Report in which the committee requests to be kept informed of development - Report No 375, June 2015

Case No 3105 (Togo) - Complaint date: 26-SEP-14 - Closed

Allegations: The complainant organizations denounce the Government’s incapacity to prevent obstruction and interference with respect to the election of representatives to the National Council of Employers of Togo (CNP)

1. 492. The complaint is contained in communications dated 26 September and 12 December 2014 from the International Organisation of Employers (IOE) and the National Council of Employers of Togo (CNP).
2. 493. The Government indicated in a communication dated 8 January 2015 that the examination of the complaint was in progress and that the corresponding replies would be sent as soon as possible. To date, no information has been received from the Government.
3. 494. Since there has been no reply from the Government, the Committee has been obliged to postpone its examination of the case on two occasions. At its March 2015 meeting [see 374th Report, para. 6], the Committee issued 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 meeting, even if the requested information or observations had not been received in due time.
4. 495. Togo 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. The complainants’ allegations

1. 496. In a communication dated 26 September 2014, the complainant organizations indicate that the CNP was established in 1963 to represent the private sector both in Togo and internationally. It is an umbrella federation for 16 professional associations representing enterprises in industry, commerce, the services sector, construction and public works, SMEs/SMIs and all other sectors of economic activity in the country. The CNP also lobbies on economic and social policy matters, and is a body that provides coordination, training, information and action for the private sector. The CNP has been a member of the IOE since 1997. Lastly, the CNP is also a member of the Federation of West Africa Employers’ Associations (FWAEA), a regional employers’ organization whose mission is to defend and promote its members’ interests. The complainants explain that the FWAEA has been involved in the present case and has attempted to act as a mediator in the dispute, but without success.
2. 497. The complainants denounce the Government’s incapacity to prevent obstruction to the right of CNP members to freely elect their representatives, the consequence of which has been to prevent the organization from organizing its activities and formulating its programme of action. The complainants report the situation described below.
3. 498. On 20 September 2013, the members of the CNP were called upon to elect a new management board, for a five-year term, during an ordinary general assembly. In view of these elections and in order to ensure transparency and impartiality, the management board had decided on 10 July 2013 to set up an ad hoc commission responsible for organizing and supervising the elections of the new board. At the general assembly, after verifying the existence of a quorum, the elections took place in the presence of the ad hoc commission, composed of a president and three members. The elections were held in the presence of a bailiff from the Lomé Appeal Court, whose presence during the work – from the counting of votes for the candidates to the announcement of the results – ensured the transparency of the elections. The bailiff drew up records of the work done by the electoral commission.
4. 499. The general assembly democratically re-elected Mr Kossivi Naku to the presidency of the CNP; the second-placed candidate for this post was Mr Ahlonko Bruce, who received six votes compared to eight for Mr Naku in the second round. Mr Bruce congratulated Mr Naku on his victory. The general assembly also democratically elected the other members of the management board, namely the vice-president and the treasurer.
5. 500. However, on 6 January 2014, more than three months after the election of Mr Naku and without having lodged any protest before or during the elections, Mr Bruce applied to the interim relief judge at the Court of First Instance of Lomé to annul the elections of 20 September 2013, in which, he claimed, irregularities had taken place. On 10 January 2014, the interim relief judge issued a ruling cancelling the disputed elections and ordered an interim administration to be established for the CNP.
6. 501. On 10 January 2014, Mr Naku appealed against the ruling issued by the interim relief judge and requested a suspension of execution. His appeal was granted. On 12 March 2014, the Lomé Appeal Court issued a ruling recognizing the Court of First Instance’s lack of jurisdiction in the matter and overturned its judgment.
7. 502. On 12 March 2014, Mr Bruce applied to the Court of First Instance of Lomé (First Chamber) to request invalidation of the elections which he considered to be flawed with irregularities and call for the appointment of an interim administration mandated to convene a new electoral general assembly. In its judgment of 4 April 2014, further to its substantive examination, the court revealed irregularities in the election of the management board. The court therefore declared the elections of 20 September 2013 null and void and appointed an interim administrator for the CNP (Mr Papaly) with the mandate of holding a new general assembly within 18 months. The court ordered the provisional enforcement of its judgment. On 14 April 2014, an order for the sealing (closure) of the CNP offices was notified to Mr Naku, a measure that was immediately enforceable.
8. 503. According to the complainants, none of the CNP member organizations challenged the results of the elections of 20 September 2013 or appealed to the judicial authority regarding this matter. Moreover, the 16 professional associations belonging to the CNP signed a statement on 30 April 2014 certifying that the elections of 20 September 2013 had been properly conducted, transparent and accepted by all CNP members and calling for the result thereof – namely, the election of Mr Naku to the CNP presidency – to be respected.
9. 504. The complainant organizations add that the FWAEA, represented by its executive secretary, visited Lomé from 6 to 8 May 2014 to hear all the parties to the dispute and finally issued a report expressing the view that the judgment of 4 April 2014 declaring the elections null and void was “extremely damaging to the functioning of the CNP and even constituted a clear obstacle to the functioning of the CNP”.
10. 505. The complainants object that, further to the appointment of Mr Papaly as interim administrator, he was accredited by the Government as an Employers’ delegate to the International Labour Conference (ILC) in May–June 2014 instead of Mr Naku, who was therefore unable to represent the CNP at the Conference and lodged a complaint to that effect with the ILC Credentials Committee. With a view to his participation as CNP representative to the IOE General Council, where his presence was crucial as regards ensuring that the needs of the CNP were taken into account in the formulation of the IOE’s annual programme of action, Mr Naku went to Geneva on 27 May 2014. He was then able to participate in the work of the ILC, at his own expense, as an observer accredited by the IOE but without the right to vote.
11. 506. The complainants denounce the fact that the appointment of an interim administrator responsible for organizing a new electoral general assembly within 18 months has had the effect of bringing the activities of the CNP to a complete standstill, and the CNP is no longer able to implement its programme or protect or promote its members’ interests.
12. 507. The complainants affirm that Mr Bruce submitted his candidacy for the position of president of the CNP despite the conflict of interest between his public service role and the need to ensure the independence of the CNP vis-à-vis the public authorities. However, this type of conflict of interest is not covered by any specific regulations at the national level, thereby leaving the State with the capacity to interfere in the affairs of professional organizations.
13. 508. Since 2012 Mr Bruce has been the traditional chief of the town of Aného, a title and position which, under section 1 of Act No. 2007-002 of 8 January 2007, depend directly on the Ministry of Territorial Administration, Decentralization and Local Communities and come within the budget of the State. In the performance of his duties, Mr Bruce must conduct himself “as the worthy representative of the people and show loyalty to the State” (section 24 of Act No. 2007-002). According to the complainants, these provisions clearly show that the role of traditional chief and the presidency of the CNP are incompatible.
14. 509. Despite the fact that the Minister of Territorial Administration affirmed that “as the legislation stands, there is no incompatibility or prohibition preventing a traditional chief from exercising responsibility, electoral or otherwise, in an employers’ or workers’ organization”, such incompatibility was underlined by the ad hoc commission responsible for holding and supervising the elections of the new management board, which informed Mr Bruce accordingly by letter on 9 September 2013. That letter reiterates the stance adopted on 2 September 2013 by the official in charge of employers’ activities of the Decent Work Technical Support Team at the ILO Office in Dakar, as follows: “The credibility of an employers’ organization and its capacity for playing its role are based on its independence vis-à-vis the national authorities with which it has to negotiate. It is therefore essential to avoid any conflict of interest on the part of its executive body. Certain functions such as being a public servant are thus incompatible with the office of president and even of member of the management board.”
15. 510. The complainants regret that the judge of the Court of First Instance of Lomé (First Chamber) made no reference to the question of incompatibility between the public office held by Mr Bruce and his candidacy for the position of CNP president, which, however, is of fundamental importance in settling the dispute.
16. 511. The complainants observe that Mr Bruce accuses the ad hoc commission responsible for holding and supervising the elections to the new management board of having been directed by Mr Naku, of having been neither impartial nor independent and of having “created inequality and a complete imbalance among the candidates and voters”. However, they note that none of the CNP member organizations complained, formally or informally, about the course of the elections, which suggests that the work of the commission was beyond reproach.
17. 512. Lastly, the complainants express their surprise at the analysis of the Court of First Instance of Lomé (First Chamber) concerning the presence of the bailiff, who validated the work of the electoral commission and the election procedure by means of records and who the court considers in its judgment as having “played a role of auxiliary judicial officer responsible, inter alia, for establishing a record of certain situations or events”. The purpose of his presence was to record the fact that those operations took place, regardless of whether they were properly conducted. According to the complainants, such arguments remove any importance or value from a bailiff’s presence during the electoral commission’s work.
18. 513. In a communication dated 12 December 2014, the complainants object to further obstruction by the authorities of the CNP members’ right to freely elect their representatives and to secure observance of the organization’s constitution and rules. Hence the complainants denounce the ruling issued by the Lomé Appeal Court (No. 232/2014) on 8 October 2014, in which the court considers that the judgment of the Court of First Instance “did not justify [the interim administration headed by Mr Papaly] in terms of the appointment of its members and the duration assigned to it; that there is no legal structure underpinning this appointment, which therefore lacks any legal basis; that his presence at the head of CNP Togo is not justified”. Thus the court partially grants Mr Naku’s appeal by appointing “the eldest of the presidents of the CNP Togo member associations as interim administrator of the employers’ association”; “the youngest of the presidents of the CNP Togo member associations as interim general secretary”; and “the vice-president of the Lomé Appeal Court to appoint the officers of the interim administration within 12 days from the pronouncement of the decision”. The court stipulates that the mandate of the interim administration is to hold an electoral general assembly within three months from the date of its establishment.
19. 514. On 17 October 2014, the vice-president of the Appeal Court called a meeting with the presidents of the 16 professional associations comprising the CNP, as requested by the court. As a result of the meeting, a president and a general secretary of the interim administration were appointed. However, the complainants consider that this represents a further attempt at interference by the public authorities in the running of the CNP.
20. 515. Further to this ruling and with a view to finding a solution to the delicate situation of the CNP, an extraordinary general assembly, convened on 22 October 2014, which was attended by 15 of the 16 presidents of the professional associations comprising the CNP, adopted the following resolutions:
    • - the establishment of an election steering and organization committee with the mandate of updating the CNP rules and holding elections within three months;
    • - the management of day-to-day matters remains within the competence of the management board, which undertakes to hand over authority once the new members have been elected. Its mandate will end on the actual day of the elections;
    • - all the participants expressed their gratitude to Mr Naku for his wisdom and know-how in conducting the extraordinary general assembly, which went ahead smoothly;
    • - complete authority is given to the bearer of the present resolutions to make proper use of them.
21. 516. The complainants explain that, at the extraordinary general assembly, Mr Naku declared publicly that he would not stand as a candidate for the elections to the CNP executive bodies.
22. 517. By way of conclusion, the complainants request the Committee on Freedom of Association to urge the Government to take the necessary measures to:
    • - ensure that the results of the 20 September 2013 elections and all requests from CNP members are honoured;
    • - reopen the CNP offices to enable the management board and its elected president to perform their duties;
    • - reimburse Mr Naku for the expenses he was obliged to incur to participate in the ILC from 26 May to 12 June 2014;
    • - ensure that there is no reoccurrence of this kind of situation, which seriously hampers the activities of the CNP and the formulation of its programme of action.

B. The Committee’s conclusions

1. 518. The Committee regrets that, despite the time that has elapsed since the presentation of the complaint, the Government has not replied to the complainants’ allegations, despite being requested several times, including through an urgent appeal, to present its comments and observations on this case. In view of the seriousness of the allegations concerning the capacity of employers’ organizations to function and conduct their activities on behalf of their members, the Committee deeply regrets that the Government has not taken any action since indicating its intention in January 2015 to reply quickly to the present complaint. The Committee urges the Government to be more cooperative in the future.
2. 519. Hence, in accordance with the applicable procedural rules [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee is obliged to present a report on the substance of the case without being able to take into account the information it had hoped to receive from the Government.
3. 520. The Committee reminds the Government that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to ensure respect for this freedom in law and in practice. The Committee is confident that, if this procedure protects governments against unreasonable accusations, governments on their side will recognize the importance of formulating for objective examination detailed replies to such allegations as may be made against them [see First Report of the Committee, para. 31].
4. 521. The Committee notes that the present case deals with alleged interference by the public authorities in the election of representatives to the National Council of Employers of Togo (CNP). The information provided by the complainant organizations shows that the CNP held elections for a new management board at an ordinary general assembly on 20 September 2013. An ad hoc commission responsible for holding and supervising the elections of the new board was set up for this purpose and a bailiff drew up records of the work of the general assembly and the running of the elections. Hence, according to the complainants, the general assembly democratically elected all the members of the management board, including Mr Kossivi Naku as CNP president. The Committee notes, however, that three months after the elections the second-placed candidate for the CNP presidency, Mr Ahlonko Bruce, who was defeated in the second round but did not voice any opposition to the results at the time, applied to an interim relief judge on 6 January 2014 to request invalidation of the elections of 20 September 2013, in which he considered irregularities to have taken place. The interim relief judge granted Mr Bruce’s request and declared the elections invalid by a ruling of 10 January 2014. However, this ruling was then overturned by the Lomé Court of Appeal, to which the CNP had applied, on the grounds that the relief judge had no jurisdiction and the parties were referred back to the Court of First Instance of Lomé. Mr Bruce then applied to the Court of First Instance of Lomé (class one) to request invalidation of the elections and call for the appointment of an interim administration mandated to convene a new electoral general assembly. The Committee observes that by a judgment of 4 April 2014 the court established serious irregularities, which were contrary to the organization’s own constitution, in the holding of the elections of 20 September 2013, declared those elections null and void, and appointed an interim administrator (Mr Papaly), a general secretary (Mr Adjogah) and a treasurer (Mr Aziabu) with the task of holding a new ballot within 18 months from the date of the judgment.
5. 522. The Committee notes that, further to the judgment of the Court of First Instance of Lomé (First Chamber), the 16 professional associations belonging to the CNP held an extraordinary meeting on 30 April 2014 at the end of which they signed a declaration certifying that the elections of 20 September 2013 had been conducted properly and transparently and been accepted by all CNP members and called for their outcome to be respected.
6. 523. Finally, the Committee notes the communication of 12 December 2014 from the complainants, according to which, in its ruling issued on 8 October 2014, the Lomé Appeal Court, to which the CNP applied, considered the-court of first instance ruling establishing an interim administration for the CNP as lacking any legal basis and decided to appoint an interim administration emanating from the organization. Since the constitution of the organization does not include provisions on the invalidation of elections, the court decided to apply the criterion of age, appointing the eldest of the presidents of the CNP member associations as interim administrator and the youngest as general secretary. The Committee notes that the complainants were not satisfied with this decision, seeing it as further obstruction by the authorities of the CNP’s right to elect its own leaders and organize the way it is run according to its own constitution. In the wake of this ruling, the CNP held an extraordinary general assembly as a result of which the following resolutions concerning the holding of new elections were adopted: (i) the establishment of an election steering and organization committee with the mandate of updating the organization’s rules and holding elections within three months; (ii) the management of day-to-day matters remains within the competence of the management board, which undertakes to hand over authority once the new members have been elected. Its mandate will end on the actual day of the elections.
7. 524. As regards internal disputes within a professional organization, the Committee recalls that it has no competence to adopt any position regarding the internal disputes of a workers’ or employers’ organization unless the Government has intervened in a manner that might affect the exercise of trade union rights and the normal functioning of the organization in question. In this regard the Committee has frequently recalled the principle whereby, in the case of internal dissention within one and the same trade union federation, by virtue of Article 3 of Convention No. 87, the only obligation of the government is to refrain from any interference which would restrict the right of the workers’ and employers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes, and to refrain from any interference which would impede the lawful exercise of that right. Lastly, in cases of internal dissentions within a trade union organization, the Committee has regularly emphasized that judicial intervention would permit a clarification of the situation from the legal point of view for the purpose of settling the question of the leadership and representation of the organization concerned [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 1116 and 1117].
8. 525. In the present case, the Committee observes that the court of first instance in question issued a ruling on 4 April 2014 invalidating the elections of 20 September 2013 on the grounds of violations of certain rules in the constitution of the organization concerning the election of members of the management board, unconnected with the election of the president. The Committee further notes that the appeal court did not call into question the grounds for invalidating the elections but only the legal basis for the appointment of an interim administration for the CNP during the transition period prior to the holding of new elections.
9. 526. Without engaging in any substantive analysis of the decisions rendered, the Committee notes that in the present case the dispute was settled by the judicial authority, which sought to appoint an interim administration with a view to new elections being held quickly. In this regard, the Committee has always pointed out that judicial intervention would permit a clarification of the situation from the legal point of view for the purpose of settling questions concerning the management and representation of the trade union federation concerned. Another possible means of settlement would be to appoint an independent arbitrator to be agreed on by the parties concerned, to seek a joint solution to existing problems and, if necessary, to hold new elections [see Digest, op. cit., para. 1124]. If the solution proposed by the justice system does not suit the parties to the dispute, the Committee invites them to endeavour to agree on the appointment of an independent arbitrator who would assist them in implementing a procedure accepted by all to enable the CNP members to choose their representatives freely and quickly, in accordance with the principles of freedom of association recalled above.
10. 527. With regard to the allegations from the complainants that Mr Bruce submitted his candidacy for the post of CNP president despite the conflict of interest between his public function as traditional chief of the town of Aného since 2012 and the need to ensure the independence of the CNP vis-à-vis the public authorities, the Committee notes that the complainants consider that the title of traditional chief of the town of Aného depends directly on the Ministry of Territorial Administration, Decentralization and Local Communities and comes within the budget of the State, in accordance with section 1 of Act No. 2007-002 of 8 January 2007. Under section 24 of Act No. 2007-002, in the performance of his duties, Mr Bruce must conduct himself “as the worthy representative of the people and show loyalty to the State”. This obligation makes his office incompatible with that of CNP president, according to the complainants. The complainants regret that the judge of the Court of First Instance of Lomé (First Chamber) made no reference to the question of incompatibility between the public office held by Mr Bruce and his candidacy for the position of CNP president, which, however, is of fundamental importance in settling the dispute.
11. 528. The Committee recognizes the need for an employers’ organization to ensure its credibility and its independence vis-à-vis the national authorities, with which it has negotiated, by avoiding any conflict of interest in its executive body, in particular between certain functions in the management board and those exercised by a public servant. While noting the authorities’ view that there is no incompatibility or prohibition as the legislation stands preventing a traditional chief from exercising responsibility, electoral or otherwise, in an employers’ or workers’ organization, the Committee is of the opinion that, if an organization considers that a public office or duty is incompatible with a position in its own leadership, elected or otherwise, it has full scope to incorporate this matter in its constitution, in accordance with the right of professional organizations to draw up their constitutions and rules in full freedom without interference from the authorities, particularly as regards election procedures.
12. 529. The Committee notes with concern the indication that Mr Naku was notified on 14 April 2014 of the order for the closure (sealing) of the CNP offices and that since that date he and the other CNP members are denied access to CNP headquarters, bringing the activities of the organization to a complete standstill. Despite the fact that the sealing of the CNP premises was by court order, the Committee is bound to regret the fact that the organization in question has now been unable for a year to organize its activities or adequately protect its members’ interests. The Committee urges the Government to announce the reopening (unsealing) of the CNP premises and in the meantime to take all necessary steps to enable the CNP to conduct without hindrance its activities for the defence and promotion of its members’ interests pending the holding of new elections to its management board.
13. 530. Lastly, the Committee notes the complainants’ objection to the fact that the appointed interim administrator was subsequently accredited by the Government as an Employers’ delegate to the May–June 2014 session of the ILC instead of Mr Naku, who took part at his own expense in the ILC as an observer accredited by the IOE without the right to vote and lodged a protest with the ILC Credentials Committee on this matter. Recalling that matters relating to participation in the ILC come within the competence of the Credentials Committee, the Committee notes, however, that in its analysis of Mr Naku’s complaint, the Committee indicated that the powers conferred on an interim administrator by a court decision should not be such as to prevent the representative chosen by the employers from exercising his functions at the Conference. The Committee also recalled that the only purpose of intervention by professional organizations in the appointment of delegates and technical advisers is to ensure that governments will appoint persons whose opinions will be in harmony with the respective opinions of the employers and workers. In conclusion, the Committee observes that the Government should have held consultations to ensure fully the representation of the employers at the Conference. The Committee expects the Government to ensure that the appointment of the Employers’ delegate to future sessions of the ILC will be undertaken in full conformity with the ILO Constitution.

The Committee’s recommendations

1. 531. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee regrets that, despite the time that has elapsed since the presentation of the complaint, the Government has not replied to the complainants’ allegations, despite being requested several times, including through an urgent appeal, to present its comments and observations on this case. In view of the seriousness of the allegations concerning the capacity of employers’ organizations to function and conduct their activities on behalf of their members, the Committee deeply regrets that the Government has not taken any action since indicating its intention in January 2015 to reply quickly to the present complaint. The Committee urges the Government to be more cooperative in the future.
   • (b) If the solution proposed by the justice system does not suit the parties to the dispute, the Committee invites them to endeavour to agree on the appointment of an independent arbitrator who would assist them in implementing a procedure accepted by all to enable the CNP members to freely and quickly choose their representatives.
   • (c) The Committee urges the Government to announce the reopening (unsealing) of the CNP premises and in the meantime to take all necessary steps to enable the CNP to conduct without hindrance its activities for the defence and promotion of its members’ interests pending the holding of new elections to its management board. The Committee, recalling that employers’ or workers’ organizations should have the right to draw their constitutions and rules in full freedom without interference from the authorities, particularly as regards elections procedures, reminds the Government to respect this principle when reviewing the current case and in the future.
   • (d) The Committee expects the Government to ensure that the appointment of the Employers’ delegate to future sessions of the ILC will be undertaken in full conformity with the ILO Constitution.