Report in which the committee requests to be kept informed of development - Report No 292, March 1994

Case No 1638 (Malawi) - Complaint date: 16-APR-92 - Closed

1. 353. The Committee already examined this case at its meeting of February 1993 when it presented an interim report to the Governing Body (see 286th Report of the Committee, paras. 591-611, approved by the Governing Body at its 255th Session (March 1993)).
2. 354. At its meeting of November 1993 (see 291st Report, para. 12), the Committee noted that despite the time which had elapsed since its last examination of this case, it had still not received the observations and information requested from the Government. The Committee drew the attention of the Government to the fact that in accordance with the procedural rule established in paragraph 17 of its 127th Report, it could present a report on the substance of the case even if the information and observations from the Government had not been received on time. The Committee has not received any additional reply from the Government on this matter since the time of this urgent request.
3. 355. Malawi has not ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87). It has ratified the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 356. The allegations pending from the Committee's meeting of February 1993 are as follows: the arrest of Mr. Chakufwa Chihana, Secretary-General of the Southern African Trade Union Coordination Council (SATUCC) when he returned to Malawi after a trade union meeting in Zambia; the arrest of six SATUCC employees; the ransacking of SATUCC's offices in Lilongwe; the dismissal of Mr. Chihana's wife; the fear of dismissal by other SATUCC employees; the refusal to allow Mr. Chihana to see his lawyer; and threats against members of the detainees' families.
2. 357. At this meeting, the Committee made the following recommendations (see 286th Report of the Committee, para. 611):
   • (a) The Committee expresses its deep concern about the seriousness of the allegations and points out that a genuinely free and independent trade union movement can only develop where fundamental human rights are fully respected and guaranteed.
   • (b) Regretting that Mr. Chihana was detained for more than three months without charges and was not allowed to see the lawyer of his choice, the Committee condemns these events as being in contradiction with basic principles of freedom of association.
   • (c) The Committee calls for the immediate release of Mr. Chihana.
   • (d) The Committee requests the Government to explain fully the facts regarding the alleged ransackings of the SATUCC offices, the arrests and detention of six employees, the alleged threats against other employees, and the dismissal of Mr. Chihana's wife from her job.
   • (e) The Committee trusts that the Government will permit the prompt reopening and unrestricted operation of the SATUCC offices. It asks the Government to inform it of any measures taken in this respect.

B. The Committee's conclusions

1. 358. The Committee regrets that the Government has not provided the requested information despite the time which has lapsed since the last examination of this case and the fact that it was invited to do so on several occasions, including in an urgent appeal.
2. 359. In these circumstances, and in accordance with the applicable rules of procedure (see para. 17 of the 127th Report of the Committee, approved by the Governing Body at its 184th Session), the Committee is obliged to present a report on the substance of this case in the absence of the information which it hoped to receive from the Government.
3. 360. Firstly, the Committee reminds the Government that the purpose of the entire procedure established by the ILO for the examination of allegations of violations of freedom of association is to ensure the respect of the latter both in law and in fact. While this procedure protects governments against unreasonable accusations, they must for their part recognize that it is important, for their own reputation, to present, for the purposes of an objective examination, detailed replies to the allegations made against them (see First Report of the Committee, para. 31).
4. 361. Initially the Committee was informed - in particular through communiqués from human rights organizations - of the release of Mr. Chihana on 12 June 1993. It also learnt that in March 1993 the High Court of Malawi had reduced his sentence to nine months' imprisonment. The Committee recalls that the Government had stated that Mr. Chihana, after having been arrested and released on two occasions, was finally sentenced on 14 December 1992 respectively to 18 and 24 months' imprisonment with forced labour for the importation and illegal possession of subversive publications, the two sentences running concurrently.
5. 362. Although it welcomes the information concerning the release of Mr. Chihana, the Committee draws the Government's attention to the conclusions which it reached at its meeting of February 1993 (see 286th Report, paras. 606-608) and emphasizes the importance which it attaches to the view of the International Labour Conference that the right of assembly, freedom of opinion and expression and, in particular, freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media constitutes civil liberties which are essential for the normal exercise of trade union rights (resolution concerning trade union rights and their relation to civil liberties, adopted at the 54th Session (1970)) (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 74). The Committee urges the Government to ensure that in future trade union officials are not arrested as a result of the exercise of their legitimate trade union activities.
6. 363. As regards the allegations that on 6 April 1992 the security forces ransacked the SATUCC offices in Lilongwe and closed them down, the Committee has pointed out on many occasions that the occupation of trade union premises may constitute a serious interference by the authorities in trade union activities and that a corollary of the inviolability of trade union premises is that the public authorities may not insist on entering premises without a judicial warrant authorizing them to do so (see Digest, op. cit., paras. 202 and 203). Believing also that the closing down of trade union premises may paralyse trade union activities, the Committee requests the Government to ensure that SATUCC may once again freely use its premises at Lilongwe, without any interference by the authorities. It requests the Government to keep it informed in this respect.
7. 364. As regards the allegations concerning the arrest and imprisonment without any charges being laid on 6 April 1992 of six SATUCC employees (William Chisimba, Yared Mgwira, Florence Lungu, Malitowe, Frank Mkandawire and Loyd Tembo) because of their trade union activities, the Committee emphasizes that a genuinely free and independent trade union movement can only develop where fundamental human rights are fully respected and guaranteed (see Digest, op. cit., para. 68). It also recalls that the detention of trade union leaders for activities connected with the exercise of their trade union rights is contrary to the principles of freedom of association; furthermore, the arrest of trade union leaders against whom no criminal charges are laid involves restrictions on the exercise of trade union rights (see Digest, op. cit., paras. 87 and 89). In the light of these principles to which it attaches great importance, the Committee requests the Government to keep it informed of developments in the situation of the above-mentioned persons who were arrested and to state whether they have been released and have been enabled to resume their trade union activities.
8. 365. As regards the alleged threats made against other SATUCC employees and family members of some detainees, the Committee recalls that trade union rights can only be exercised in a climate that is free from violence, pressure or threats of any kind against trade unionists; it is for governments to ensure that this principle is respected (see Digest, op. cit., para. 70). The Committee therefore requests the Government to take all the necessary measures to ensure that this principle is effectively guaranteed in practice.
9. 366. Finally, as regards the allegations concerning the dismissal of Mr. Chihana's wife, the Committee emphasizes the importance which it attaches to the principle that no person should be prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities (see Digest, op. cit., para. 538). It requests the Government to carry out an inquiry to establish the real reasons for this dismissal and, in the event that it is shown that the person in question was dismissed for trade union activities, for her to be reinstated in her workplace. It requests the Government to keep it informed of the outcome of this inquiry.

The Committee's recommendations

1. 367. In the light of the foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Although it welcomes the release of Mr. Chihana on 12 June 1993, the Committee emphasizes the importance which it attaches to the principle that the right of assembly, freedom of opinion and expression and, in particular, freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media constitute civil liberties which are essential for the normal exercise of trade union rights, the Committee urges the Government to ensure that in future trade union officials are no longer arrested as a result of the exercise of their legitimate trade union activities.
   • (b) Recalling that the occupation of trade union premises may constitute a serious intereference by the authorities in trade union activities and that a corollary of the inviolability of trade union premises is that the public authorities may not insist on entering premises without a judicial warrant authorizing them to do so, the Committee requests the Government to take the necessary measures to ensure that SATUCC may once again freely use its premises at Lilongwe, without any interference by the authorities. It requests the Government to keep it informed in this respect.
   • (c) Emphasizing that the detention of trade union leaders for activities connected with the exercise of their trade union rights is contrary to the principles of freedom of association and that the arrest of trade union leaders against whom no criminal charges are laid involves restrictions on the exercise of trade union rights, the Committee requests the Government to keep it informed of developments in the situation of William Chisimba, Yared Mgwira, Florence Lungu, Malitowe, Frank Mkandawire and Loyd Tembo, employees of SATUCC arrested on 6 April 1992, and to state whether they have been released and have been enabled to resume their trade union activities.
   • (d) The Committee once again recalls that trade union rights can only be exercised in a climate that is free from violence, pressure or threats of any kind against trade unionists. It requests the Government to take all the necessary measures to ensure that this principle is effectively guaranteed in practice.
   • (e) Emphasizing the importance which it attaches to the principle that no person should be prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities, the Committee requests the Government to hold an inquiry with a view to establishing the real reasons for the dismissal of Mr. Chihana's wife and, in the event that it is proved that the person in question was dismissed because of her trade union activities, for her to be reinstated in her job. It requests the Government to keep it informed of the outcome of this inquiry.