Interim Report - Report No 286, March 1993

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

1. 591. The International Confederation of Free Trade Unions (ICFTU) and the Organization of African Trade Union Unity (OATUU) presented complaints against the Government of Malawi, dated respectively 16 April and 29 May 1992, alleging the violation of fundamental trade union rights. The International Textile, Garment and Leather Workers' Federation expressed its support for the ICFTU complaint in a communication dated 12 May 1992.
2. 592. The Government presented its reply in a communication dated 27 January 1993.
3. 593. 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. The complainants' allegations

1. 594. In its communication of 16 April 1992, the International Confederation of Free Trade Unions (ICFTU) alleges that the Government of Malawi violated fundamental trade union rights, including freedom of association and expression.
2. 595. The complainant states that on 6 April 1992 Malawi security forces arrested Mr. Chakufwa Chihana, Secretary-General of the Southern African Trade Union Coordination Council (SATUCC), when he landed at Lilongwe airport after trade union-related meetings in Lusaka, Zambia. ICFTU indicates that Mr. Chihana had travelled from Malawi to Zambia on 1 March to attend a series of meetings sponsored by SATUCC and the Southern Africa Labour Commission (SALC). ICFTU explains that SATUCC coordinates trade union organizations throughout southern Africa, and SALC coordinates governments, employers and trade unionists from ten countries of the region.
3. 596. ICFTU further states that on the same day as Mr. Chihana's arrest, Malawi security forces arrested six other SATUCC employees at SATUCC's Lilongwe offices, namely William Chisimba, Yared Ngwira, Florence Lungu, Malitowe, Frank Mkandawire and Loyd Tembo. ICFTU alleges that the security police also ransacked and sealed SATUCC's Lilongwe offices. Thereafter, according to ICFTU, the following events occurred: Mr. Chihana and the six SATUCC employees were detained without charges; Mr. Chihana was denied the right to see his lawyer; Mr. Chihana's wife was dismissed from her government employment; and three additional SATUCC employees were forced to seek refuge in Zambia for fear of their lives, while a fourth was reported as missing. ICFTU also notes reports that security forces harassed and intimidated members of some of the detainees' families.
4. 597. ICFTU states its belief that Mr. Chihana was arrested and detained because of his trade union and political activities and that the six SATUCC employees were arrested and detained because of their trade union activities. The complainant notes that the closure of the SATUCC office and the detentions have prevented SATUCC from providing services to its constituent members. ICFTU alleges, in all, that the arrests, detentions and closing of the SATUCC offices are deliberate acts by the Government aimed at thwarting trade union activities, including the promotion of genuine freedom and political pluralism.
5. 598. In its communication of 29 May 1992, the Organization of African Trade Union Unity (OATUU) states that the Government's closure of the SATUCC office in Lilongwe has paralysed the trade union coordinating activities of SATUCC on behalf of OATUU affiliates. OATUU also indicates that the Government has not responded to pleas by OATUU, its affiliates and other international and national trade union organizations, governments and NGOs to release Mr. Chihana and reopen the SATUCC offices.

B. The Government's reply

1. 599. In its communication of 27 January 1993, the Government states that Mr. Chihana was arrested not because of his status as a trade unionist but because he was carrying out unlawful activities that "were considered contrary with the objectives of SATUCC as understood by the Malawi Government ...". Mr. Chihana does not remain in custody without charges. Rather, he was arrested on 6 April 1992 and released on bond of 3,000 Kwacha ($780) on 10 July 1992. He was rearrested on 13 July 1992 and charged with importing seditious publications, preparing to commit an act with seditious intention and unlawful possession of seditious publications. He was released on bond again on 8 August 1992 on the condition that he not make statements to the press, that he report to a government officer and that he not travel abroad without government permission.
2. 600. The Government adds that in a ruling delivered on 4 September 1992, the High Court decided that Mr. Chihana's case should be brought before a court of law. The court, on an application made by the chief public prosecutor in accordance with section 289 of the Criminal Procedure and Evidence Code (8:01) committed him for trial by the High Court. He was tried in open court in December 1992.
3. 601. On 14 December 1992, Mr. Chihana was found guilty by the High Court on two counts, namely importation of seditious publications and unlawful possession of seditious publications, contrary to section 51(2) of the Penal Code. The Government provides no further details of the case. Mr. Chihana was sentenced to 18 months' imprisonment with hard labour for the first count and 24 months of imprisonment with hard labour on the second count, the sentences to run concurrently.
4. 602. As regards the closure of the SATUCC office, the Government states that it allowed SATUCC to operate in Malawi because it recognized the important role the office could play for the development of the whole southern African subregion in the field of labour and industrial relations.
5. 603. The Government further states that the reason for closure of the SATUCC office was that Mr. Chihana abused his position by engaging in political activities contrary to the objectives of SATUCC. On 16 December 1992 the Minister of Labour met with members of the Executive Council of SATUCC to hear a request to reopen the SATUCC office. This request is currently under consideration by the Government.
6. 604. The Government finally states that freedom of association in Malawi is guaranteed by the Trade Union Act (Cap. 54:01) and Mr. Chihana's anti-Government activities and his arrest had nothing to do with legitimate trade unionism as legislated and practised in Malawi.

C. The Committee's conclusions

1. 605. The Committee notes that the present case concerned the following allegations: detention of Mr. Chakufwa Chihana, Secretary-General of the Southern African Trade Union Coordination Council (SATUCC), upon returning to Malawi after trade union-related meetings in Zambia; detention of six SATUCC employees; a raid on SATUCC's office; dismissal of Mr. Chihana's wife from her job; fears of arrest among other SATUCC employees; refusal to allow a lawyer to speak with Mr. Chihana; and threats against family members of the detainees.
2. 606. The Committee expresses its deep concern about the seriousness of the case. The Committee would recall to the Government that a genuinely free and independent trade union movement can only develop where fundamental human rights are fully respected and guaranteed (Digest, para. 68). As stated in the resolution concerning trade union rights and their relation to civil liberties adopted by the International Labour Conference in 1970, the absence of civil liberties removes all meaning from the concept of trade union rights, and the rights conferred upon workers' and employers' organizations must be based on respect for those civil liberties (Digest, para. 72).
3. 607. With regard to Mr. Chihana's arrest, the Committee takes note of the fact that he was detained for more than three months without charges and was denied the right to see a lawyer of his own choosing. The Committee recalls that detained trade unionists, like anyone else, should benefit from normal judicial proceedings and have the right to due process. That includes, in particular, the right to be informed of the charges brought against them, the right to have adequate time and facilities for the preparation of their defence and to communicate freely with counsel of their own choosing, and the right to a prompt trial by an impartial and independent judicial authority (Digest, para. 110). The Committee considers that the Government's detention of Mr. Chihana for more than three months without charges and its initial denial of his right to see the lawyer of his choice were not in conformity with these basic principles of due process.
4. 608. The Committee notes as well ICFTU's allegation that security forces arrested Mr. Chihana when he landed at Lilongwe airport after trade union-related meetings in Lusaka, Zambia, sponsored by SATUCC and the Southern Africa Labour Commission (SALC). The Government reply states generally that Mr. Chihana acted outside the objectives of SATUCC, that the charges against him did not concern trade union activities, and that Mr. Chihana was convicted of importation and possession of seditious publications. The Committee notes that while persons engaged in trade union activities, or holding trade union office, cannot claim immunity in respect of the ordinary criminal law, trade union activities should not in themselves be used by the public authorities as a pretext for the arbitrary arrest or detention of trade unionists (Digest, para. 90). In view of the fact that, according to information supplied by the Government, Mr. Chihana was convicted on charges which in the Committee's view could be related to his trade union activities, the Committee calls for his immediate release.
5. 609. With respect to the allegations that security police ransacked and closed the SATUCC offices in Lilongwe and arrested and detained six SATUCC employees, the Committee notes the Government's response that it closed the office because of the charges against Mr. Chihana. The Committee considers that the arrest of Mr. Chihana, whatever the charges, should not affect the SATUCC operations. The Committee recalls that the right to adequate protection of trade union property is one of those civil liberties which are essential for the normal exercise of trade union rights (see Digest, para. 204), and that the occupation of trade union premises may constitute a serious interference by the authorities in trade union activities (Digest, para. 202).
6. 610. The Committee also regrets that the Government has not given any information on the remaining allegations: the ransacking of the SATUCC offices; the arrests and detention of six employees; the threats against other employees and the dismissal of Mr. Chihana's wife from her job. It requests the Government to send detailed information on these matters. Further, the Committee trusts that the Government, in observation of the fundamental principles of freedom of association, 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.

The Committee's recommendations

1. 611. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (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.