Interim Report - Report No 380, October 2016

Case No 3067 (Democratic Republic of the Congo) - Complaint date: 15-APR-14 - Active

Allegations: The complainants denounce Government interference in trade union elections in the public administration, intimidation, and the suspension and detention of union officials at the instigation of the Ministry of Public Service

1. 332. The Committee last examined this case, brought by sixteen public service unions, during its meeting in November 2015 and on that occasion presented an interim report to the Governing Body [see 376th Report, approved by the Governing Body at its 325th Session (November 2015), paras 928–956].
2. 333. The Union of State Officials and Civil Servants (SYAPE) provided additional information in a communication dated 11 August 2016.
3. 334. 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 meeting in June 2016 [see 379th Report, para. 9], the Committee expressed regret at the Government’s persistent non-cooperation and launched an urgent appeal to the Government indicating that a report would be presented on the substance of the matter at its next meeting, even if the information or observations requested had not been received on time. In addition, a Government delegation had met with the two Vice-Chairpersons and the coordinator of the Government members of the Committee in order to address the Government’s lack of response and how it could be resolved. To date, the Government has not sent any information.
4. 335. The Democratic Republic of the Congo has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers’ Representatives Convention, 1971 (No. 135).

A. Previous examination of the case

1. 336. During its previous examination of the case in November 2010, the Committee made the following recommendations [see 376th Report, para. 956]:
   • (a) The Committee regrets that 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. The Committee urges the Government to be more cooperative in the future.
   • (b) The Committee urges the Government to take without delay the necessary steps related to the contested 2013 decrees adopted by the Ministry of Public Service in order to review them in consultation with the relevant workers’ organizations. The Committee requests the Government to keep it informed in this regard.
   • (c) The Committee urges the Government, in addition to reviewing the 2013 decrees, to hold, without delay, consultations with all the relevant representative workers’ organizations, particularly the INSP and the SIAP, on ways of representing workers’ interests in terms of collective bargaining in public administration. The Committee requests the Government to keep it informed in this regard.
   • (d) The Committee requests the Government to provide the INAP’s founding document and the handover document between the INSP and the INAP and to report its observations on the matter.
   • (e) The Committee expects the Government to issue immediate instructions so that trade union members who are exercising their rightful trade union duties in public administration cannot be subjected to prejudice in the workplace and so that those responsible for these acts are punished. Furthermore, the Committee urges the Government to conduct investigations on the aforementioned disciplinary action cases against trade union leaders in order to determine if they were punished for carrying out the lawful exercise of their trade union activities and, if appropriate, to award compensation that sufficiently discourages further disciplinary action.
   • (f) Noting that Mr Muhimanyi and Mr Endole Yalele filed a complaint before the appeals court for the violation of the legal time limit for concluding a disciplinary case, the Committee urges the Government to keep it informed of the result of this complaint.
   • (g) The Committee urges the Government to conduct without delay an investigation into the circumstances behind the arrest and detention of trade union leaders in July 2013 and November 2014 and to keep it informed of the findings and follow-up action.
   • (h) The Committee urges the Government to keep it informed of the status of the complaint filed by Mr Modeste Kayombo-Rashidi with the Kinshasa/Gombe prosecution authorities against Mr Constant Lueteta, INAP Secretary, for having made death threats.
   • (i) The Committee urges the Government to inform it of the follow-up given to the administrative and judicial appeals brought by the complainants.

B. Additional information from the complainants

1. 337. In a communication dated 24 May 2016, the complainant organizations, grouped under the Independent Trade Unions of the Public Administration (SIAP), report that the situation has remained unchanged since the Committee’s recommendations. Additionally, the complainant organizations reported reprisals against certain trade union leaders and members, in particular the dismissal of Mr Nkungi Masewu, President of Union of State Officials and Civil Servants (SYAPE), and Mr Embusa Endole, President of the Espoir union, as well as disciplinary action against Mr Gongwaka, Mr Kaleba and Mr Kalambay.
2. 338. Furthermore, recalling that the latest disputed elections were for the central services, the complainant organizations report ongoing consultations in which the administration had decided to work exclusively with the National Public Administration Inter-union Association (INAP) to organize elections in other public administration bodies (such as education, health and related services in some public administrations), including in the provinces.
3. 339. In a communication dated 11 August 2016, the SYAPE reports disciplinary measures, including dismissal from the public service, against several trade union leaders in reprisal for sending open letters to the Government. According to the SYAPE, the Minister of the Public Service requested the Secretary-General of the Public Service responsible for personnel matters to initiate disciplinary action against the trade union leaders who had signed the two open letters addressed to the Prime Minister in January and February 2014. The SYAPE indicates that its President, Mr Nkungi Masewu, is one of the targeted leaders and that he was informed of his dismissal by the order terminating the employment of managerial level administrative officials in the various ministries (Order No. 16-056 of 3 May 2016), which had been reviewed by the Council of Ministers. The reason for the dismissal was reported to be the use in the letters of defamatory language concerning the Minister of the Public Service.

The Committee’s conclusions

1. 340. The Committee regrets that, despite the time that has elapsed since the presentation of the complaint, the recommendations made in November 2015 and a meeting with a Government delegation in June 2016, the Government has to date not provided any reply to or observations on the complainant organizations’ allegations or the Committee’s recommendations, even though it has been requested to do so several times, including through an urgent appeal. In view of its continuing failure to respond to complaints, the Committee invites the Government, by virtue of its authority as set out in paragraph 69 of the procedures for the examination of complaints alleging violations of freedom of association, to come before the Committee at its next session in March 2017 so that it may obtain detailed information on the steps taken by the Government in relation to the pending cases.
2. 341. Under these circumstances, and in accordance with the applicable procedural rules [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee finds itself obliged to present a new report on the substance of the case without being able to take account of the information which it had hoped to receive from the Government.
3. 342. The Committee once again reminds the Government that the purpose of the whole procedure instituted by the International Labour Organization for the examination of allegations of violations of freedom of association is to promote respect for this freedom in law and in fact. The Committee is confident that, while the procedure protects governments against unreasonable accusations, they must recognize the importance of formulating, for objective examination, detailed replies concerning the allegations brought against them [see First Report of the Committee, para. 31].
4. 343. The Committee notes that this case, presented by sixteen public administration trade unions, concerns the interference, with impunity, of the Government as employer, in trade union activities, particularly intimidation of, and disciplinary measures against trade union officials, and the adoption of contentious regulations concerning the organization of trade union elections in the public administration aimed at the establishment of an inter-union association under the control of the Government as its sole representative.
5. 344. The Committee noted with concern that, in a communication dated 24 May 2016, the complainant organizations refer to reprisals against trade union leaders and members following the adoption of the Committee’s previous recommendations in November 2015. These include the dismissal of Mr Nkungi Masewu, President of SYAPE, and Mr Embusa Endole, President of the Espoir Union, as well as disciplinary action against Mr Gongwaka, Mr Kaleba and Mr Kalambay, all trade union members. The Committee firmly recalls that trade union leaders should not be subject to retaliatory measures, and in particular arrest and detention, for having exercised their rights which derive from the ratification of ILO instruments on freedom of association, in this case for having lodged a complaint with the Committee on Freedom of Association [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 74]. The Committee urges the Government to provide detailed information without delay on the reasons for and the status of the dismissals and disciplinary action against the aforementioned trade union leaders and members.
6. 345. In addition, noting with concern the allegations relating to consultations being undertaken between the administration and the INAP alone, regarding holding future elections in those bodies that had not held elections in 2013, the Committee recalls that the development of harmonious industrial relations in the public sector requires respect for the principles of non-interference, the recognition of the most representative organizations and autonomy of the parties to collective bargaining. Therefore, the Committee must express its concern at the latest allegations reporting that the situation has remained unchanged since its previous recommendations. Such a situation is not conducive to peaceful industrial relations. As a result, the Committee must once again urge the Government to undertake consultations with all the relevant representative workers’ organizations without delay, including the National Inter-union Body for the Public Sector (INSP) and the SIAP, on ways of representing workers’ interests in collective bargaining in the public administration. The Committee requests the Government to keep it informed in this regard.
7. 346. The Committee also notes with concern the recent allegations that trade union leaders in the public service have been subjected to disciplinary measures, including dismissal, for having signed two open letters addressed to the Prime Minister in January and February 2014. The President of the SYAPE, Mr NKungi Masewu, is reported to have been informed of his dismissal by the order terminating the employment of managerial level administrative officials in the various ministries (Order No. 16-056 of 3 May 2016), which had been reviewed by the Council of Ministers. The reason for the dismissal was reported to be the use in the two letters of defamatory language concerning the Minister of the Public Service. The Committee urges the Government to provide detailed information on this subject without delay, including on the reasons given to justify the termination of the President of the SYAPE.
8. 347. Finally, deeply regretting the Government’s lack of response, the Committee finds itself obliged to refer the Government to its conclusions from its last examination of the case [see 376th Report, paras 943–955] and to recall all of its previous recommendations.

The Committee’s recommendations

1. 348. In the light of its foregoing interim 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 recommendations made in November 2015 and a meeting with a Government delegation in June 2016, the Government has to date not provided any reply to or observations on the complainant organizations’ allegations or the Committee’s recommendations, even though it has been requested to do so several times, including through an urgent appeal. In view of its continuing failure to respond to complaints, the Committee invites the Government, by virtue of its authority as set out in paragraph 69 of the Procedures for the examination of complaints alleging violations of freedom of association, to come before the Committee at its next session in March 2017 so that it may obtain detailed information on the steps taken by the Government in relation to the pending cases.
   • (b) The Committee urges the Government to take without delay the necessary steps to review the contested 2013 decrees of the Ministry of Public Service in consultation with the relevant workers’ organizations. The Committee requests the Government to keep it informed in this regard.
   • (c) The Committee must urge the Government once again to undertake, without delay, consultations with all the representative workers’ organizations concerned, including the National Inter-union Body for the Public Sector (INSP) and the Independent Trade Unions of the Public Administration (SIAP), on ways of representing workers’ interests in collective bargaining in the public administration. The Committee requests the Government to keep it informed in this regard.
   • (d) The Committee requests the Government to provide the founding document of the INAP and the handover document between the former inter-union association INSP and the INAP and to report its observations on the matter.
   • (e) The Committee expects the Government to issue immediate instructions so that trade union members who are exercising their rightful trade union duties in public administration cannot be subjected to prejudice in the workplace and so that those responsible for these acts are punished. Furthermore, the Committee urges the Government to conduct investigations on the aforementioned disciplinary action cases against trade union leaders in order to determine if they were punished for lawfully exercising their trade union activities and, if appropriate, to award compensation that sufficiently discourages further disciplinary action.
   • (f) Noting that Mr Muhimanyi and Mr Endole Yalele filed a complaint before the appeals court for the violation of the legal time limit for concluding a disciplinary case, the Committee urges the Government to keep it informed of the result of this complaint.
   • (g) The Committee urges the Government to conduct without delay an investigation into the circumstances behind the arrest and detention of trade union leaders in July 2013 and November 2014 and to keep it informed of the findings and follow-up action.
   • (h) The Committee urges the Government to keep it informed of the status of the complaint filed by Mr Modeste Kayombo-Rashidi with the Kinshasa/Gombe prosecution authorities against Mr Constant Lueteta, INAP Secretary, for having made death threats.
   • (i) The Committee urges the Government to inform it of the follow-up given to the administrative and judicial appeals brought by the complainants.
   • (j) Firmly recalling that trade union leaders should not be subject to retaliatory measures, in particular arrest and detention, for having exercised their rights which derive from the ratification of ILO instruments on freedom of association, in this case for having lodged a complaint with the Committee on Freedom of Association, the Committee urges the Government to provide detailed information without delay on the reasons for and the status of the dismissals and disciplinary action against the following trade union leaders and members: Mr Nkungi Masewu, President of SYAPE; Mr Embusa Endole, President of the Espoir Union; Mr Gongwaka, trade union leader; Mr Kaleba, President of the CCT/Finance union committee; and Mr Kalambay, coordinator of COSSA.
   • (k) The Committee urges the Government to provide without delay detailed information in response to the allegations that trade union leaders in the public service have been subjected to disciplinary measures, including dismissal, for having signed two open letters addressed to the Prime Minister in January and February 2014, and particularly on the reasons given to justify the termination in May 2016 of the President of the SYAPE, Mr NKungi Masewa.