Report in which the committee requests to be kept informed of development - Report No 343, November 2006

Case No 2426 (Burundi) - Complaint date: 16-MAY-05 - Closed

Allegations: The complainant organization alleges several violations of freedom of association: imprisonment of trade union leaders; seizure of computer equipment and confiscation of information belonging to the trade union; suspension of several trade union leaders simply for exercising their legitimate trade union activities; interference in the activities of workers’ organizations, in particular in the trade union elections and during the Labour Day celebrations; favouritism of the authorities towards a trade union set up entirely by the Government; suspension of the right to strike during the electoral period

262. The complaint is contained in a communication from the Confederation of Trade Unions of Burundi (COSYBU) dated 16 May 2005.

1. 263. In the absence of a reply from the Government, the Committee has had to defer the examination of this case on three occasions. At its May-June 2006 meeting, the Committee made an urgent appeal to the Government, drawing its attention to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it may present a report on the substance of this case at its following meeting if the Government’s information and observations have not been received in due time [see 342nd Report, para. 10]. To date, the Government has not sent its observations.
2. 264. Burundi has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers’ Representatives Convention, 1971 (No. 135).

A. The complainant’s allegations

1. 265. In its communication of 16 May 2005, the complainant organization alleges that the Government imprisoned Mr. Pierre Claver Hajayandi and Mr. Célestin Nsavyimana, respectively the president and treasurer of the COSYBU, from 24 to 30 September 2004, due to an open letter written by the trade union leaders of Burundi to the President of the Republic, requesting him to make public the draft national Constitution and to allow the workers and all other citizens to give their views on the matter. These trade union leaders were only freed thanks to the firm intervention of the International Confederation of Free Trade Unions (ICFTU) and of Belgian, French and Italian trade union organizations. The state secret services also confiscated all of the COSYBU’s computer equipment, as well as the information it contained, for a period of three weeks.
2. 266. On 6 January 2005, the director-general of the Bujumbura textile complex imposed a 15-day lay-off on Mr. Raphaël Horumpende, second secretary of the workers’ trade union of the enterprise, for having denounced, during a meeting organized and chaired by the same director-general, the embezzlement and misappropriation of funds within the complex. In addition to the management, this meeting brought together the workers’ representatives of the works council and the trade union representatives; on the agenda was the analysis of the enterprise’s financial situation.
3. 267. On 24 March 2005, the Minister for the Public Service suspended, for a period of three months, four members of the workers’ trade union Committee of the Public Service who had been holding a strike since February 2005 to call for an improvement in their catastrophic pay situation (pay ranges from US$7 to $38 per month depending on professional category). The aim of the suspensions was to put an end to the strike and also to break the national trade union movement through repression. The workers affected by this sanction were: Mr. Denis Ngendakubwayo, Mr. Rémy Ciza, Ms. Violette Sindayihebura and Ms. Jacqueline Baransegeta. This measure was only cancelled when prior notification of a general strike was given by the COSYBU following this decision.
4. 268. On 19 April 2005, Ms. Claire Kurubone, second secretary of the workers’ trade union section of the para-governmental enterprise Laca (chemical analysis), was laid off for 15 days for having defended the pay interests of a colleague who had returned to Rwanda. This measure was only suspended once Ms. Kurubone had been forced to give up pursuing the issue in question.
5. 269. On 19 April 2005, the director of the ISTEEBU (para-governmental establishment responsible for statistical studies) imposed on the secretary-general of the workers’ union of that establishment, Mr. Jean-Marie Nkeshimana, a one-month suspension for having, in collaboration with his committee, denounced the director for embezzlement and poor management.
6. 270. On 26 April 2005, the director of the ISTEEBU imposed, on all the other members of the trade union committee of the establishment, a one-month suspension for having protested in writing against the abusive sanction on their secretary-general. Those suspended were: Mr. Antoine Gahiro, Mr. Joachim Ntisinzira, Ms. Flora Bacanamwo, Mr. Marius Ngezahayo and Ms. Grégonie Nizigama. At the time of drafting this complaint, these people were still being punished. All the trade unions registered in Burundi planned to meet on 18 May 2005 to give prior notification of a general strike if the Head of State did not react positively to a request by the trade unions to put an end to this arbitrary measure.
7. 271. Since the year 2000, the highest authorities in the Republic have been usurping the festivities of 1 May to the detriment of the workers to whom it traditionally belongs all over the world. In 2005, not only did the authorities refuse workers the opportunity to prepare the celebrations themselves, they also refused to allow the president of the COSYBU to make the speech following the workers’ march. In his place, a so-called representative of a false employers’ trade union confederation (CESEBU) spoke on behalf of the workers.
8. 272. In order to hamper the activities of the COSYBU, and in total violation of the fundamental Conventions on freedom of association ratified by Burundi, the Ministry of Labour has just written a letter to the Vice-President of the Republic and to the confederal committee of the COSYBU informing it that the mandate of the executive committee of the COSYBU expired on 29 April 2005. He orders that, from now on, the COSYBU will be managed by its confederal committee and that Mr. Pierre Claver Hajayandi may no longer legally lead it. Yet, the COSYBU congress had already been statutorily convened by the confederal committee on 6 April 2005 for 8 and 9 October 2005. The Ministry of Labour and Social Security assumes the right to dictate to the COSYBU how to organize itself and how it should be run. Rather than promoting legality, its principal concern is to interfere in the operations of employers’ and workers’ trade union organizations and to break up the emerging independent national trade union movement.
9. 273. On his own initiative, the minister has established the Trade Union Confederation of Employers of Burundi (CESEBU). He has called it a trade union confederation although no trade unions belong to it. He gave a copy of his letter to a secretary-general of the Confederation of Free Trade Unions of Burundi (CSB), which ceased to exist following its break-up in 1993 and the departure of all the member trade unions, some to become independent, the others to establish the COSYBU. Established in 1991 by the 18 federations that constituted the Union of Workers of Burundi (UTB), which had pledged allegiance to the single party, the CSB did not hold any congresses, and its last legal secretary-general was elected on 30 December 1991. The current secretary-general, in fact, was a person unknown in trade union circles until the day in 1998 when his predecessor purely and simply called him to hand over the post to him, just when he had been appointed a member of Parliament. The CSB is therefore a fictive trade union confederation, invented and maintained by the Government of Burundi to serve it as needed, in other words, in the event of conflict with the true trade unions. Nevertheless, the minister, who claims to be concerned with the issue of legality, has never written to ask it to account for its legitimacy.
10. 274. According to the COSYBU, this correspondence is a provocation to, on the one hand, justify the refusal to include the president of the COSYBU on the list of delegates to the International Labour Conference and, on the other, disrupt the COSYBU at a time when the President of the Republic has just signed, in violation of the national Constitution, a decree prohibiting any strikes during the electoral period (May-October). The COSYBU sees this decree as a violation of the national Constitution which expressly recognizes this right. The COSYBU also considers this to be a violation of fundamental human rights.
11. 275. On 8 March 2005, Mr. Serge Barahinduka, manager and workers’ representative at the works council of the Commercial Bank of Burundi, was suspended for 15 days for having written to the chief executive the day after a meeting between this authority and the staff representatives concerning new staff regulations; the staff representatives had not been involved in the preparation of these regulations. In this letter, containing arguments put forward during the meeting, the staff representative asked the chief executive not to apply the new regulations and proposed jointly drafting enterprise regulations responding to current requirements. He was subsequently accused of having insulted the higher authorities. The COSYBU denounces this excess of power and asks that the person involved have his rights re-established and that the Government respect and ensure respect for the Conventions it has ratified.

B. The Committee’s conclusions

1. 276. The Committee deeply regrets the fact that, despite the time that has passed since the complaint was submitted, the Government has not provided in due time the observations and information requested, although it has been invited to do so on a number of occasions, in particular in the form of an urgent appeal made at its May-June 2006 meeting. The Committee expresses in particular its concern that the Government has not formulated its observations in another case concerning it either (Case No. 2425), mentioned in this report. This being the case, and in accordance with the applicable procedural rule [see 127th Report of the Committee, para. 17, approved by the Governing Body at its 184th Session], the Committee must submit a report on the substance of this case in the absence of the Government’s observations, which it had hoped to receive in due time.
2. 277. The Committee reminds the Government, first, that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations concerning violations of freedom of association is to promote respect for trade union rights in law and in fact. If this procedure protects governments against unreasonable accusations, governments on their side should recognize the importance of formulating, for objective examination, detailed factual replies concerning the substance of the allegations brought against them [see First Report of the Committee, para. 31].
3. 278. The Committee notes that the complainant organization formulates the following allegations: imprisonment of trade union leaders; seizure of computer equipment and confiscation of information belonging to the trade union; suspension and lay-off of several trade union leaders who had only exercised their legitimate trade union activities; interference in the activities of workers’ organizations, in particular in the trade union elections and during the Labour Day celebrations; favouritism by the authorities towards a trade union set up entirely by the Government; suspension of the right to strike during the electoral period.
4. 279. Concerning the first set of allegations, the Committee notes that the imprisonments in question date back to 2004 and that the trade union leaders concerned appear to owe their release solely to the firm intervention of the ICFTU and other trade union organizations. The Committee expresses its concern at the nature of these allegations, and takes it that they are now a thing of the past. In this regard, the Committee reminds the Government that the arrest, even if only briefly, of trade union leaders and trade unionists for exercising legitimate trade union activities constitutes a violation of the principles of freedom of association and that the arrest of trade unionists may create an atmosphere of intimidation and fear prejudicial to the normal development of trade union activities [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 70 and 76].
5. 280. As regards the allegations concerning the seizure of computer equipment from the COSYBU for three weeks, as well as the information it contained, the Committee considers, if these allegations prove to be true, that they constitute serious interference by the authorities in trade union activities. The Committee draws the Government’s attention to the resolution on trade union rights and their relation to civil liberties, adopted by the International Labour Conference at its 54th Session (1970), which states 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, op. cit., para. 184.] The Committee asks the Government to send its observations on this matter as soon as possible and requests it to indicate the concrete reasons for this seizure of trade union property and whether it took place with a legal warrant.
6. 281. As regards the allegations concerning the suspension and lay-off of several trade union leaders simply for exercising their legitimate trade union activities, some of whom, at the time the complaint was drafted, were still being punished, the Committee, in the absence of any comments by the Government, can but deplore the large number of cases reported and recall that this type of measure seriously infringes the exercise of trade union rights. The Committee furthermore draws the Government’s attention to the provisions of the Workers’ Representatives’ Convention, 1971 (No. 135), ratified by Burundi, and the Workers’ Representatives’ Recommendation, 1971 (No. 143), in which it is expressly established that workers’ representatives should enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as workers’ representatives or on union membership, or participation in union activities in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements [see Digest, op. cit., para. 732]. The Committee asks the Government to expedite an independent inquiry into the allegations concerning, in particular, the lay-off or suspension of: Mr. Raphaël Horumpende, Mr. Denis Ngendakubwayo, Mr. Rémy Ciza, Ms. Violette Sindayihebura, Ms. Jacqueline Barasegeta, Ms. Claire Kurubone, Mr. Jean-Marie Nkeshimana, Mr. Antoine Gahiro, Mr. Joachim Ntisinzira, Mr. Marius Ngezahayo, Ms. Flora Bacanamwo, Ms. Grégonie Nizigama and Mr. Serge Barahinduka. If it is established that acts of anti-union discrimination have been committed, the Committee requests the Government to take the necessary compensatory measures, including ensuring the reinstatement of the workers concerned without loss of pay. The Committee requests the Government to keep it informed of the measures taken in this regard.
7. 282. As regards interference in the activities of workers’ organizations, in particular in the trade union elections and on the occasion of the Labour Day celebrations, which resulted in the difficulties encountered by Mr. Hajayandi and the executive committee of the COSYBU, the Committee has already had to remind the Government (Case No. 2276) that it is the prerogative of workers’ organizations to determine the conditions for electing their leaders and the authorities should refrain from any undue interference in the exercise of the right of workers’ and employers’ organizations freely to elect their representatives, which is guaranteed by Convention No. 87 [see Digest, op. cit., para. 351]. The fundamental idea of Article 3 of this Convention is that workers and employers may decide for themselves the rules which should govern the administration of their organizations and the elections which are held therein [see Digest, op. cit., para. 354]. With regard to the allegations relating particularly to the appointment of workers’ representatives to the Conference, these were addressed by the Credentials Committee at the 93rd Session (June 2005) of the International Labour Conference (see Provisional Record No. 4D, paras. 9-12). The Committee also notes that, during the last session of the Conference (June 2006), the Credentials Committee noted an improvement in the matter (see Provisional Record No. 5C, para. 9). This being the case, the Committee considers that this matter does not require a more in-depth examination.
8. 283. As regards the allegations of favouritism towards the Confederation of Free Trade Unions of Burundi (CSB), which was allegedly set up entirely by the Government, the Committee, while regretting the absence of a reply from the Government on this subject, reminds it that by putting an organization at an advantage or a disadvantage vis-à-vis other organizations, it could influence workers’ choices regarding the organization to which they intend to belong. Furthermore, a government which, knowingly, acted in this way would also be infringing the principle established in Convention No. 87, whereby public authorities must refrain from any involvement which could restrict the rights established by this instrument or hinder their legal exercise. The Committee trusts that the Government will take full account of these principles in future.
9. 284. Lastly, in respect of the decree prohibiting the exercise of the right to strike during the electoral period, the Committee considers that such a prohibition could considerably restrict the means available to trade unions to promote and defend the interests of their members, as well as the right to organize activities and their programme of action, as established in Article 3 of Convention No. 87. The Committee stresses in this connection that a general prohibition of strikes can only be justified in the event of an acute national emergency and for a limited period of time [see Digest, op. cit., para. 527]. The Committee regrets not having any information on the exact circumstances that gave rise to this prohibition nor on its exact nature. It requests the Government to confirm that the text in question is no longer in force, given that the electoral period to which the complainant organization refers has now passed.

The Committee's recommendations

1. 285. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee deeply regrets that the Government has not replied to the allegations, although it has been invited to do so on a number of occasions, including in the form of an urgent appeal and requests it to reply as soon as possible.
   • (b) The Committee asks the Government to send its observations on the subject of the seizure of computer equipment from the COSYBU as soon as possible and requests it to indicate the concrete grounds for this seizure of trade union property and whether it took place with a legal warrant.
   • (c) The Committee requests the Government to expedite an independent inquiry into the allegations concerning, in particular, the lay-off or suspension of: Mr. Raphaël Horumpende, Mr. Denis Ngendakubwayo, Mr. Rémy Ciza, Ms. Violette Sindayihebura, Ms. Jacqueline Barasegeta, Ms. Claire Kurubone, Mr. Jean-Marie Nkeshimana, Mr. Antoine Gahiro, Mr. Joachim Ntisinzira, Mr. Marius Ngezahayo, Ms. Flora Bacanamwo, Ms. Grégonie Nizigama and Mr. Serge Barahinduka. If it is established that acts of anti-union discrimination have been committed, the Committee requests the Government to take the necessary compensatory measures, including ensuring the reinstatement of the workers concerned without loss of pay. The Committee requests the Government to keep it informed of the measures taken in this regard.
   • (d) Lastly, as regards the decree prohibiting the exercise of the right to strike during the electoral period, the Committee regrets the Government’s action and requests the Government to confirm that the text in question is no longer in force, given that the electoral period to which the complainant organization refers has now passed.