the reasons indicated in paragraphs 46 to 53 above and subject to the observations contained therein, that the allegations relating to the arrest of trade union leaders do not call for further examination;
   • (c) to decide, for the reasons indicated in paragraphs 54 to 58 above, that the allegations relating to the promulgation of anti-working-class laws do not call for further examination;
   • (d) as regards the allegations relating to the dissolution of the National Union of Workers of Senegal:
   • (i) to draw the Government's attention to the importance that national legislation should not be applied in such a manner as to infringe the principle that trade union organisations should be able freely to affiliate with international organisations of workers, which is laid down in Article 5 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), whose obligations Senegal has accepted;
   • (ii) to draw the Government's attention to the fact that dissolution by the Executive in exercise of the legislative functions with which the Government is endowed, like dissolution by virtue of administrative powers, does not ensure the right of defence which normal judicial procedure alone can guarantee and to the importance which it attaches to the principle that workers' and employers' organisations shall not be liable to be dissolved by administrative authority, which is laid down in Article 4 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), whose obligations Senegal has accepted.