Interim Report - Report No 351, November 2008

Case No 2450 (Djibouti) - Complaint date: 04-AUG-05 - Closed

Allegations: The complainant organizations allege that the Government refuses to take the necessary measures to reinstate union members dismissed in 1995 following a strike in protest against the consequences of a structural adjustment programme, despite having made a commitment in 2002 to reinstate them; continues to dismiss union officials unfairly and to harass them; and has adopted a new Labour Code spelling the end of free and independent trade unionism. Their allegations also relate to the violent suppression of a strike and the barring from entry of an international trade union solidarity mission

1. 775. The Committee last examined this case at its November 2007 session [see 348th Report, paras 533–560]. The Djibouti Union of Workers (UDT) and the General Union of Djibouti Workers (UGTD) jointly sent additional information in a communication dated 10 January 2008.
2. 776. Because of the seriousness of the allegations, at its May–June 2006 session, the Committee requested the Government to accept the visit of a direct contacts mission to the country [see 342nd Report, para. 436]. During its examination in June 2007 of the application by Djibouti of Convention No. 87, the Committee on the Application of Standards of the International Labour Conference welcomed the fact that the Government had accepted a direct contacts mission to clarify the situation with regard to the issues raised.
3. 777. Once the Government had consented, at the June 2007 session of the International Labour Conference, to the visit of the mission, arrangements were made for the visit to take place in January 2008. The Director-General appointed Mr Yéro Dé, former Minister of Labour of Senegal, as his representative in conducting the mission, which took place in Djibouti from 21 to 25 January 2008. During the direct contacts mission, the representative of the Director-General was joined by Ms Karen Curtis, Deputy Director of the International Labour Standards Department, Ms Alice Ouedraogo, Director of the Subregional Office for East Africa in Addis Ababa, and Mr Chittarath Phouangsavath, legal expert from the International Labour Standards Department. The mission report is contained in an appendix to the present report.
4. 778. As the Government did not respond to the latest information supplied by the complainant organizations, the Committee was twice obliged to postpone its examination of the case. At its meeting in June 2008 [see 350th Report, para. 10], the Committee launched an urgent appeal to the Government, indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it could present a report on the substance of the case at its next session, even if the requested observations or information had not been received in due time. To date, the Government has not sent any information.
5. 779. Djibouti has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 780. During its previous examination of the case in November 2007, the Committee made the following recommendations [see 348th Report, para. 560]:
   • (a) As regards the alleged refusal to reinstate the workers dismissed following a strike, the Committee requests the Government to keep it informed of the situation of the trade unionists who were to have been reinstated under the terms of the agreement of 8 July 2002, namely: Abdoulfatah Hassan Ibrahim; Hachim Adawe Ladieh; Houssein Dirieh Gouled; Moussa Wais Ibrahim; Abdillahi Aden Ali; Habib Ahmed Doualeh; and Bouha Daoud Ahmed. The Committee requests the Government to ensure that all workers who wish to be reinstated can be reinstated, without loss of wages or benefits, and that those who do not wish to be reinstated receive adequate compensation.
   • (b) As regards the allegations of harassment and unfair dismissals of trade union officials, the Committee requests the Government promptly to launch an independent inquiry into these allegations and into the alleged pressure put on their friends and families and, if they are found to be true, immediately to take the necessary measures to put an end to such acts of discrimination and harassment and punish those responsible. In view of the alleged dismissal of Mr Hassan Cher Hared in September 2006, the Committee considers that this is a serious case and urges the Government to launch an inquiry without delay into this recent dismissal and, if it is found that the dismissal was based on anti-union grounds, to reinstate Mr Hassan Cher Hared and pay him any wage arrears owed to him, and to keep it informed of this matter.
   • (c) As regards the intervention by the Government in strikes and trade union elections, arrests and detentions of trade union members and officials, the barring from entry of an international trade union solidarity mission, and the arrest and subsequent interrogation of the only member of the mission allowed to enter the country (an ILO official), the Committee urges the Government to reply promptly to the serious allegations made by the ICFTU.
   • (d) As regards the allegation regarding the adoption of a new “antisocial” Labour Code that violates both international Conventions and the country’s own Constitution, the Committee requests the Government to modify sections 41, 42, 214 and 215 of the Labour Code and to keep it informed of any measure adopted to that end.
   • (e) The Committee requests the Government to keep it informed of any new developments in connection with the holding of an on-the-spot direct contacts mission, and the measures taken to give effect to its recommendations.

B. New allegations

1. 781. In a communication dated 10 January 2008, the UDT and the UGTD wished to provide some clarification with regard to the issues that were still pending and which had been the subject of recommendations by the Committee. Regarding the list of dismissed workers who were to have been reinstated under the terms of the agreement of 8 July 2002, the complainant organizations indicate that some names were omitted from the list contained in the Committee’s recommendations. These were: Mr Adan Mohamed Abdou, Mr Kamil Diraneh Hared, Mr Souleiman Mohamed Ahmed, Mr Mohamed Doubad Waiss, Ms Mariam Hassan Ali and Mr Abdourachid. Regarding the reinstatement of Mr Adan Mohamed Abdou, SecretaryGeneral of the UDT, and Mr Kamil Diraneh Hared, Secretary-General of the UGTD, the complainant organizations challenge the information provided by the Government in its communication of 27 March 2007, according to which these two individuals refused to be reinstated. The complainant organizations request the Government to provide evidence of this allegation and indicate that it has never been the intention of the authorities to reinstate these two individuals or the other dismissed union members, all of whom have been prohibited from occupying any post in Djibouti, either in the public or the private sector. Some union members have chosen as a result to go into exile to escape the constant violations of their trade union rights and those of their families.
2. 782. With regard to the Labour Code, the complainant organizations indicate that it is inaccurate to say, as the Government has done, that the social partners, especially the UDT and the UGTD were consulted. They indicate, moreover, that even the Government-recognized UGTD denies having been fully consulted during the process of adopting the Labour Code. It can not be said, therefore, that a collective bargaining process was carried out in the context of this procedure.

C. The Committee’s conclusions

1. 783. The Committee deeply regrets that the Government has not provided information in response to the previous recommendations of the Committee and to the new allegations of the complainant organizations, even though it has been invited on several occasions, including by means of an urgent appeal, to submit its comments and observations on the follow-up to this case. The Committee urges the Government to be more cooperative in the future.
2. 784. Under these circumstances, in accordance with the applicable rule of procedure [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee is bound to submit a report on the substance of the case without the information it hoped to receive from the Government.
3. 785. The Committee takes note of the report of the direct contacts mission which was conducted in January 2008 and thanks the mission for the information it gathered. This detailed information will assist the Committee in its examination of the issues raised in the complaints.
4. 786. The Committee notes the spirit of cooperation shown by the Government towards the accomplishment of the direct contacts mission and the facilities that were made available to the mission. It expects that the Government will continue to show such willingness and that it will act on the commitments made during the mission.
5. 787. With regard to its previous recommendations on the reinstatement of dismissed workers following a strike under the terms of the agreement of 8 July 2002, namely Abdoulfatah Hassan Ibrahim; Hachim Adawe Ladieh; Houssein Dirieh Gouled; Moussa Wais Ibrahim; Abdillahi Aden Ali; Habib Ahmed Doualeh and Bouha Daoud Ahmed, the Committee notes that the complainant organizations indicated in a communication of 10 January 2008 that other individuals – who had not been reinstated to date – had been included in the 2002 agreement and should also be mentioned. These were: Mr Adan Mohamed Abdou, Mr Kamil Diraneh Hared, Mr Souleiman Mohamed Ahmed, Mr Mohamed Doubad Waiss, Ms Mariam Hassan Ali and Mr Abdourachid. Furthermore, the Committee notes, with regard to the reinstatement of Mr Adan Mohamed Abdou, Secretary-General of the UDT, and Mr Kamil Diraneh Hared, Secretary-General of the UGTD, that the complainant organizations contest the information provided by the Government, according to which these individuals had refused to be reinstated. The complainant organizations request the Government to provide evidence of this allegation and indicate that it has never been the intention of the authorities to reinstate these two individuals or the other dismissed union members, all of whom have been prevented from occupying any post in Djibouti, either in the public or the private sector, thereby forcing some union members to go into exile to escape the violations of their trade union rights and those of their families.
6. 788. With regard to the list of individuals who have allegedly not yet been reinstated following their dismissal in 1995, including those mentioned by the UDT and the UGTD in their communication dated 10 January 2008, the Committee notes that this list has been subject to differences of opinion but that the Government has made a commitment before the mission to carry out the necessary checks into the situation of the workers on the basis of the list provided and to inform the Office accordingly. The Committee expects that in the very near future the Government will provide the necessary clarifications on the situation of the workers mentioned both in its previous recommendations and in the list provided by the complainant organizations, in accordance with the commitment it made before the direct contacts mission.
7. 789. The Committee notes that, according to the complainant organizations interviewed by the direct contacts mission, under the agreement of 8 July 2002, signed through the mediation of an ILO mission, workers who wished to be reinstated had to make an individual request to that effect and that those who did not wish to be reinstated had to be compensated. However, the authorities had allegedly always rejected the principle of compensation and had furthermore imposed a condition for reinstatement, namely the relinquishment of trade union membership. This new condition imposed by the authorities was said to have been rejected by all concerned and therefore no progress had been made. With regard to this last point, the Committee emphasizes the importance it attaches to the principle that declarations of loyalty or other similar commitment should not be imposed as a condition for reinstatement, and it urges the Government to ensure that such declarations will not be requested in the future.
8. 790. The Committee notes that, according to the different high-level authorities interviewed by the direct contacts mission, including the Prime Minister, the issue of the 1995 dismissals was settled through a mass reinstatement process in all but a few isolated cases. This reinstatement of dismissed workers was said to be the result of political goodwill and the Government has indicated that it is ready to rectify the situation if any cases are still pending. The Committee notes in particular, with regard to the issue of compensation and arrears of pay, that:
   • – the Government has made a commitment to reinstate all the dismissed workers in their original posts or, if such reinstatement is impossible, to find them other work, and to pay the retirement contributions for these individuals;
   • – with regard to the payment of compensation, the Government has indicated that it is not opposed to the principle, if the workers agree to be reinstated in their jobs. The departments of the Ministry of Employment and National Solidarity have been given the task of conducting and concluding negotiations on the issue of reinstatement, compensation and the payment of social security contributions.
   • The Committee expects that the Government will act promptly in following up on the commitments made before the direct contacts mission concerning the reinstatement of workers dismissed in 1995 who have not yet been reinstated, the payment of compensation to these workers and arrears payments. The Committee requests the Government to inform it without delay of the situation of the negotiations and of the progress made.
9. 791. As regards the allegations relating to the adoption of a new “antisocial” Labour Code, the Committee requested the Government in its previous recommendations to amend sections 41, 42, 214 and 215 of the Labour Code. The Committee notes with interest that the Government has made a commitment to make the requested amendments and to this end would like to receive technical assistance and advice from the Office. The Committee trusts that the Government will take all the necessary measures to adopt without delay the requested amendments to the Labour Code, as discussed with the direct contacts mission, in order to give full effect to the international Conventions that it has ratified on freedom of association.
10. 792. The Committee notes that, according to the information gathered by the direct contacts mission, the draft legislative amendments will be submitted to the National Council of Labour, Employment and Vocational Training (CNTEFP) for consideration. In this regard, the Committee notes that the mission cautioned against excessive delay in the establishment of this body and the consequent impact that such a delay would have on the adoption of the necessary legislative amendments, and in particular against any decision, especially in relation to the composition of the CNTEFP, which could be a source of further tension. The Committee, noting that the CNTEFP had not been established at the time of the visit of the direct contacts mission, urged the Government to inform it as soon as possible about the establishment and composition of this body.
11. 793. As regards the allegations of harassment and unfair dismissals of trade union officials, the Committee had requested the Government to promptly launch an independent inquiry into these allegations and into the alleged pressure put on their friends and families and, if they were found to be true, immediately to take the necessary measures to put an end to such acts of discrimination and harassment and punish those responsible. Furthermore, in view of the alleged dismissal of Mr Hassan Cher Hared in September 2006, the Committee had considered it to be a serious case and had urged the Government to launch an inquiry without delay into that dismissal and, if it was found that the dismissal had been based on anti-union grounds, to reinstate Mr Hassan Cher Hared and pay him any wage arrears owed to him, and to keep it informed of the matter. The Committee urges the Government to provide without delay information on the current situation of Mr Hassan Cher Hared, including the results of any inquiry concerning his 2006 dismissal and the follow-up taken.
12. 794. As regards the allegations by the complainant organizations concerning the intervention by the Government in strikes and trade union elections, arrests and detention of trade union members and officials, the barring from entry of an international trade union solidarity mission, and the arrest and subsequent interrogation of the only member of the mission allowed to enter the country (an ILO official), the Committee took note of the observations made by the direct contacts mission on the exercise of freedom of association in Djibouti and its conclusions. The Committee notes with deep concern that, according to the information gathered by the direct contacts mission, the trade union situation in Djibouti has been characterized by a broadening gap for over a decade between certain workers’ organizations, in particular the UDT and the UGTD, and the Government and that some allegations are still pending with regard to government interference in trade union activities and with regard to the discrimination and harassment that still persists against trade union leaders. The Committee firmly recalls that a free trade union movement can develop only under a regime which guarantees fundamental rights, including the right of trade unionists to hold meetings in trade union premises, freedom of opinion expressed through speech and the press and the right of detained trade unionists to enjoy the guarantees of normal judicial procedure at the earliest possible moment [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 37].
13. 795. The Committee notes that one of the outstanding issues raised by the direct contacts mission concerns the representation of Djibouti workers at the International Labour Conference. The Committee notes that this issue has been the subject of objections and discussions in the Credentials Committee of the Conference for several years. The Committee notes that the complainant organizations proposed that the UDT and the Government-recognized UGTD should participate at the International Labour Conference, but that the UDT representative should be appointed as titular member on the basis of his organization’s representativeness. The Committee observes that the Government took note of the compromise solution proposed by the direct contacts mission following discussions to agree to include the UDT in Djibouti’s delegation at the 2008 session of the Conference, pending a clear decision on the representativeness of the workers’ organizations. Nevertheless, the Committee notes with concern that the appointment of the Djibouti Workers’ delegation had once again been the subject of an objection at the 97th Session (June 2008) of the International Labour Conference. The Committee notes in particular that the objection lodged by the UDT and the UGTD was based on the fact that the Government had failed to honour its commitments by continuing to appoint at the Conference individuals who did not represent the unions. The UDT and the UGTD allege, however, that the Workers’ technical adviser, namely Mr Mohamed Youssouf Mohamed, who was supposedly representing the UDT, had misused the organization’s letterhead and had used false signatures, on the instructions of the Government, and that the UDT had appointed some other representatives to the Conference, namely Mr Adan Mohamed Abdou, Secretary-General, and Mr Hassan Cher Hared, Secretary of International Relations, who were not accredited to the Conference as part of the Djibouti delegation. The Committee notes that, according to the explanations provided by the Government to the Committee, the nomination of the members of the Workers’ delegation had been in line with the recommendation of the direct contacts mission to include the UDT in Djibouti’s delegation for the 2008 session of the Conference, pending the organization of social elections. As for the nomination of the UDT representative in the Workers’ delegation, it was indicated that the nomination was the result of a normal written consultation procedure and that the Government had merely taken note of the name communicated by the representative, as president of the UDT.
14. 796. The Committee observes that the Credentials Committee noted that it been given contradictory information about the capacity of the members of the UDT, its statute, the exact role of the Workers’ technical adviser who was supposedly representing the UDT in the organization and on the conditions under which its Secretary-General, Mr Adan Mohamed Abdou might have been relieved of his functions. Noting the inclusion of the UDT in the Workers’ delegation, the Credentials Committee regretted that the procedure used to nominate the Workers’ representative had not taken place within a consultation process based on objective and verifiable criteria and in full independence. In addition, it indicated that, according to the information available to it, the representative of the UDT to the Conference had not been chosen independently and without interference by the Government. The consequence of this had been to propose to the Conference to invalidate the credentials of the representative in question. However, the Committee considered that the objection raised questions that went beyond those concerning exclusively the nomination of the Workers’ delegation to the Conference. These questions reflected violations of the principle of freedom of association and interference of the Government in trade union matters. The Credentials Committee urged the Government to guarantee the implementation of a procedure based on objective and transparent criteria for the nomination of the Workers’ representatives in future sessions of the Conference. It trusted that the nomination could be finally made in the spirit of cooperation between all the parties concerned, in a climate of confidence that fully respected the ability of the workers’ organizations to act in total independence from the Government [see ILC, 97th Session, 2008, Provisional Record No. 4A, paras 25–37]. The Committee expresses its deep concern with regard to these circumstances, which once again highlight the seriousness of the situation relating to the trade union climate in Djibouti and endorses the conclusions of the Credentials Committee. The Committee urges the Government to indicate the measures taken to guarantee the implementation of objective and transparent criteria for the nomination of Workers’ representatives at the International Labour Conference.
15. 797. In general terms, the Committee urges the Government to give priority to promoting and safeguarding freedom of association and act promptly in following up on the specific commitments that it made before the direct contacts mission to resolve all the pending issues and therefore facilitate a transparent and sustainable social dialogue in Djibouti. Recalling that some of the events and disputes in this case date back to 1995, the Committee expects that the Government will inform it without delay of any progress made in this regard.

The Committee's recommendations

1. 798. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With regard to the reinstatement of workers dismissed in 1995, following a strike, who have not yet been reinstated, the Committee expects that the Government will provide in the very near future the necessary clarifications on the situation of the workers mentioned in its previous recommendations as well as those whose names appear on the list provided by the complainant organizations, in accordance with the commitment it made before the direct contacts mission.
   • (b) The Committee expects that the Government will act promptly in following up on the commitments made before the direct contacts mission concerning the reinstatement of workers dismissed in 1995 who have not yet been reinstated, the payment of compensation to these workers and arrears payments. The Committee requests the Government to inform it without delay of the situation of the negotiations and of the progress made.
   • (c) The Committee expects that the Government will take all the necessary measures to adopt without delay the requested amendments to the Labour Code, as discussed with the direct contacts mission, specifically with regard to sections 41, 42, 214 and 215 of the Code, in order to give full effect to the international Conventions that it has ratified on freedom of association.
   • (d) Noting that the draft legislative amendments will be submitted to the National Council of Labour, Employment and Vocational Training for consideration, the Committee urges the Government to inform it as soon as possible about the establishment and composition of this body.
   • (e) The Committee urges the Government to provide without delay information on the current situation of Mr Hassan Cher Hared, including the results of any inquiry concerning his 2006 dismissal and the follow-up taken.
   • (f) The Committee urges the Government to indicate the measures taken to guarantee the implementation of objective and transparent criteria for the nomination of Workers’ representatives at the International Labour Conference.
   • (g) In general terms, the Committee urges the Government to give priority to promoting and safeguarding freedom of association and act promptly following up on the specific commitments that it made before the direct contacts mission to resolve all the pending issues and therefore facilitate a transparent and sustainable social dialogue in Djibouti. Recalling that some of the events and disputes in this case date back to 1995, the Committee expects that the Government will inform it without delay of any progress made in this regard.
   • (h) The Committee calls the Governing Body’s attention to this serious and urgent case.

Report on the direct contacts mission to Djibouti

1. (21–25 January 2008)
2. Contents
3. Page
4. I. Introduction 186
5. A. Background to the mission 186
6. B. Composition of the mission 187
7. C. Objectives of the mission 187
8. D. Overview of mission activities 187
9. E. Outline of the report 187
10. II. Issues discussed by the mission 188
11. A. The trade union situation in Djibouti 188
12. B. Legislative framework relating to freedom of association 190
13. C. Cases of unionists dismissed in 1995 and not yet reinstated 192
14. D. Cases of workers at the Port of Djibouti dismissed in 2005 196
15. E. Representation of Djibouti workers at the International Labour Conference 198
16. F. Other matters 198
17. (1) Court cases still pending 199
18. (2) Social elections 199
19. (3) ILO technical assistance 200
20. III. Results, conclusions and recommendations of the mission 201
21. A. Exercise of freedom of association 201
22. B. Reinstatement of workers dismissed following the 1995 strike 202
23. C. Court cases still pending 203
24. D. Social dialogue at the Port of Djibouti 203
25. E. Improvements to the legal framework 204
26. F. Representation of Djibouti workers at the International Labour Conference 205
27. G. ILO technical assistance 205
28. Appendices
29. I.?Timetable of meetings of the direct contacts mission (21–25 January 2008) 207
30. II.?List of interlocutors 208
31. I. Introduction
32. A. Background to the mission
33. 1. The direct contacts mission followed up the discussion in the Committee on the Application of Standards at the 96th Session of the International Labour Conference (June 2007) on the application by Djibouti of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which was ratified by Djibouti on 3 August 1978.
34. 2. The Committee on the Application of Standards has examined the application by Djibouti of Convention No. 87 on several occasions: in 1999, 2000, 2001 and 2007. In June 2006, it examined the application of the Minimum Wage-Fixing Machinery Convention, 1928 (No. 26). In that regard, it emphasized the close interrelationship between the Convention’s underlying principle of full consultation and direct participation of the social partners in the determination of the minimum wage and the overriding principles of freedom of association and collective bargaining. In June 2007, when it last examined the application of Convention No. 87, the Committee indicated its expectation that the process undertaken by the Government to review the Labour Code would begin without delay, in full and meaningful consultation with the social partners. Recalling that the rights of workers’ and employers’ organizations could only be exercised in a climate that was free from violence, pressure or threats of any kind against the officers and members of those organizations, the Committee urged the Government to ensure respect for that principle. In addition, the Committee welcomed the fact that the Government had accepted a direct contacts mission to clarify the situation with regard to the issues raised. In a communication of 11 October 2007, the Government confirmed its acceptance of the direct contacts mission, which visited Djibouti in January 2008.
35. 3. In the same context, at its 95th Session (June 2006), the Credentials Committee of the International Labour Conference requested the Government of Djibouti to submit to the 96th Session of the Conference (June 2007), at the same time that it submitted its credentials for the delegation of Djibouti, a detailed report substantiated with relevant documentation on the procedure used to nominate the Workers’ delegates and advisers. In June 2007, as part of the automatic monitoring process relating to the requested report, the Committee indicated that it deeply regretted the lack of cooperation of the government authorities, especially because the nomination of the Workers’ delegation to the Conference was once again the subject of an objection regarding the legitimacy of the Worker representative to the Conference. Reiterating its request for the following session of the Conference, the Credentials Committee indicated its expectation that, with the assistance of the direct contacts mission to which it had just agreed, the Government would nominate the tripartite delegation of Djibouti to future sessions of the Conference in conformity with the requirements of article 3, paragraph 5, of the ILO Constitution.
36. 4. In communications dated 4 August 2005 and 20 May 2006, the Djibouti Union of Workers (UDT) and the General Union of Djibouti Workers (UGTD) filed a complaint against the Government of Djibouti alleging violations of freedom of association (Case No. 2450). The International Confederation of Free Trade Unions (ICFTU) associated itself with this complaint. On the basis of the allegations relating to this case, additional information was received from the complainant organizations on 3 October 2006 and written replies were provided by the Government in January 2006 and March 2007. The Committee on Freedom of Association has twice examined this case (in May–June 2006 and November 2007) and reached interim conclusions at each of its sessions [see 342nd Report, para. 436, and 348th Report, para. 560, adopted by the Governing Body at its 296th and 300th Sessions, respectively]. At its session in May–June 2006, the Committee on Freedom of Association requested the Government to accept a direct contacts mission. At its November 2007 session, the Committee requested the Government to keep it informed of any new developments in connection with the direct contacts mission to the country and the measures taken to give effect to its recommendations.
37. B. Composition of the mission
38. 5. At the 96th Session of the International Labour Conference (June 2007), the Government of Djibouti agreed to receive the direct contacts mission. The mission visited Djibouti from 21 to 25 January 2008. It was led by Mr Yéro Dé, former Minister of Labour of Senegal, who was joined by Ms Karen Curtis, Deputy Director of the International Labour Standards Department, Ms Alice Ouedraogo, Director of the Subregional Office for East Africa in Addis Ababa (Ethiopia), and Mr Chittarath Phouangsavath, legal expert from the International Labour Standards Department.
39. C. Objectives of the mission
40. 6. The mission had a number of objectives. These included gathering as much detailed information as possible on the allegations concerning serious repressive measures and the arrest and harassment of trade union activists and officials and the use of dismissal and non-reinstatement as a punishment for strike action (Cases Nos 2450 and 2471 brought before the Committee on Freedom of Association); initiating talks on the provisions of the Labour Code and national legislation that are the subject of comments by the supervisory bodies, in particular the Committee of Experts on the Application of Conventions and Recommendations (CEACR); recalling the conclusions of the Credentials Committee of the International Labour Conference; and considering possible ways to resolve the difficulties that had arisen with regard to nominating the delegation of Djibouti. The mission was conducted in a spirit of mutual cooperation between the Government and the International Labour Office. From the point of view of the Office, identifying problems as objectively and accurately as possible would help it direct its technical assistance to the Government more effectively, in particular through its Subregional Office for East Africa in Addis Ababa.
41. D. Overview of mission activities
42. 7. During its visit, the mission had the opportunity to meet several members of the Government, including the Prime Minister, the Minister of Employment and National Solidarity and the Minister of Justice. It also had meetings with representatives of the inter-union association Intersyndicale UDT/UGDT, the Employers’ Association of Djibouti (AED) and the UGTD. It also met representatives of the Autonomous Port of Djibouti. Meetings were also held with the Resident Coordinator of the United Nations Development Programme (UNDP) in Djibouti, who was joined by representatives of the resident agencies of the United Nations (UN) and the Head of the European Commission delegation to Djibouti. A complete list of interlocutors met by the mission is attached to this report (Appendix II). The full mission schedule is also attached (Appendix I).
43. E. Outline of the report
44. 8. In this report, the mission introduces first, each of the issues discussed at its meetings and the information it gathered from the participants. Second, it presents for each issue, the results achieved and its conclusions and recommendations.
45. II. Issues discussed by the mission
46. 9. All those interviewed by the mission noted that the climate of economic – and to some extent political – openness was conducive to the success of the mission. The UNDP Resident Coordinator, pointing out that Djibouti was a very young country, observed that there had been some positive developments in recent years; in particular, the Government had started to develop a social awareness. People now talked more readily about social inclusion. The Head of the European Commission delegation also noted that the mission had come at a good time, when the country was moving in the right direction, with a marked improvement in conditions and a clear willingness by the authorities to achieve progress in sharing wealth. The mission notes that, in addition to the meetings it held with the Minister of Employment and National Solidarity and the Minister of Justice, Prisons and Islamic Affairs, it also met the Prime Minister, which demonstrates the commitment at the highest level of government to the success of the mission.
47. 10. In this part of the report, the mission would like to examine, on a topic-by-topic basis, each of the issues discussed. In addition, it will present the information it received during its meetings with regard to the trade union situation in Djibouti; the legislative framework relating to freedom of association; the allegations of serious repressive measures and the arrest and harassment of trade union activists and officials; the representation of Djibouti at the International Labour Conference; and the measures identified by those it met as warranting assistance from the Office.
48. A. The trade union situation in Djibouti
49. 11. The Minister of Employment and National Solidarity said at the outset that the history of the trade union movement in Djibouti was linked to the county’s political history. With regard to freedom of association, he said that certain individuals, who had no connection with the trade union movement, had the title of “secretary-general for life”, even though they did not have a mandate and their organizations had no registered office. The issue of freedom of association had arisen now only because certain individuals had given false information to the International Labour Office in an attempt to fan the flames of discontent in the country, including in cases that had no direct bearing on trade union matters. The Secretary-General of the UDT (Mr Adan Mohamed Abdou) was also the secretary-general of an opposition political party, even though the Labour Code did not allow an individual to hold both types of office at the same time; the claims of the UDT therefore had political overtones and should therefore not be taken into consideration. The Minister nevertheless spoke about maintaining regular contact with the UGTD. The Minister of Justice, Prisons and Islamic Affairs recalled that the history of the trade union movement was linked to the country’s political history. Regarding the UDT and the UGTD, he said that the first internal problem had rapidly emerged in so far as the original union leadership had never agreed to new election even though, by law, their terms of office had to be renewed every three years. Between 1992 and 1999, the leadership of the two trade union confederations had remained unchanged and not stood for re-election. The problem had been compounded by the structural adjustment process that had taken place in the country in 1995. The Government had chosen to cut the wages of state employees rather than laying off 1,500 officials. This had led to strikes and the subsequent dismissal of striking workers. Several meetings had been held, including with international trade union organizations and the ILO, to resolve the issue of the dismissals. He explained that, in 1999, the 22 grassroots unions had called on the Ministry of Employment to ensure the enforcement of their own statutes. It was in this context that the Government had intervened to organize the UDT and UGTD general assemblies. New officers had been elected and had worked closely with the Government. In 2002, when subsequent general assemblies were due to have been held, the former officers had gone on the offensive. Although the UGTD had held its conference without incident, the UDT had been forcefully taken over by its former officers, who had regained control of the confederation. Since then, the Government had not worked with this confederation.
50. 12. The Intersyndicale UDT/UGTD outlined the history of the trade union movement in Djibouti. The UGTD had initially been the country’s only trade union confederation, a situation typical of African countries at that time. The UDT had been created only in 1992 as a result of a split within the UGTD, and the latter had subsequently been dissolved. In 1994, after the UDT had gained national and international recognition, the authorities had decided to re-establish the UGTD. In 1995, however, Djibouti had been obliged to adopt structural adjustment measures and, following a unilateral decision by the Government to cut wages by about 30–40 per cent, the UDT and the UGTD had decided to create the Intersyndicale UDT/UGTD and to challenge that unilateral decision by calling a protest strike. It was following the major strike of 1995 that many trade unionists had been dismissed. Since 1995, many international mediation missions – including a previous ILO direct contacts mission in 1998 – had visited Djibouti. The Government had repeatedly pledged to reinstate workers, but had not taken action. In 1999, although the new Minister of Labour had indicated that he was willing to resolve the issue, he had apparently rejected the reinstatement arrangements agreed upon in 1998 with the ILO direct contacts mission. Representatives of the Intersyndicale UDT/UGTD had nevertheless demonstrated their willingness to negotiate. However, instead of building on that opportunity to negotiate, the Government had organized conferences for the two trade union confederations. Even though the affiliated unions had all refused to participate, the conferences of both confederations had been held at the same venue on a single morning and the confederations’ new officers had been announced in the media. The Intersyndicale UDT/UGTD described that move by the authorities as a real coup d’état.
51. 13. The new officers had found it difficult to gain recognition at the national and international levels. They had been rejected from every forum (for example, the African Regional Meeting of the ILO in Abidjan, the Congress of the Organization for African Trade Union Unity (OATUU) in Johannesburg, and the Congress of the International Confederation of Arab Trade Unions (ICATU)). Furthermore, the Government had decided to impose the new leadership at the national level, hindering the operations of the original confederations (by confiscating post office boxes, interfering with bank accounts and carrying out arrests and acts of intimidation). According to the Intersyndicale UDT/UGTD, even though the “clone” of the UDT had ceased to exist, there was still a “clone” of the UGTD. In 2002, neither of the trade union confederations, nor their affiliated unions (such as the Postal Workers’ Union), had been able to hold conferences to re-elect their officers. The then Minister of Labour had called on both confederations to declare their affiliated organizations, and this had been done in the presence of representatives of all affiliated organizations at the Ministry of the Interior. The authorities then provided assurance of police cooperation in the organization of the general assemblies. A representative of the ICFTU had also participated in the general assemblies. However, following a cabinet reshuffle, the new Minister of Labour contested the first UDT general assembly and had called for a second one to be held. The matter, which appeared to have become personal, was still pending. In addition, acts of intimidation, arrests and detention on grounds of “supplying information to a foreign power” continued to take place. With regard to the UGTD, this organization continued to exist, was recognized by the Government and accompanied the Djiboutian authorities at international meetings. However, that “clone” organization had not succeeded in affiliating to any international trade union organization.
52. 14. The representatives of the UDT said that they were ready to hold a general assembly to re-elect the officers of the trade union organization and thus fulfil the legal obligations, provided that the climate was conducive to such action. The authorities, however, would prevent such a general assembly from being held. The impediment was not tangible but linked to the general climate of intimidation of trade unionists, who would not attend such a general assembly at the present time for fear of reprisals. Some grass-roots unions (such as the Postal Workers’ Union and the Union of Port Workers) faced similar difficulties when organizing their own general assemblies.
53. 15. The Intersyndicale UDT/UGTD reported that it had no relationship with the public authorities although its affiliated unions had the right to operate at the enterprise level. Regarding the trade union situation of women, the UDT indicated that over 30 per cent of its members and eight of its officers were women. However, the pressures on women trade unionists and their families were such that the majority had decided to leave the trade union movement.
54. 16. According to the Intersyndicale UDT/UGTD, the political argument used to justify the lack of social dialogue could not be sustained because the problems had started in 1995, while most union members had not joined political parties until 2002. Some trade unionists had been involved in setting up associations with the aim of improving the country’s situation, not tarnishing its image. Mr Adan Mohamed Abdou (Secretary-General of the UDT) said that every discussion with the Government invariably led to the question of his political functions. He confirmed that he belonged to a political party: the Republican Alliance for Development (ARD). However, he claimed that he was no longer its secretary-general. He said that the ARD had issued an official communication outlining the new leadership of the party and that he was currently its first vice-president. The Intersyndicale UDT/UGTD stated that it had requested in vain since 1999 to meet the President of the Republic in order to lay new foundations for dialogue. It provided the mission with a copy of a communication it had sent to the President on the occasion of the recent establishment of the National Agency for Social Development, as an indication of its good will. The communication had also remained unanswered. According to the Intersyndicale UDT/UGTD, the President alone had the power to overcome the stalemate in social dialogue.
55. 17. According to the AED, the regular meetings with trade union organizations involved dialogue with only one party, namely the government-recognized UGTD. That confederation was said to be particularly active in the banking sector. The AED added that the protests of the UDT were political in nature and were unrelated to union matters and that the dispute of 1995 which had been mentioned by the mission had involved a trade union that currently had no relations with the AED. The AED stated that it was in favour of strengthening the trade unions because it wanted to engage in an authentic dialogue.
56. 18. The UNDP Resident Coordinator noted that the trade unions did not play a significant role in promoting job creation or in safeguarding workers’ rights. The unions seemed to be less active than they had been previously, possibly also because there was no real tradition of protest among civil society in Djibouti.
57. B. Legislative framework relating
58. to freedom of association
59. 19. In June 2007, the Conference Committee on the Application of Standards noted the concerns of the CEACR relating to the conformity of the new Labour Code with the provisions of Convention No. 87, especially with regard to the requirement of prior authorization for the establishment of a union and the restrictions relating to the election of certain persons to union offices. The Conference Committee welcomed the commitment made by the Government to revise the Labour Code in the light of the Convention and indicated its wish for the process to begin rapidly, in full and meaningful consultation with the social partners.
60. 20. The Minister of Employment and National Solidarity said that the new Labour Code, which had been in force since 2006, gave a lot of importance to the social partners and afforded maximum protection to the rights of employees. To facilitate understanding, copies of both the old and the new labour codes and a comparative analysis of the two texts were supplied to the mission. The Minister added that all the social partners and the ILO had been consulted in the process of preparing the new Labour Code. He also mentioned his department’s initiative with regard to the adoption of a decree establishing a National Council of Labour, Employment and Vocational Training (CNTEFP). Reaffirming what had been said by the representative of Djibouti to the Conference, he expressed the hope that the mission would help the Government identify the inconsistencies between national legislation and the Conventions, so that the situation could be rectified. He said that the solutions would be discussed within the CNTEFP. Each group (Government, Employers and Workers) would have six representatives on the Council, which would hold at least two plenary meetings per year. The Council’s mandate would include addressing all the inconsistencies with the ILO Conventions. Meanwhile, the UDT said that it did not recognize the new Labour Code in so far as it considered that it had not been consulted during the process of its preparation. In addition, the Code – which represented a setback to the achievements of the former Labour Code – also posed a problem for employers, who were unable to implement it at the current time, particularly with regard to the introduction of the 48-hour working week. This was confirmed by the AED, which expressed concern about the implementation of the Labour Code at the end of the three-year transition period provided for in the law. Although that period was due to expire in a year, no collective agreement had yet been signed. The AED had taken the initiative to prepare and propose some agreements to the unions. The priority sectors for such agreements were public works, commercial establishments and banks.
61. 21. The mission held a technical meeting with representatives of the Ministry of Employment and National Solidarity focusing on the issues raised by the CEACR with regard to the Labour Code and national regulations. To facilitate the discussion, the mission provided a copy of the latest comments by the CEACR on the application by Djibouti of Convention No. 87. The mission also considered the implementation of the Minimum Wage-Fixing Machinery Convention, 1928 (No. 26), which had been discussed by the Conference Committee on the Application of Standards in June 2006. The following issues were discussed:
62. – Sections 41 and 42 of the Labour Code.?The CEACR requested the Government to amend these provisions so as to provide that the possibility of suspending the employment contract during a period of trade union office where such office is incompatible with the demands of work, is a matter for negotiation between the parties concerned, who must establish the relevant modalities. In any event, such suspension should not be automatic.
63. – Section 214 of the Labour Code.?The CEACR considered that section 214, in deeming any person with any prior conviction in a court of law to be unsuitable for trade union office, is formulated too broadly and would cover situations in which the nature of the conviction is not inherently such as to rule out the holding of trade union office. The Committee therefore requested the Government to amend section 214 of the Labour Code, in consultation with the social partners, so as to ensure that only court sentences for offences which by their nature were prejudicial to the integrity of the individual are deemed to be incompatible with the holding of trade union office.
64. – Section 215 of the Labour Code.?The CEACR noted that section 215 of the Labour Code, under which the decision of the Minister of Labour requires not only the deposition by the founders of the trade union of the relevant documents, but also a detailed report by the labour inspector, would appear to grant the administration more or less discretionary power in deciding whether or not an organization meets the registration criteria. This situation could amount in practice to denying the right of workers and employers to establish organizations “without previous authorization”, in contravention of Article 2 of Convention No. 87. The CEACR therefore requested the Government, in consultation with the representative organizations of employers and workers, to amend section 215 of the Labour Code so as to guarantee the right to establish workers’ and employers’ organizations without previous authorization, to remove the provisions which give de facto discriminatory powers to the administration, and to ensure that the registration procedure is merely a formality.
65. – Section 5 of the Associations Act.?The Committee referred to its previous comments and called for this section to be repealed, as it requires organizations to obtain authorization prior to their establishment as trade unions, in violation of Article 2 of Convention No. 87. During the discussion, the Government indicated that section 210 of the Labour Code addressed the concern of the CEACR with regard to this section.
66. – Section 23 of Decree No. 83-099/PR/FP.?The CEACR noted that the provision conferred upon the President of the Republic broad powers to requisition public servants who were indispensable to the life of the nation and the proper operation of essential public services. It requested the Government to restrict the power of requisition to public servants who exercised authority in the name of the State or in essential services in the strict sense of the term.
67. – Need to provide information on the legislative provisions relating to the application of the Minimum Wage-Fixing Machinery Convention, 1928 (No. 26).?In its most recent comments (November–December 2007), the CEACR asked the Government to take the necessary steps to ensure that minimum wage rates determined by means of collective agreements were legally binding and could not be lowered, and that their non-observance would be subject to sanctions. The Committee also asked the Government to supply detailed information concerning the sectors or branches of economic activity and the different categories of workers covered by collective agreements, as well as the approximate number of workers whose remuneration was not regulated by collective agreement.
68. 22. The discussions and clarifications enabled the representatives of the Ministry to see ways and means to correct the inconsistencies identified by the CEACR. The mission requested that, at a subsequent meeting to be held prior to its departure, the Ministry make specific proposals regarding legislative amendments.
69. C. Cases of unionists dismissed in 1995
70. and not yet reinstated
71. 23. The mission recalls that the dismissal of workers and trade union officials in 1995 following strike action has been the subject of several complaints to the Committee on Freedom of Association (Cases Nos 1851 and 2450) and that the Committee has always been in favour of their reinstatement [see Case No. 1851, 304th Report of the Committee on Freedom of Association, para. 286, 307th Report, para. 272, and 324th Report, para. 536; see also Case No. 2450, 342nd Report of the Committee on Freedom of Association, para. 436, and 348th Report, para. 560]. These issues have also been discussed in the Conference Committee on the Application of Standards [see Report of the Committee on the Application of Standards, 89th Session of the International Labour Conference, Geneva, 2001, Part 2, pp. 32–35]. In addition, the Office has conducted various missions in the country since 1996 in an attempt to settle this dispute.
72. 24. In considering Case No. 1851, the Committee on Freedom of Association expressed in its conclusions regret that the Government had not provided specific and detailed information with regard to the allegations that serious repressive measures had been taken against trade union activists and officials, and called for the release of the trade union officials who had been arrested for strike action and measures to lift immediately the severe penalties imposed on the striking union members in 1995, 1996 and 1997 and to reinstate in their posts the trade union officials and trade unionists dismissed or suspended for having participated in a strike. The Committee then requested the Government to accept the visit of a direct contacts mission to the country [see 307th Report of the Committee on Freedom of Association, Vol. LXXX, 1997, Series B, No. 2, para. 272]. Once the Government gave its consent, in August 1997, for such a mission to be conducted in early 1998, arrangements were made accordingly and the mission was carried out in January 1998. In its conclusions, the direct contacts mission had noted the severity of the problems, the solution of which lay in the re-establishment of a normal trade union climate in accordance with the principles guaranteed in ILO Convention No. 87. It had invited the Government as a whole, and the Minister of Labour in particular, to take, in agreement with the trade union organizations, the necessary action to respond to the following requests: (1) it asked the Minister of Labour to complete the timetable for meetings, the beginning of which had been decided upon at the end of the meeting held at the Ministry of Labour with the trade union organizations, in order jointly to examine the situation of the UGTD and UDT officials dismissed following the strikes and to take the necessary measures and to use all the legal means available to end or cancel the dismissals and to reinstate the officials as quickly as possible in their posts and duties, in conditions (timetable and conditions of return, etc.) negotiated with them. … (4) As regards those in dialogue with the trade union organizations, the mission requested that everything be done to ensure that normal trade union life and activities could continue or resume at all levels and in all sectors of industrial activity, in respect of the principles of freedom of association and trade union pluralism. The same recommendation was made to the trade union organizations [see Case No. 1851, 309th Report of the Committee on Freedom of Association, paras 224–251 and annex].
73. 25. In considering Case No. 2450, the Committee on Freedom of Association noted in its conclusions that, under the terms of the agreement concluded on 8 July 2002 between the Department of Labour and Relations with the Social Partners and the dismissed trade union officials, the Government had pledged to reinstate the dismissed trade unionists. It noted the information provided by the Government on the situation of Adan Mohamed Abdou and Kamil Diraneh Hared, who had reportedly refused offers of reinstatement. It furthermore requested the Government to keep it informed of the situation of the trade unionists who were due to be reinstated under the terms of the agreement of 8 July 2002, namely: Abdoulfatah Hassan Ibrahim, Hachim Adawe Ladieh, Houssein Dirieh Gouled, Moussa Wais Ibrahim, Abdillahi Aden Ali, Habib Ahmed Doualeh and Bouha Daoud Ahmed. The Committee requested the Government to ensure that all those workers who so wished were reinstated without loss of wages or benefits, and that those not wishing to be reinstated received adequate compensation [see Case No. 2450, 348th Report of the Committee on Freedom of Association, paras 533–560].
74. 26. The mission provided those it met with background information on the dispute and recalled that the supervisory bodies had consistently requested the reinstatement of dismissed workers. It also recalled that the Government had repeatedly pledged to reinstate all dismissed workers, including through reinstatement agreements signed with trade union organizations concerned, although no follow-up action had been taken. At its first meeting with the Minister of Employment and National Solidarity, the mission noted that the chronology of successive cases examined by the ILO supervisory bodies revealed that relations between the Government and some social partners were extremely tense. The mission indicated that its main objective was to defuse the situation and to help find a solution that would be acceptable to all.
75. 27. The Minister of Employment and National Solidarity said that his department was prepared to answer any questions concerning the reinstatement or status of the persons concerned. However, he said that he was astonished by the information on the Internet relating to cases of harassment or murder of trade unionists in Djibouti, and rejected such claims. The Minister of Justice, Prisons and Islamic Affairs said that the issue of the 1995 dismissals had been settled by the Government through a mass reinstatement process, in all but a few isolated cases. He observed that, generally speaking, the reinstatement of workers dismissed in 1995 had been the result of political good will and that the Ministry could intervene to ensure that the reinstatements had taken place, which was the case for the majority of the dismissed workers. In this regard, the Minister mentioned the case of the former president of the UDT (Ahmed Djama Egueh), whose reinstatement in his job at the airport had not been possible, but who was now employed in the Ministry of Finance. The Minister added that some unionists had left the country. He also said that, if cases were still pending, the Government was ready to rectify the situation. He noted that the isolated cases of dismissed workers who had not yet been reinstated included the case of the Secretary-General of the UDT (Adan Mohamed Abdou), who was both a trade union official and the leader of an opposition political party. The Prime Minister recalled the economic challenges and the ordeals that the country had faced recently. In that regard, he said that Djibouti did not have a culture of rejection, but rather had demonstrated its ability to forgive. With regard to the 1995 dismissals, the Prime Minister recalled that the vast majority of the dismissed workers had been reinstated. The few who had not yet been reinstated constituted one of those intractable groups that were often found in such circumstances.
76. 28. Representatives of the Intersyndicale UDT/UGTD indicated that the reinstatement of the unionists dismissed in 1995 had become a political issue for the authorities. The unionists concerned were being treated as opponents. Regarding the agreements that had been reached, the Intersyndicale UDT/UGTD specified that, under the agreement of 8 July 2002, which had been signed through the mediation of an ILO mission, workers who wished to be reinstated had to make an individual request to that effect. Those who did not wish to be reinstated had to be compensated. Some had therefore filed a request for reinstatement. However, the authorities had always rejected the principle of compensation and had furthermore imposed a condition for reinstatement, namely the relinquishment of trade union membership. The new condition imposed by the authorities had been rejected by all concerned. Thus, no progress had been made and the commitments made by the authorities before the ILO and the social partners had not been honoured. The mission reviewed the list of persons who had allegedly not yet been reinstated after their dismissal in 1995. This list, which was based on information provided by the Intersyndicale UDT/UGTD, in particular in a communication dated 10 January 2008 relating to Case No. 2450 before the Committee on Freedom of Association, read as follows:
77. – Abdoufathah Hassam Ibrahim: Former Secretary-General of the Union of Primary School Teachers.
78. – Hachim Addawe Ladieh: Deceased in 2003.
79. – Houssien Dirieh Gouled: Member of the Railway Workers’ Union, currently living in Djibouti.
80. – Moussa Waiss Ibrahim: Member of the Railway Workers’ Union, currently living in Djibouti.
81. – Abdillahi Aden Ali: Member of the UGTD, he was dismissed from the Social Protection Body (OPS). He is currently living in Djibouti.
82. – Habib Ahmed Doualeh: Member of the UGTD and the Electricity Workers’ Union, currently living in Djibouti.
83. – Bouha Daoud Ahmed: Member of the Sheraton Union, currently living in Djibouti.
84. – Adan Mohamed Abdou: Claims that for 12 years he has been “verbally” forbidden from working in either the public or the private sectors.
85. – Kamil Diraneh Hared: Secretary-General of the UGTD, present.
86. – Souleiman Mohamed Ahmed: Secretary-General of the Secondary Teachers’ Union (SYNESED) and Deputy Secretary-General of the UDT, he worked in a private school (Champion School) but had to leave his job because of pressure on the school administration.
87. – Mohamed Doubad Waiss: Member of the Postal Workers’ Union, currently living in exile in France.
88. – Mariam Hassan Ali: Secretary-General of SYNESED, she has left the country.
89. – Abdourachid: Teacher who is a member of the UDT; no information is available on his current situation.
90. 29. The Secretary-General of the UGTD, the organization recognized by the authorities, regretted the current deadlock situation, which he described as being a consequence of the 1995 dispute. He recalled that his organization had always campaigned for the reinstatement of the workers dismissed in 1995, with payment of due wages and benefits.
91. 30. Following its meetings with each of the parties concerned, the mission proposed, as a means of reaching a possible settlement, that a round table discussion be held with the unions, in the presence of the mission, with a view to reaching a common understanding between all partners as to how the dispute might be settled. According to the mission, this type of meeting, in the presence of a third party, might facilitate the task of the parties concerned and provide them with the opportunity to exchange views and find compromise solutions. The Minister of Employment and National Solidarity expressed his reservations about such a meeting. The Intersyndicale UDT/UGTD reiterated its willingness to sit down with the Government to discuss once again the reinstatement arrangements. The government-recognized UGTD indicated that it was strongly in favour of holding such a meeting so that all parties could openly discuss their grievances and state their positions, in an effort to overcome the situation that had paralysed the trade union movement in Djibouti for 12 years.
92. 31. At the wrap-up meeting with the Minister of Employment and National Solidarity, the mission noted, on the basis of the discussions that had been held with the various parties, that it should be possible to reach a compromise on the issue of reinstatements, including the question of arrears payments. It hoped that both sides would adopt an open-minded approach when discussing this matter. The mission reiterated that it would like a meeting on the matter to be held between the Government and unionists, at which it would be present. During its meeting with the Prime Minister, the mission referred to the generosity displayed by the Government in resolving previous, more serious, disputes, and expressed its confidence that, by building on that momentum, the same generosity would be shown towards the payment of compensation to workers who had been dismissed in 1995 and who had not yet been reinstated, and that a meeting would be held to settle this issue once and for all. The head of the mission indicated that the major changes expected in Djibouti should be brought about in the context of tripartite consultation and it was therefore necessary to resolve all the issues that had been pending since 1995. In response, the Prime Minister stated that he was not opposed to the principle of paying compensation to the workers in question if they agreed to be reinstated in their jobs. The group of individuals in question would meet with experts from the Ministry of Employment and National Solidarity to settle this issue once and for all. He instructed the Secretary-General of the Ministry of Employment and National Solidarity to carry out the individual negotiations in this regard.
93. D. Cases of workers at the Port of Djibouti dismissed in 2005
94. 32. The mission met the management of the Autonomous Port of Djibouti and representatives of the port workforce in order to discuss the allegations of attempts to obstruct the free exercise of trade union activities. The mission recalls that this question has been examined by the Committee on Freedom of Association (Case No. 2471). According to the allegations made by the complainant organization, the Union of Port Workers (UTP), on 24 September 2005, some 11 trade union leaders and activists were dismissed; following a solidarity strike the following day, some 170 workers were taken to a detention centre and 25 others were dismissed; 12 workers were held in custody for inciting unrest and unlawful assembly, but were released by order of a court on 2 October 2005; the correctional chamber of the Djibouti Court of Appeal arbitrarily sentenced the workers in question to terms of imprisonment of up to two months (suspended); three of them were found guilty of demonstrating illegally and obstructing freedom to work, and others were convicted of making threats and of assembly in a public place likely to disturb public order. The complainant organization also complains of “final warnings before dismissal” sent to 120 workers who had organized a collection in support of dismissed workers, and in general of harassment of workers by the police and courts. In its conclusions, the Committee on Freedom of Association expressed regret that, despite the time that had elapsed since the presentation of the complaint, the Government had not replied to the allegations of the complainant organization, despite the fact that it had been invited on several occasions to make comments and observations on the case, including by means of an urgent appeal. In its recommendations, the Committee requested the Government to institute an independent inquiry rapidly into the allegations of the wrongful dismissal of the 36 trade union leaders and activists at the Port of Djibouti. It requested the Government, if those allegations were shown to be well-founded, to take the necessary measures immediately to bring an end to those acts of discrimination and to punish those responsible and ensure the reinstatement of the workers without loss of pay. Where reinstatement was not possible, the Committee requested the Government to ensure that the workers concerned were given adequate compensation which would be a sufficient deterrent against anti-trade union dismissals [see Case No. 2471, 344th Report of the Committee on Freedom of Association, para. 896].
95. 33. The mission visited the Autonomous Port of Djibouti, where it had a meeting with the port management. The Human Resources Director of the port stated that before the advent of the operator DP World the port had been facing financial difficulties and had been obliged to seek help from a partner, with due regard to the social legislation in force. In an effort to enable the port to recover, the trade unions had been asked to “play the game”. A plan of action had been established to solve the wages problem. The trade union enjoyed the use of premises paid for by the port, and membership dues had been deducted from wages at source (even in cases of workers who were not union members, despite warnings from the Ministry of Employment). Two workers who had been swindling other workers and causing social conflicts had been removed. They had then used the union as a refuge. The port management is seeking to improve dialogue with the workers and has set up a medical centre, a system for evacuating injured workers at the port’s expense, a training centre, death benefits, negotiated loans for workers, compensation in the event of floods, a very competitive minimum wage, and so on. However, the management has stated that it is dealing with individuals who are incapable of engaging in dialogue. The situation, it is claimed, deteriorated during the events of 2005, which paralysed the port for one-and-a-half months. The management indicated that the port’s reputation was at stake, and shipowners abandoning the port were unlikely to come back. Despite the management’s willingness to negotiate, it came up against people who preferred to give priority to individual interests. Following the strike in 2005, some 11 workers had been dismissed for blocking the port and attempting to send messages to ships to dissuade them from entering the Port of Djibouti. They had been arrested for jeopardizing the national interest and placed in custody. In the view of the port’s management, the strike was an illegal wildcat strike; however, at the request of the Ministry of Employment, the workers received compensation from the port. The port management nevertheless considered it important to prosecute those union members who had gone to bus stops to intimidate other workers wanting to get to work. A complaint was made against three union workers but was dismissed by the lower court and eventually withdrawn. The port authority decided to dismiss those who had prevented non-striking workers from working. The representatives of the port management stated that the matter of the port trade unionists was settled, as far as they were concerned, and that they had “paid dearly for social peace”.
96. 34. The Secretary-General of the Ministry of Employment explained that his Ministry had been instructed to mediate in that dispute, and had set out a number of specific claims. Negotiations had been conducted by the Prime Minster in person, but it had been clear that the invariable aim of the trade union had been to provoke strike action. On the day before the strike, certain individuals had sent messages to ships, embassies and international organizations. In spite of everything, the President had asked the Prime Minister to find a way of resolving the dispute. The individuals in question had received individual compensation, which in some cases had been generous. Copies of the agreements between the port management and dismissed workers were given to the mission.
97. 35. The mission met with representatives of the UTP at a meeting with the Intersyndicale UDT/UGTD. The mission spoke to Mr Ahmed Ali Aras, Secretary-General of the UTP, and Mr Mohamed Ali Ahmed, the UTP’s External Relations Secretary. They stated that, of the 36 portworkers who had been dismissed, two had since died and two women had been rapidly reinstated. They added that, 14 months after their dismissal, the other workers had been “obliged” to sign an agreement with the port management to obtain a lump-sum payment. In the terms under which the management had presented the offer, those who refused to sign would get nothing. All the workers had therefore signed, as most were in severe financial difficulties after several months without any income. Some had even been evicted from their homes. They had therefore signed an agreement with the port management in order to obtain the lump sum, but had also resolved to fight on through the courts and in other ways. However, those wishing to do that had come under pressure from the authorities and from their families. Mr Mohamed Ali Ahmed is the only one to have persisted with legal action, and his case is reported to be at the appeals stage. After the mission had read the agreements signed by the workers and the port management, under the terms of which the workers waived any claim against the Port of Djibouti, the UTP and the Intersyndicale UDT/UGTD recalled that the workers had been obliged to sign in order to get the compensation, and contested the validity of the agreements. The UTP has provided a copy of the communication dated 26 December 2006 contesting the validity in law of the agreements.
98. 36. The mission asked those it met whether there was currently a trade union operating at the Port of Djibouti. The representatives of the port management stated that they knew of one union with the same name but had no relations with it. They also said that the absence of a trade union would not necessarily be regarded as a loss by the workforce, which had enjoyed a number of benefits agreed by the management. The representatives of the UTP stated that, currently, there was no active union at the Port of Djibouti. Workers who were union members or wished to join did not say so openly for fear of being dismissed. There was therefore no union presence at the port. Trade union activities were largely prevented at the port because the only trade union was not even allowed to enter the port precincts. In addition, the elections for workforce delegates that had been planned the previous year had not taken place, although the term of office of the previous officials had expired at the end of 2007. According to the UTP, the dismissed workers were in a difficult situation because they could not find work. Employers would not hire workers who had been dismissed or were union members because they feared “trouble”.
99. 37. The mission asked whether the union members could enter the port to discuss trade union issues with the workers. The representatives of the port management said that certain rules governed entry to the port: individuals wishing to enter the port had to have a job there, or have some specific reason for entering the port and notify the port security service, which would then decide whether the person could be admitted. The management explained that it would not object to a trade union entering the port on trade union business. The mission expressed regret at the absence of a trade union at the port, which meant that management had no social partner for a number of years.
100. E. Representation of Djibouti workers at
101. the International Labour Conference
102. 38. The mission considered the question of representation of Djibouti workers at the International Labour Conference. It recalled that this question had again been the subject of an objection and a discussion in the Credentials Committee in June 2007. That Committee in its most recent conclusions noted that the Government had confined itself to sending copies of the communications exchanged between the Director of Labour, on the one hand, and the AED and the UGTD, on the other, in connection with the nomination of delegates to the Conference. The Credentials Committee deeply regretted the absence of cooperation from the government authorities, and requested the Government to submit a detailed report supported by relevant documentation concerning the procedure used to nominate Workers’ delegates and advisers, indicating the organizations that had been consulted and the criteria applied, the date and place of consultations, and the names of persons nominated by those organizations following the consultations.
103. 39. The mission proposed holding discussions with the parties concerned and suggested how far the procedures for nominating the Workers’ delegation of Djibouti could be acceptable to everyone. In the view of the Intersyndicale UDT/UGTD, there was no question of doubt concerning the role of the UDT as a representative body and thus of its right to represent Djibouti workers at the International Labour Conference. The Government, however, chose to support the UGTD recognized by it, but regarded by the Intersyndicale UDT/UGTD as a government union. According to the Intersyndicale UDT/UGTD, one possible compromise might be to allow both the UDT and the government-recognized UGTD to participate, but given that the UDT was the most representative of the union organizations, its representative should have the status of regular delegate. The Minister of Employment and National Solidarity said that he was not in favour of allowing the UDT to attend the International Labour Conference because its representativeness had yet to be established. The mission had, as a compromise, asked the authorities to agree to include the UDT in the Djibouti delegation to the next session of the Conference, pending elections which would establish which of the workers’ organizations was the most representative. The Minister said that the mission’s request would be passed on to the Government.
104. F. Other matters
105. 40. During its meetings, the mission was able to touch on a number of related issues of importance which will need to be followed up.
106. (1) Court cases still pending
107. 41. At a meeting with the Minister of Justice, Prisons and Islamic Affairs, the mission drew attention to the fact that a number of allegations concerned arrests, and sought clarification on the situation of the persons detained. These included the case of Mr Mohamed Ali Ahmed of the UTP, who informed the mission that his passport had been confiscated, and the cases of Mr Djibril Ismael Igueh, Mr Adan Mohamed Abdou and Mr Hassan Cher Hared, who had been charged with “supplying information to a foreign power”, and the judicial proceedings that had been initiated against them. As regards the confiscation of Mr Mohamed Ali Ahmed’s passport, the Minister requested that the necessary inquiries be made. With regard to the charges of “supplying information to a foreign power” brought against Mr Djibril Ismael Igueh, Mr Adan Mohamed Abdou and Mr Hassan Cher Hared, an offence punishable under sections 137 and 138 of the Penal Code, the Minister stated that the persons concerned had made statements that had “gone beyond the boundaries of trade union activity”, had “indulged in political propaganda” and had “insulted the Head of State”. However, after some inquiries had been made, the Minister said that the charges had been changed by the public prosecution authority to “publicly insulting the authorities”, an offence under section 432 of the Penal Code. He also indicated that the situation, for which time was needed, had been resolved but the case was still under judicial investigation and no court decision had been handed down. The Government had undertaken to check the facts and inform the Office accordingly. The mission noted that as long as the case remained under investigation, especially if it were for a long period, it was effectively a “sword of Damocles” hanging over the heads of the trade union members concerned and could restrict them in the exercise of their legitimate activities. Consequently the mission recommended that the authorities take the necessary steps to ensure that a definitive ruling was handed down without delay.
108. (2) Social elections
109. 42. The mission asked whether organizing social elections might not be the most objective and transparent way of determining which organizations in Djibouti were the most representative. The Intersyndicale UDT/UGTD considered that representativeness in Djibouti was determined through the election of union delegates in enterprises: the number of delegates was a measure of representativeness. It also argued, however, that the authorities and enterprises that did not accept that it was the most representative organization, prevented elections of trade union delegates. The UDT claimed that it had 22 affiliated unions, of a total of 27 in Djibouti, but also complained of threats made by the authorities against those affiliated organizations. That situation, it was claimed, had prompted certain organizations to suspend their membership. Similarly, some unions were said to have been unable to re-elect their officers, in some cases since 2002. As was the case with the Dock Workers’ Union, which had recently held its general meeting, the relevant documents were filed with the authorities, as required by the Labour Code with regard to the renewal of trade union mandates, but no action had been taken, which meant that some unions had not elected new officers. That was the situation of, for example, the Refuse Collectors’ Union, the Drivers’ Union, and the Dock Workers’ Union (whose registration on 7 December 2007 has elicited no response). The Intersyndicale UDT/UGTD has stated its willingness to take part in social elections to determine representativeness on the condition that the ILO would act as observer and pre-empt any possibility of pressure from the authorities on the trade unionists, in particular the candidates. The SecretaryGeneral of the Ministry of Employment stated that the National Council of Labour, Employment and Vocational Training would undoubtedly be the appropriate body for settling most trade union disputes, but also noted that, if the UDT were absent from the process, there would be no resolution. He wondered whether the timing was right for social elections as a way of determining rapidly which workers’ organizations should be represented on the Council and said that, in order to hold such elections, the grass-roots unions needed to prepare.
110. (3) ILO technical assistance
111. 43. The fact that the Director of the ILO’s Addis Ababa Subregional Office, which covers Djibouti, was a member of the mission demonstrated that the Office is willing and able to provide technical assistance in the implementation of the different recommendations which the mission might make and in any other activities pertaining to the ILO’s remit. In that respect, the mission held a working meeting with management staff of the National Department of Labour on possible ways of developing projects aimed at strengthening labour administration. During the discussions, the Director of Labour spoke in favour of promoting the ILO’s fundamental Conventions, and reiterated his Government’s interest in the Programme to support the implementation of the ILO Declaration on Fundamental Principles and Rights at Work (PAMODEC). He recalled that he had received a letter from the Director-General of the ILO asking for discussions on this with the mission. From the perspective of developing social dialogue, he also wanted to have the support of the Programme for the promotion of social dialogue in French-speaking countries of Africa (PRODIAF). The mission received copies of documents on the different points raised during the discussions. The Director of Labour expressed regret at the absence of the ILO in recent years and said he hoped to see it play a more prominent role. The Director of the ILO Subregional Office in Addis Ababa noted the overall convergence of the country’s needs and the assistance projects in Djibouti actually planned by her Office. She indicated her intention to carry out a multidisciplinary mission to Djibouti in the coming weeks to discuss in greater depth the matter of assistance from the Office. She recalled that assistance from the Office would be channelled through a Decent Work Country Programme which would be developed in consultation with the Government and the social partners.
112. 44. The government-recognized UGTD expressed incomprehension at what in its view was the exclusive relationship between the ILO and the UDT, despite the fact that the UGTD was a representative and active organization at the national level. A member of the UGTD severely criticized the ILO for taking the side of individuals over the years to the detriment of workers and unions like the UGTD, who wanted their competencies strengthened in order to be able to defend the interests of Djibouti workers. The mission took note of the wish for training expressed by the UGTD and said it would inform the competent department at the ILO (ACTRAV). The Director of the ILO Subregional Office in Addis Ababa said that she was willing to support all the ILO’s constituents, and future activities and training in Djibouti would involve the UGTD. She stated that the ACTRAV specialist would visit Djibouti to discuss the UGTD’s requirements in greater detail. The head of the mission recalled that participation in the common activities of workers would require an effort from everyone to sit down at the same table; that effort was essential if progress was to be made.
113. 45. During discussions with the resident UN agencies, the Director of the ILO Subregional Office in Addis Ababa set out the mission’s objectives and the prospects of collaboration between the Office and the resident agencies. The head of the mission noted that the major changes and initiatives that had been reported would require the participation of the social partners. He noted the need for a stronger civil society, and the concerns about freedom of expression, which had a direct bearing on freedom of association. The mission noted that certain aspects of technical assistance referred to by the Resident Coordinator pertained to the mandate of the ILO. The mission also noted that, during its discussion with the Head of the European Commission delegation, the latter had indicated the possibility of European Union support in all activities to strengthen civil society, including with regard to trade unions.
114. III. Results, conclusions and recommendations of the mission
115. 46. Before presenting its conclusions and recommendations, the mission wishes to thank the Djibouti authorities for the welcome, organization and cooperation it enjoyed throughout its visit to Djibouti; this greatly facilitated its work. It would especially like to thank His Excellency Mohamed-Siad Douala, Ambassador and Permanent Representative of Djibouti in Geneva, and Mr Djama Mahamoud Ali, Adviser to the Permanent Representative, for their help in the preparatory work for the mission, and Mr Ali Yacoub Mahamoud, Secretary-General of the Ministry of Employment and National Solidarity, and Mr Guedi Absieh Houssein, National Director of Labour and Relations with the Social Partners, for their unfailing support.
116. 47. The direct contacts mission enjoyed the full cooperation of all those concerned, including the resident development partners, all of whom provided as much detailed information as possible and shared their comments and views. The mission is most grateful to them. The mission would also like to thank the Government for the spirit of cooperation it showed by enabling it to meet the Minister of Employment and National Solidarity on two occasions and, at its request, the Minister of Justice and the Prime Minister.
117. A. Exercise of freedom of association
118. 48. The Government appeared to be somewhat irritated by the fact that it is required on a regular basis to provide answers to international forums with regard to violations of rights and principles of freedom of association, when it considers that there is no case to answer.
119. 49. An analysis and comparison of the accounts provided by the Government and by representatives of the Intersyndicale UDT/UGTD, the UGTD and the AED, however, makes it clear that the Government and the AED currently have no relations with the Intersyndicale UDT/UGTD.
120. 50. To explain its position, the Government presents different arguments at different times. Initially, the Government appeared to be critical of the representatives of the UDT and the UGTD for having failed to convene general assemblies to re-elect their officers in the belief that they are “secretary-generals for life”. In this regard, and on the basis of various statements, the mission notes that:
121. – Between 1992 and 1999, neither the UDT nor the UGTD held a general assembly.
122. – In 1999, the Government, in accordance with its mandate and at the request of 22 grass-roots unions, convened general assemblies for both the UDT and the UGTD. The circumstances in which these conferences were held and in which the new officers were appointed are viewed very differently by the Government and by the leaders of the Intersyndicale UDT/UGTD.
123. – The Government worked with the officers who were appointed at the two 1999 conferences, considering them to be lawful and legitimate, despite the protests of the former union leaders and the refusal of various international organizations and meetings to recognize the representativeness of the new officers.
124. – In 2002, at the UDT conference, which was held with the agreement of the Government and in the presence of a representative of the ICFTU, the former leaders regained control of the trade union confederation. The Government has since refused to treat the UDT as a social partner with which it should engage in dialogue.
125. 51. The reasoning of the Government appears to have changed from 2002 onwards. It maintains, without providing clear evidence, that the former leaders staged a forceful takeover. The mission notes, however, that no complaint has been brought to its attention by the main parties concerned, namely the members of the trade union confederation. It notes on the contrary, that the officers elected in 1999 have stayed on and continue to work with the UDT leadership. In addition, the Government highlights the political affiliation of the UDT leaders, notably that of the Secretary-General, Mr Adan Mohamed Abdou, who confirms that he belongs to a political party, the Republican Alliance for Development (ARD), that he used to be its secretary-general, and that he resigned from this position and is currently the first vice-president. In support of its claims, the Government refers to the provisions of the new Labour Code of 2006, which prohibits individuals from holding union office and party political office at the same time. Under section 214 of the Labour Code, “individuals responsible for the management or administration of any trade union are prohibited … from occupying positions in which they are responsible for the management or administration of a political party”. The mission is of the view that the question of the compatibility of this provision, as drafted, with the international labour Conventions ratified by Djibouti should be left to the ILO’s supervisory bodies, in particular the Committee of Experts on the Application of Conventions and Recommendations.
126. 52. The mission notes that the protest strike of 1995, which was considered to be lawful and legitimate, and the subsequent dismissals and sanctions mark a turning point in the deterioration of relations between the Government and the trade union confederations, the UDT and its secretary-general, but also the Intersyndicale UDT/UGTD. According to the mission, many factors served to widen the gap between the Government and the Intersyndicale UDT/UGTD from that point onwards: the organization by the Government of the UDT and UGTD general assemblies in 1999, bypassing the union leaders; the refusal of the authorities to work, to date, with the former leaders of the UDT, who resumed control of the confederation in 2002 at a general assembly that was, according to the trade unionists, accepted by the authorities and which took place in the presence of a representative of the ICFTU; the virtual disappearance of the Union of Port Workers since the 2005 strike, which was followed by dismissals and compensation measures; and the misunderstandings, suspicion and bitterness that can arise when people have or express different political opinions in a fledgling democracy where the spirit of open debate and tolerance have yet to take root.
127. 53. Nevertheless, the mission firmly believes, on the basis of the statements made by almost all the parties concerned, that there is a way to resolve the issues that have been pending since 1995.
128. B. Reinstatement of workers dismissed
129. following the 1995 strike
130. 54. Regarding the reinstatement of workers dismissed following the 1995 strike, two facts remain constant: first, that the reinstatement of all the dismissed workers in their original posts (or the offer of equivalent posts if reinstatement is not possible) is not being questioned; and second, although most of the workers have now been reinstated, some workers have not yet been reinstated.
131. 55. The mission notes that the list of dismissed workers who have yet to be reinstated is subject to debate. The Government did not comment immediately on the list prepared by the Intersyndicale UDT/UGTD, a copy of which it received from the mission. It considers that, generally speaking, the only cases that remain are “isolated” and involve “intractable groups”, in other words “people who do not wish to be reinstated or who are no longer in the country”. The Government nevertheless agreed with the mission to carry out the necessary checks into the situation of several workers, on the basis of the list provided by the mission, and that it would inform the Office accordingly.
132. 56. In addition, the mission notes that the question of compensation and arrears of pay for workers who have not yet been reinstated remains unresolved. While it was in Djibouti, the mission attempted to reconcile the parties and to find a compromise that would be acceptable to all. The mission notes the Government's commitment to reinstate the dismissed workers in their original posts or, if such reinstatement is not possible, in another service. It also notes that the Government is prepared to pay the social security contributions for the retirement of these individuals. The mission notes that the Government, through its Prime Minister, is not opposed in principle to the payment of compensation, on condition that the workers agree to be reinstated. In this regard, the mission appreciates the good will of the Prime Minister and the clear mandate he has given to the Secretary-General of the Ministry of Employment and National Solidarity to conduct and conclude negotiations on the issue of reinstatement, compensation and the payment of social security contributions. The mission held several meetings with the leaders of the Intersyndicale UDT/UGTD who, taking into account the time that has elapsed
133. (1995–2008), seemed willing to reach an acceptable compromise with regard to back pay and compensation arrangements. The mission expects that, on the basis of the commitments made by all those concerned, it will be possible to resolve this issue and that tangible and rapid progress will be made over the course of the year, ideally before the 97th Session of the International Labour Conference (May–June 2008).
134. C. Court cases still pending
135. 57. The mission requested a meeting with the Minister of Justice, Prisons and Islamic Affairs to discuss allegations relating to the arrest of trade unionists. The mission notes the commitment of the Minister to carry out the necessary checks and to inform the Office accordingly. With regard to the charges against certain unionists of “supplying information to a foreign power”, which were subsequently reclassified by a decision of the public prosecution authority to “publicly insulting the authorities”, the mission notes that the case is still under investigation and that no decision has yet been handed down. The mission recommends that the Government take all necessary measures to ensure that this matter is resolved swiftly and definitively.
136. D. Social dialogue at the Port of Djibouti
137. 58. The mission has taken note of the procedures followed in this dispute and of the documents submitted. It has also taken note of the copies of the agreements reached between the Port of Djibouti and Mr Ahmed Abdi Walieh, Ms Samira Hassan Mohamed, Mr Youssouf Houmed Mohamed, Mr Abdourahman Bouh Iltireh, Mr Koulmiyeh Houssein Ahmed, Mr Djibril Houssein Waliyeh, Mr Wahib Ahmed Dini, Mr Ibrahim Moussa Sultan, Mr Kamil Mohamed Ali, Mr Yacin Ahmed Robleh, Mr Mohamed Ahmed Mohamed, Mr Mohamed Abdillahi Omar, Mr Mohamed Ali Ahmed, Mr Mohamed Abdillahi Dirieh, Mr Moustapha Abchir Egueh, Mr Moustapha Moussa Houssein, Mr Ali Abrahim Darar and Mr Ali Ibrahim Chireh. In the agreements, these individuals accept compensation in return for withdrawing all present and future action of a criminal, social, civil and commercial nature and agree not to bring the Port of Djibouti to court. For its part, the Port of Djibouti agrees to withdraw any pending complaint and not to initiate court proceedings. This is a compromise settlement in the form of a lump-sum, all-inclusive and one-off payment which, under section 2052 of the Civil Code, has the status of res judicata and cannot be subject to appeal on grounds of legal error or damage.
138. 59. The mission would like to recall the need to remove any discriminatory measure that might prevent the dismissed workers from working within the port area in enterprises providing port services, or elsewhere.
139. E. Improvements to the legal framework
140. 60. The mission notes that the Government has demonstrated a certain openness to the issue of the legislative amendments requested by the ILO’s supervisory bodies. Indeed, the Government has not only provided details of some of the amendments that it intends to introduce, but it also indicated that it is very much in favour of the technical assistance and the advice that the Office could provide in this regard.
141. 61. At a technical meeting held at the end of the visit, the Government made a commitment to amend the provisions that have been the subject of comments by the supervisory bodies.
142. – Section 41 of the Labour Code.?A proposal for alternative wording will be sent to the ILO for comments.
143. – Section 42.?The reference to trade unions will be deleted from paragraph 8.
144. – Sections 214 and 215.?The Government has undertaken a commitment to amend these sections so as to bring them into line with Convention No. 87 and requests the ILO to assist it with the drafting. It committed to reducing the time required for the registration of a trade union to 30 days.
145. – Section 23 of Decree No. 83-099/PR/FP of 10 September 1983.?A list of essential services will be drawn up in consultation with the social partners.
146. 62. The mission notes that these draft legislative amendments will be submitted, for an opinion, to the National Council of Labour, Employment and Vocational Training (CNTEFP). It notes that the CNTEFP has not yet been established to date and wishes to advise the Government against excessive delays in this regard and especially against any rise of a new blockage. The mission notes that section 277, paragraph 1, of the Labour Code provides that the CNTEFP is composed “in equal numbers of representatives of the most representative national workers’ and employers’ organizations”. The mission noted during its discussions, however, that the issue of the representativeness of workers’ organizations in Djibouti is viewed very differently by the Government and by the social partners (the Intersyndicale UDT/UGTD, the UGTD and the AED). In addition, the mission notes that Decree No. 2008-0023/PR/MESN of 20 January 2008 (a copy of which it received), relating to the organization and operation of the CNTEFP, contains a provision that might allow the Minister of Employment and National Solidarity to select members who represent workers’ organizations on a discretionary basis: section 2, paragraph 4, of the Decree provides that “In the event that no organization can be regarded as the most representative, the Minister of Employment and National Solidarity shall be responsible for directly appointing the relevant Council members”.
147. 63. The mission is of the opinion that, in the current context, given that the representative nature of workers’ organizations has not yet been clearly and objectively determined, no representative of trade union activity in Djibouti should be excluded from the work of the CNTEFP. Accordingly, the mission urges the Government to allow the Intersyndicale UDT/UGTD as the representative of the most representative workers’ organizations, on an equal footing with the UGTD to participate actively in the work of the CNTEFP and therefore to allow it to express its views in a forum of open and constructive dialogue.
148. F. Representation of Djibouti workers at
149. the International Labour Conference
150. 64. The mission notes that no satisfactory solution to this question has been found. Although the Minister of Employment and National Solidarity considers that the UDT is not representative, the leaders of the UDT believe that their confederation is the most representative one and should therefore carry the mandate of a titular Workers’ delegate.
151. 65. The mission is not convinced that all the elements needed to organize transparent and fair social elections are currently in place in Djibouti, to allow for such elections to be held peacefully before the 97th Session of the International Labour Conference (May–June 2008). The mission is of the opinion that ILO technical assistance would be useful to facilitate the holding of such elections as long as all trade union structures are able to operate freely.
152. 66. The mission did its utmost to ensure that the Government understood the expectations of the Credentials Committee with regard to preparing a detailed report explaining the procedure used to nominate the Workers’ delegation of Djibouti. The mission proposed a compromise solution to accommodate the current diversity of opinions, namely that the UDT be included in the Djibouti delegation at the 2008 session of the Conference in order to include both the confederations that represent the country’s workers pending the results of elections which will determine the most representative workers’ organization(s). In any event, the trade union confederations (UDT and UGTD) should form part of the delegation of Djibouti to the Conference in 2008. The mission notes the statement by the Minister of Employment and National Solidarity that this proposal will be forwarded to the Government.
153. G. ILO technical assistance
154. 67. In order to help the Government of Djibouti and the workers’ and employers’ organizations carry out the necessary reforms, the Office is prepared to provide technical assistance in implementing the mission’s various recommendations and any other activities that pertain to the ILO’s remit. This technical assistance will primarily be provided under the guidance of the Subregional Office of the ILO in Addis Ababa in coordination with the relevant technical departments at headquarters. It is understood that this assistance will be provided to all the tripartite constituents in Djibouti without exception and will be coordinated when appropriate with the assistance provided by the UN agencies in Djibouti and by bilateral or multilateral donors such as the European Union.
155. * * *
156. 68. In conclusion, the direct contacts mission wishes to emphasize the need to resolve without delay the current situation in Djibouti, where bipartite and tripartite social dialogue has come to a standstill. Accordingly, the mission recommends that the Government recognize the right of the UDT and the Intersyndicale UDT/UGTD to fully exercise their legitimate trade union activities, in accordance with national legislation and the principles of international labour standards. The mission has advised all those concerned to adopt a forward-looking spirit of compromise, but considers however that the Government has a great responsibility in this regard and an important role to play in driving this new process forward. A major and symbolic first step would be to settle the question of the reinstatement of the workers dismissed in 1995, their compensation and the payment of their social security contributions. In this regard, the mission trusts that those government authorities which have made concrete commitments will begin negotiations without delay. Lastly, the mission believes that the Government should, in a spirit of openness, initiate genuine concertation between all the social partners, regardless of its perception of them, with a view to holding fair and transparent social elections in a climate of confidence. The mission trusts that all those concerned will agree that the best social dialogue is one that is inclusive – not exclusive – and one which aims to resolve all pending issues in a spirit of cooperation, sincerity and good will.
157. Mr Yéro Dé
158. 9 April 2008
159. Appendix I
160. Timetable of meetings of the direct contacts mission
161. (21–25 January 2008)
162. Date and time
163. Meeting
164. Contact
165. Monday 21 January 2008
166. 4 p.m.
167. Minister of Employment and National Solidarity
168. 5 p.m.
169. Technical meeting with representatives of the Ministry of Employment and National Solidarity
170. Tuesday 22 January 2008
171. 9 a.m.
172. Djibouti Port Authority
173. 11 a.m.
174. UNDP Resident Coordinator and other resident UN agencies
175. 3 p.m.
176. Intersyndicale UDT/UGTD and Union of Port Workers
177. Wednesday 23 January 2008
178. 10 a.m.
179. Department of Labour/Management of the National Agency for Employment and Vocational Training
180. 12 noon
181. European Commission delegation
182. 3 p.m.
183. Employers’ Association of Djibouti (AED)
184. 5 p.m.
185. General Union of Djibouti Workers (UGTD)
186. 7 p.m.
187. Working meeting with the Secretary-General of the Ministry of Employment and National Solidarity
188. 8 p.m.
189. Intersyndicale UDT/UGTD
190. Thursday 24 January 2008
191. 9 a.m.
192. Minister of Justice, Prisons and Islamic Affairs
193. 11 a.m.
194. Minister of Employment and National Solidarity
195. 1 p.m.
196. Prime Minister
197. Appendix II
198. List of interlocutors
199. I. Government
200. Office of the Prime Minister
201. Mr Dileita Mohamed Dileita, Prime Minister
202. Minister of Employment and National Solidarity
203. Mr Houmed Mohamed Dini, Minister
204. Mr Ali Yacoub Mahamoud, Secretary-General of the Ministry
205. Mr Guedi Absieh Houssein, National Director of Labour and Relations with the Social Partners
206. Mr Ali Mohamed Kamil, Director-General of the National Agency for Employment, Vocational Training and Labour Market Integration (ANEFIP)
207. Mr Charmarke Idriss Ali, Director of the National Institute of Public Administration
208. Ms Aicha Hassa-Mohamed, Chief of the Office of Labour, Labour Regulations and Freedom of Association
209. Ms Adwa Seif Kayad, Chief of the International Relations Unit
210. Ms Koina Omar Dahelo, Acting Labour and Social Legislation Inspector
211. Ministry of Justice
212. Mr Mohamed Barkat Abdillahi, Minister
213. II. Representative employers’ organization
214. Employers’ Association of Djibouti (AED)
215. Mr Hamodou Hassan Ibrahim, President
216. Mr Jean-Philippe Delarue, Vice- President
217. Mr Luc Beiso
218. Mr Nicolas Guedj
219. III. Representative workers’ organizations
220. Intersyndicale UDT/UGTD
221. Mr Adan Mohamed Abdou, Secretary-General (UDT)
222. Mr Kamil Dirane Hared, Secretary-General (UGTD)
223. Mr Farah Abdillahi Miguil, Secretary-General for Communication (UDT)
224. Mr Abdoulrazack Hared Farah, Legal Affairs Secretary (UDT), Secretary-General of the Djibouti Telecom Staff Union
225. Mr Abdillahi Aden Ali, Treasurer (UGTD)
226. Mr Anouar Mohamed Ali, Secretary-General of the Djibouti Electricity Workers’ Union
227. Mr Ali Mohamed Kamil, Secretary-General of the Union of Workers in the Construction and Public Works Sector (SP-BTP)
228. Mr Aouad Ibrahim Arnahoud, National Printing Union
229. Mr Habib Ahmed Doale, former Secretary-General of the Djibouti Electricity Workers’ Union
230. Union of Port Workers (UTP)
231. Mr Ahmed Ali Aras, Secretary-General
232. Mr Ali Ibrahim Darar, Deputy Secretary-General
233. Mr Mohamed Ahmed Mohamed, Legal Affairs Secretary
234. Mr Mohamed Ali Mohamed, External Relations Secretary
235. General Union of Djibouti Workers (UGTD)
236. Mr Ado Sikieh Dirieh, Secretary-General
237. Mr Hassan Ali Doualeh, Deputy First Secretary
238. Mr Mohamed Moussa Idriss, Administrative Secretary
239. Mr Said Ahmed Egueh, Financial Secretary
240. Mr Issé Ibrahim Chirdon, Press Secretary
241. Mr Mohamed Ahmed Egueh, Deputy Information Secretary
242. Mr Youssouf Houssein Robleh, Deputy Information Secretary
243. Mr Said Yonis Waléri, Coordination Secretary
244. Ms Asli Aden Hadi, Secretary for Women’s Affairs
245. Mr Idriss Ali Batoun, External Relations Secretary
246. Mr Kaneh Ali Robleh, Records Secretary
247. Mr Djibril Egueh Illueh, Secretary for Cultural Affairs and Sports
248. Mr Seck Abdo Daoud, Adviser to the Union’s Officers
249. Mr Mahdi Med Hassan, Documentation Secretary
250. Mr Saade Hassan Ibrahim, Legal Affairs Secretary
251. Mr Mohamed Waiss Olieh, Auditor
252. Mr Alow Mohamed Abdallaha, Secretary-General of the Djibouti Telecom Union (STDT)
253. IV. Port of Djibouti
254. Mr Aden Ahmed Douale, Government representative
255. Ms Deka Y. Mohamed, Chief of the Legal Department
256. V. United Nations agencies and European
257. Union representation
258. UN agencies
259. Mr Sunil Saigal, UNDP Resident Representative and Resident Coordinator of the UN system’s operational activities in Djibouti
260. Ms Aicha Ibrahim Djama, UNFPA
261. Dr Mostafa Tyane, WHO
262. Mr Benoît Thiry, WFP
263. Dr Aloys Kamuragiye, UNICEF
264. Representative of UNHCR
265. European Commission delegation to Djibouti
266. Mr Joaquin Gonzalez-Ducay, Head of Mission