Definitive Report - Report No 135, March 1973

Case No 677 (Sudan) - Complaint date: 28-JUL-71 - Closed

1. 136. This case was last examined by the Committee at its 61st Session (May 1972), when it submitted to the Governing Body an interim report which is contained in paragraphs 156-175 of its 131st Report.
2. 137. At its 62nd Session (November 1972), the Committee adjourned its examination of the case since the information which the Government had supplied, in a communication dated 30 October 1972, was received too late for it to be examined in substance.
3. 138. The Sudan has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• Allegations Concerning the Execution and Imprisonment of Trade Union Leaders
  139. 139 The Committee, at its 61st Session, had recommended the Governing Body to request the Government to supply the text of the sentence under which Mr. Shafie Ahmed El Sheikh, General Secretary of the Sudanese General Federation of Workers' Trade Unions and Vice-President of the World Federation of Trade Unions, was executed (on 26 July 1971) together with the reasons for which the sentence was passed. The Committee also requested the Governing Body to request the Government to indicate the present position with regard to all the trade unionists whom the complainants had mentioned by name, and to state whether they had appeared before a national court, and if so to supply the text of the sentences pronounced and the reasons therefor.
  140. 140 In its communication dated 30 October 1972 the Government confines itself to repeating, in the case of Mr. Shafie Ahmed el Sheikh, that his execution resulted from his full participation in an attempt to overthrow the Government by force, and from his being a member of the Central Committee of the Sudan Communist Party, which had organised the attempt. His execution, states the Government, had nothing to do with his trade union activities.
  141. 141 The complainants also alleged that a very large number of trade union leaders had been arrested and imprisoned. In its communication, dated 4 August 1971, the World Federation of Teachers' Unions gave the names of five leaders who had been arrested, and stated that all but three of the thirty-two members of the Executive Committee of the Sudanese Federation of Teachers' Trade Unions had also been arrested. In its communication dated 9 August 1971 the WFTU quoted the names of three leaders who had been arrested; it mentioned one hundred names in its communication of 24 April 1972. In its communication dated 31 August 1971 the WFTU stated that the Government had decided to bring six trade union leaders before a military tribunal, including Mr. Hassan Gasmel Sayed, Secretary-General of the Sudanese General Federation of Employees and deputy member of the General Council of the WFTU, and expressed its apprehension that these persons would suffer the same fate as Mr. Shafie Ahmed el Sheikh.
  142. 142 In its communication of 30 October 1972, the Government states that those trade unionists were held in preventive detention for their active participation in the abortive attempt to overthrow the Government by force, in their capacity as members of the Sudan Communist Party. Their arrest, states the Government, had nothing to do with their trade union activities. The Government adds that 13 of the 100 names mentioned by the WFTU were not arrested, and that 2 names cannot be identified. Fifty-one of these have been released, and the remaining thirty-four are still being detained.
  143. 143 When it previously examined this case the Committee drew the attention of the Government (131st Report, paras. 163-166) to the fact that in a number of cases where the complainants alleged that trade union leaders or workers had been arrested or sentenced on account of their trade union activities and the governments' replies amounted to general denials of the allegations or were simply to the effect that the arrests were made for subversive activities, or for reasons of internal security or for common law crimes, the Committee followed the rule that the governments concerned should be requested to submit information, which should be as precise as possible, concerning the alleged measures, and in particular concerning the judicial proceedings taken, and to supply the text of the sentences pronounced, together with a statement of the reasons.
  144. 144 Furthermore, the Committee recalled that, in cases involving the arrest, detention or sentencing of a trade union official, taking the view that individuals have the right to be presumed innocent until found guilty, it has considered that it was incumbent upon the Government to show that the measures it had taken were in no way occasioned by the trade union activities of the individual concerned.
  145. 145 As regards the trade union leaders who, according to the statements made by the Government itself, are in preventive detention, the Committee also recalled that, in such cases, considering that measures of preventive detention may involve a serious interference with the exercise of trade union rights, it has always emphasised the right of all detained persons to receive a fair trial at the earliest possible moment.
  146. 146 In the light of these principles the Committee recommended the Governing Body to request the Government to supply the information mentioned in paragraph 139 above.
  147. 147 The Committee takes note with interest of the Government's statement that 51 of the trade unionists named by the complainants have been released. It regrets however that the Government continues to confine itself to replying in general terms that the trade unionists in question were preventively detained because of their participation in an attempt to overthrow the Government by force, and that the Government does not indicate whether they have been brought to trial. In this connection the Committee can only recommend the Governing Body to deplore the fact that the Government has not supplied the text of the sentence pronounced in the case of Mr. Shafie Ahmed, thus preventing the Committee from being able to reach any conclusion on this aspect of the case. In the case of the remaining trade unionists who are stated by the Government to be detained, the Committee recommends the Governing Body to draw the attention of the Government to the principle set out in paragraph 145 above and to state whether they have yet appeared before a national court, and if so, to supply the text of the judgements pronounced and the grounds adduced therefor.
• Allegations Concerning the Dissolution of Trade Unions and the Reorganisation of the Trade Union Movement
  148. 148 When the Committee previously examined this case, it had before it allegations concerning the dissolution by the Government of various federations and their affiliated unions. The Government had stated that the various federations and unions had been dissolved with the consent of the Sudanese General Federation of Workers' Trade Unions and other organisations concerned, including the Sudanese General Federation of Teachers' Trade Unions. This vas done, stated the Government, in order to reorganise the trade unions under new legislation dated 1 August 1971, which lays down that not more than one union of workers and one of employees may be established in any sector, industry or occupation and that there may not be more than one national federation of workers' unions or one national federation of employees' unions.
  149. 149 The Committee pointed out that measures of dissolution taken by the executive branch of the government in virtue of a lax giving it full powers or in exercise of legislative functions constitutes a violation of trade union rights, in so far as it does not ensure the rights of the defence, which normal judicial procedure alone can guarantee.
  150. 150 The Committee also pointed out that a situation in which a worker is denied any possibility of choice between different organisations, by reason of the fact that legislation permits the existence of only one organisation in the sector in which he carries on his occupation, is incompatible with the principles of freedom of association, since such provisions establish by legislation a trade union monopoly which must be distinguished both from union security clauses and practices and from situations in which workers voluntarily form a single organisation.)
  151. 151 The complainants had also submitted certain allegations to which the Government had not replied at the time the Committee last examined the case. These allegations concerned mainly the setting up of preparatory Committees for the unions in certain enterprises without the consent of the workers. The complainants stated, in addition, that the Minister of Public Service and Administrative Reform had taken a decision at the end of March 1972 (published in the official gazette of the Sudanese Government "Al Ayam" on 31 March 1972), in which he referred to the law of 1 August 1971 as defining clearly the task of the preparatory Committees in the formation of new organisations. According to the complainants, the Minister stated that dissension amongst the members of certain of the preparatory Committees was impeding the work of the unions, and that in order to put an end to such conflicts, he had decided to decree that the preparatory Committees should devote their efforts exclusively to the formation of new organisations and refrain from any activities, including the settlement of conflicts, until the new organisations had been formed.
  152. 152 In its communication dated 30 October 1972 the Government states that the single trade union system was not imposed on the workers but was based on their consensus. This system, continues the Government, was provided for in the consolidated Labour Code of 1970 and was re-established in the Trade Unions Act of 1971. The complainants now wished to have restored the consolidated Labour Code which provided for the single trade union system. The Government adds that this Code was drafted by a panel of more than eighty members representing workers, employers and Government and the workers' representatives comprised 50 per cent of the membership of this panel. It is noteworthy, states the Government, that Mr. Shafie Ahmed el Sheikh acted as chairman of that panel, and it is clear that the dissolved federations fully participated in its proceedings.
  153. 153 The Government states that the dissolution of all the trade unions in the country was declared on 1 August 1971 in order to implement the Trade Unions Act, 1971. The Consolidated Labour Code of 1970, the Government explains, has been suspended for revision owing to the existence of certain flaws in which led to an unreasonably high financial burden on employers and on the Government. Both the Code and the Trade Unions Act provided for the unification of the trade union movement in general by bringing together the numerous small and weak trade unions to form a reasonable number of large trade unions with subsidiary units and sub-units. The existing executive Committees of the unions were recognised as preparatory Committees responsible for re-establishing the unions according to the 1971 Act and conducting the elections under the supervision of Committees presided over by judges in order to ensure the proper conduct of the elections. Most unions, the Government states, have completed their re-establishment and have deposited their documents with the Registrar, their elections having already been conducted. The preparatory Committee of the workers' unions have chosen a secretariat to co-ordinate their activities and to prepare for the formation of their federations.
  154. 154 As regards the statement made by the Minister of Public Service and Administrative Reform, the Government states that the purpose of this was to advise the members of the preparatory Committees to refrain from individual disputes amongst themselves and to restrict their activities to the re-establishment of their organisations in accordance with the new Act. The Committees were requested to leave their disputes for settlement by the general assembly of each trade union as it would be formed under the new Act. This was done to give impetus to the building up of a strong trade union movement. The Government adds that the statement achieved its purpose, as can be seen from the activity of the unions in depositing their new Constitutions and carrying out their elections. The steps taken by the Government, with the consensus of the working people, to reorganise the trade union movement, were aimed at the preservation of trade union freedom and not at its destruction.

B. B. The Committee's conclusions

1. 155. In drawing, once again, the attention of the Government to the principles set forth in paragraphs 149 and 150 above, the Committee would also point out that it has often recalled that, while it may be to the advantage of workers to avoid a multiplicity of trade union organisations, unification of the trade union movement imposed through state intervention by legislative means runs counter to the principle that workers shall have the right to establish and join organisations of their own choosing. The Committee of Experts of the ILO on the Application of Conventions and Recommendations has emphasised on this question that "there is a fundamental difference, with respect to the guarantees of freedom of association and protection of the right to organise, between a situation in which a trade union monopoly is instituted or maintained by legislation and the factual situations which are found to exist in certain countries in which all the trade union organisations join together voluntarily in a single federation or Confederation, without this being the direct or indirect result of legislative provisions applicable to trade unions and to the establishment of trade union organisations. The fact that workers and employers generally find it in their interest to avoid a multiplication of the number of competing organisations does not, in fact, appear sufficient to justify direct or indirect intervention by the State, and, especially, intervention by the State by means of legislation". while fully appreciating the desire of any government to promote a strong trade union movement by avoiding the defects resulting from an undue multiplicity of small and competing trade unions, whose independence may be endangered by their weakness, the Committee has drawn attention to the fact that it is more desirable in such cases for a government to seek to encourage trade unions to join together voluntarily to form strong and united organisations than to impose upon them by legislation a compulsory unification which deprives the workers of the free exercise of their right of association and thus runs counter to the principles of freedom of association.

The Committee's recommendations

1. 156. In the circumstances, and with regard to the case as a whole, the Committee recommends the Governing Body:
   • (a) with regard to the execution and imprisonment of trade unionists;
   • (i) to take note with interest that 51 of the trade unionists mentioned by the complainants have been released from detention;
   • (ii) to deplore the fact that the Government has not supplied the text of the judgement pronounced in the case of Mr. Shafie Ahmed el Sheikh, thus preventing the Committee from being able to reach any conclusion on this aspect of the case;
   • (iii) in the case of the remaining trade unionists who are still in detention, to draw the attention of the Government to the principle set out in paragraph 145 above, and to request the Government, once again, to state whether they have yet appeared before a court and, if so, to supply the texts of the judgements pronounced and the grounds adduced therefor;
   • (b) with regard to the dissolution of trade unions and the reorganisation of the trade union movement, to draw the attention of the Government to the principles and considerations set out in paragraphs 149, 150 and 155 above, and to emphasise that, whatever advantages might be gained from a unified trade union movement which has been freely constituted by the workers themselves, unification of the movement imposed by legislation deprives the workers of the free exercise of their right of association and thus runs counter to the principles of freedom of association.