Interim Report - Report No 384, March 2018

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. 233. The Committee last examined this case, brought by several public service unions, during its meeting in October 2016 and on that occasion presented an interim report to the Governing Body [see 380th Report, approved by the Governing Body at its 328th Session (November 2016), paras 332–348].
2. 234. The Congolese Labour Confederation (CCT), the Union of State Officials and Civil Servants (SYAPE) and the Independent Trade Unions of the Public Administration (SIAP) provided additional information in communications dated 3 May 2017, 29 May 2017 and 3 October 2017, respectively.
3. 235. In the absence of a reply from the Government, the Committee was obliged to postpone its examination of the case on two occasions. At its meeting in October 2017 [see 383rd Report, para. 6], 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. To date, the Government has not sent any information.
4. 236. 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. 237. During its previous examination of the case in November 2016, the Committee made the following recommendations [see 380th Report, para. 348]:
   • (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 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 must urge the Government once again to undertake, without delay, consultations with all the relevant 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 terms of 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 [National Public Administration Inter-union Association] (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 Masewu.

B. Additional information from the complainants

1. 238. In a communication dated 3 May 2017, the General Secretary of the CCT, Mr Modeste Kayombo-Rashidi, spokesperson for the Independent Trade Unions of the Public Administration (SIAP), reported that the INSP and the SIAP had issued a joint statement on 9 April 2017 to the effect that the term of office of the INAP, of which both the composition and the action are contested, had in any case come to an end in October 2016, and that, consequently, the Government should hold genuine trade union elections with a view to establishing the legitimacy and lawfulness of trade union activities and avoiding any dispute.
2. 239. In a communication dated 29 May 2017, the SYAPE indicated that its President, Mr Nkungi Masewu, had been dismissed, not only in a context of anti-trade union discrimination, but also in violation of the legislation in force, and that, according to the correspondence sent on 26 April 2016 to the Ministry of Public Service by the Special Adviser to the Head of State on good governance and combating corruption, money laundering and terrorist financing, Mr Masewu should have been reinstated as in his post.
3. 240. In additional information brought to the Committee’s attention on 3 October 2017, the SIAP denounced the intimidation and threats made against two trade union leaders who were members of the SIAP, Mr Mulangu Ntumba (General Secretary of the SAFE union) and Mr Tshimanga Musungay (General Secretary of the Trade Union Renewal of the Congo (REYSCO)), because of the General Assembly of State officials and civil servants of several ministries held on 21 July 2017 on their initiative.

C. The Committee’s conclusions

1. 241. The Committee deplores the total lack of cooperation on the part of the Government in the proceedings, in particular the fact that it has communicated none of the information requested on several occasions, including through urgent appeals. Despite the time that has elapsed since the presentation of the complaint, the recommendations made by the Committee in November 2015 and November 2016, a meeting between members of the Committee and a Government delegation in June 2016, and an invitation to come before the Committee, pursuant to paragraph 69 of the procedures for the examination of complaints alleging violations of freedom of association, so that the Committee may obtain complete information, the Government has to date not provided any reply to the complainant organizations’ allegations or the Committee’s recommendations.
2. 242. 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. 243. The Committee reminds the Government, once again, 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]. The Committee urges the Government to be more cooperative in the future, especially since it recently benefited (in November 2017) from technical assistance from the Office and the International Training Centre in Turin on international labour standards, with a focus on the fundamental Conventions and the supervisory mechanisms.
4. 244. The Committee notes that this case, presented by several public administration trade unions, concerns the interference, with impunity, of the Government as the 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 (INAP) under the control of the Government as its sole representative.
5. 245. The Committee notes in particular that the complainant organizations referred to reprisals against trade union leaders and members following the adoption of the Committee’s recommendations in November 2015. These allegations include the dismissal of Mr Nkungi Masewu, President of SYAPE, and Mr Embusa Endole, President of ESPOIR, as well as disciplinary action against Mr Gongwaka, Mr Kaleba and Mr Kalambay, all trade union members. The Committee deeply regrets that fresh measures of reprisal have been reported since it last examined the case, in October 2016. Indeed, the Committee notes with concern the recent allegations of harassment of the trade union group SIAP, according to which union leaders who are members of the group, namely Mr Mulangu Ntumba (General Secretary of SAFE) and Mr Tshimanga Musungay (General Secretary of RESYCO) have been subject to intimidation and threats of dismissal in connection with their legitimate trade union activities. The Committee once again 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, including for having lodged a complaint with the Committee on Freedom of Association. Underlining the importance of ensuring that trade union rights can be exercised in normal conditions with respect for basic human rights and in a climate free of pressure, fear and threats of any kind, 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. 246. As concerns the situation of the SYAPE President, Mr Nkungi Masewu, the Committee recalls that he was reportedly dismissed for having made defamatory remarks about the Minister of the Public Service. The Committee takes note of the information provided by the SYAPE in a communication dated 29 May 2017, in particular the correspondence addressed to the Ministry of Public Service by the Special Adviser to the Head of State on good governance and combating corruption, money laundering and terrorist financing, according to which Mr Masewu should have been reinstated as in his post, and urges the Government to provide, without delay, detailed information on the reasons for his dismissal.
7. 247. The Committee notes the communication dated 3 May 2017 referring to a joint INSP–SIAP statement of 9 April 2017, according to which the term of office of the INAP had ended in October 2016, and calling on the Government to hold genuine trade union elections with a view to establishing the legitimacy and lawfulness of trade union activities and avoiding any dispute. In this respect, the Committee cannot but recall 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. Referring to its previous conclusions concerning a review of the contested 2013 decrees limiting union activities, the Committee again draws the Government’s attention to the need to review the regulatory provisions concerned and to undertake consultations with all the relevant representative workers’ organizations without delay, in particular the INSP and the SIAP, on ways of representing workers’ interests.
8. 248. Deploring the Government’s lack of response, the Committee finds itself obliged to refer the Government to all the conclusions from its last examination of the case [see 380th Report, paras 332–348] and to its previous recommendations.

The Committee’s recommendations

1. 249. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee deplores the total lack of cooperation on the part of the Government in the proceedings, in particular the fact that it has communicated none of the information requested on several occasions, including through urgent appeals. Despite the time that has elapsed since the presentation of the complaint, the recommendations made by the Committee in November 2015 and November 2016, a meeting between members of the Committee and a Government delegation in June 2016, and an invitation to come before the Committee pursuant to paragraph 69 of the procedures for the examination of complaints alleging violations of freedom of association, the Government has to date not provided any reply to the complainant organizations’ allegations or the Committee’s recommendations. The Committee urges the Government to be more cooperative in the future, especially since it recently benefited from technical assistance from the Office and the International Training Centre in Turin.
   • (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 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.
   • (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, and in particular arrest and detention, for having exercised their rights which derive from the ratification of ILO instruments on freedom of association, including for having lodged a complaint with the Committee on Freedom of Association, and underlining the importance of ensuring that trade union rights can be exercised in normal conditions with respect for basic human rights and in a climate free of pressure, fear and threats of any kind, 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 ESPOIR; Mr Gongwaka, trade union leader; Mr Kaleba, President of the CCT/Finance union committee; and Mr Kalambay, coordinator of COSSA. Noting with concern that fresh allegations have been made of harassment of trade union leaders since it last examined the case, the Committee requests the Government to provide information on the situation of Mr Mulanga Ntumba, General Secretary of SAFE, and Mr Tshimanga Musungay, General Secretary of RESYCO.
   • (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, and particularly on the reasons given to justify the termination in May 2016 of the President of the SYAPE, Mr Nkungi Masewu.
   • (l) The Committee invites the Government to a meeting with representative members during the next session of the International Labour Conference (May–June 2018) in order to obtain detailed information on the measures taken in relation to this case.