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- 144. The complaint of the W.F.T.U is contained in a communication addressed directly to the I.L.O on 28 January 1961. When the complaint was communicated to the Government for its observations, by a letter dated 9 February 1961, the attention of the Government was drawn to the fact that, as matters involving personal freedom were raised in the complaint, the present case fell within the category of cases regarded by the Governing Body as urgent and in which, in accordance with the decision of the Governing Body at its 140th Session (November 1958), the special attention of the Government is to be drawn to this fact when the complaint is communicated to it and the Government is to be specialty requested, on behalf of the Governing Body, to furnish for this reason a particularly speedy reply. The Government of the United Kingdom furnished its observations, based on information stated to have been supplied by the Government of Southern Rhodesia, in a communication dated 12 May 1961.
- 145. The complaint and the aforesaid observations furnished by the Government were examined by the Committee at its 29th Session (November 1961), when the Committee submitted to the Governing Body the conclusions and recommendations contained in paragraphs 590 to 621 of its 58th Report, which was approved by the Governing Body at its 150th Session (November 1961). With regard to certain allegations relating to the application of the Emergency Powers Bill and of the Vagrancy Act and to union rules concerning the voting rights of members, the Committee submitted its definitive recommendations to the Governing Body. The present document deals only with the outstanding allegations those relating to the detention or restriction of movements of trade union leaders, to the registration of trade unions under the Industrial Conciliation Act, 1959, and to the organising rights of agricultural workers, domestic workers and government employees-concerning which the Committee submitted an interim report to the Governing Body at its 150th Session (November 1961). In accordance with that interim report, a request for further information on certain aspects of the case was addressed to the Government. This information was furnished by the Government in a communication dated 16 April 1962.
- 146. The Government of the United Kingdom has ratified the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), and has undertaken, with the agreement of the Government of Southern Rhodesia, to apply its provisions without modification to Southern Rhodesia. The Government has also 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), but has reserved its decision regarding the application of the provisions of these Conventions to Southern Rhodesia.
A. A. The complainants' allegations
A. A. The complainants' allegations
- Allegations relating to the Detention or Restriction of Movements of Trade Union Leaders
- 147 It is alleged that, following the declaration of a state of emergency in Southern Rhodesia in February 1959, more than 30 trade union leaders were detained, with the aim of crippling the trade unions. About 20 of them are alleged still to have been in detention in January 1961, including: Mr. J. T. Maluleke, Honorary General Secretary of the Southern Rhodesia African Trades Union Congress and General Secretary of the Southern Rhodesia African Commercial Workers; Mr. K. Mhizha, Treasurer of the Southern Rhodesia African Trades Union Congress and President of the Southern Rhodesia Transport and Allied Workers' Union; and Mr. E. Sitole, Trustee of the Southern Rhodesia African T.U.C. The complainant states that they are held in Marandelles prison under the Preventive Detention Act, 1959, which was enacted after their arrest, and that they were tried by tribunals in secret, without proper facilities for defence. Other trade union leaders are alleged to be subject to restriction orders, including Mr. Musarurwa, President of the Southern Rhodesia African Commercial Workers, and Mr. R. Foya, Chairman of the Gwelo branch of the Transport and Allied Workers' Union.
- 148 The Government declared in its communication dated 12 May 1961 that the detention of the persons concerned was due entirely to their subversive activities and not to the fact that they were trade union leaders. Although the state of emergency had since terminated, the authorities still considered it necessary in the interests of public safety to detain or keep under restriction orders a number of persons, including those referred to by name in the complaint.
- 149 Detained persons appearing before the Review Tribunal were not, declared the Government, " without proper facilities for defence ", as alleged. Section 6 (6) of the Preventive Detention (Temporary Provisions) Act, 1959, provides for the legal representation of detained persons before the Tribunal. The Government stated that those who wished to be legally represented were afforded every facility for this purpose and were so represented, while in the case of persons who had inadequate funds arrangements for legal representation were made by the governmental authorities.
- 150 At its 29th Session (November 1961), the Committee observed from the Government's reply that the cases of detained persons were brought before a Review Tribunal; they had not been " tried ", as the complaint would make it appear.
- 151 In several earlier cases, in which it was alleged that trade union officers or members had been preventively detained, the Committee has expressed the view that measures of preventive detention may involve a serious interference with the exercise of trade union rights which it would seem necessary to justify by the existence of a serious emergency and which would be open to criticism unless accompanied by adequate judicial safeguards applied within a reasonable period, and that it should be the policy of every government to take care to ensure the observance of human rights and especially of the right of all detained persons to receive a fair trial at the earliest possible moment. The Committee has also expressed the view that the restriction of a person's movements to a limited area accompanied by a prohibition of entry into the area in which his trade union operates and in which he normally carries on his trade union functions is also inconsistent with the normal enjoyment of the right of association and with the exercise of the right to carry on trade union activities and functions, and should also be accompanied by adequate judicial safeguards applied within a reasonable period and, especially, by observance of the right of those concerned to receive a fair trial at the earliest possible moment.
- 152 In the past, moreover, where allegations that trade union leaders or workers have been arrested or detained for trade union activities or that their arrest or detention has restricted the exercise of trade union rights have been met by governments with statements that the arrests or detentions were made for subversive activities, for reasons of internal security, or for common law crimes, the Committee has followed the rule that the governments concerned should be requested to submit further and as precise information as possible concerning the arrests or detentions, particularly in connection with the legal or judicial proceedings instituted and the result of such proceedings. If in certain cases the Committee has concluded that allegations relating to the arrests or detentions of trade union militants did not call for further examination, this has been after it has received information from the governments showing sufficiently precisely and with sufficient detail that the arrests or detentions were in no way occasioned by trade union activities but solely by activities outside the trade union sphere which were either prejudicial to public order or of a political nature.
- 153 At its 29th Session (November 1961), the Committee noted that, in the present case, beyond stating that the detentions were due to subversive activities and that it was still considered necessary to detain or restrict the movements of certain of the persons concerned in the interests of public safety, the Government had furnished no precise details as to the reasons for the detentions or as to any subsequent proceedings that might have been taken.
- 154 In these circumstances the Committee decided to request the Government to state how many of the 20 trade union leaders referred to by the complainants were still in detention or subject to restriction orders, to furnish more detailed information as to the reasons for which measures were taken against them, and, having regard to the principles set forth in paragraphs 151 and 152 above, as to when it was intended to bring to trial those of the persons concerned against whom proceedings might not yet have been taken. Having regard to the decision of the Governing Body at its 140th Session referred to in paragraph 144 above, the Committee requested the Government to be good enough to furnish the above information as a matter of urgency.
- 155 In its communication dated 16 April 1962 the Government of the United Kingdom furnishes further information in this connection supplied to it by the Government of Southern Rhodesia.
- 156 With reference to the allegations that in February 1959 more than 30 trade union leaders were detained, with the aim of crippling the trade unions, the Government, observing that the complainants did not produce evidence to support this contention, confirms that those detained did include a number of trade union leaders, but repeats its earlier statement that their detention was due entirely to their subversive activities and not to the fact that they were trade union leaders, and conveys to the Committee the wish of the Government of Southern Rhodesia that the Committee will " appreciate that there is a clear distinction between detaining trade union leaders or workers for trade union activities and detaining persons who happen to be trade unionists for subversive activities outside the scope of trade unionism ".
- 157 Having done so, the Government explains that the Southern Rhodesia African National Congress, a political organisation, was declared to be an unlawful organisation under the Unlawful Organisations Act, 1959. The consequence was that, pursuant to section 3 (2) of the Preventive Detention (Temporary Provisions) Act, 1959, persons concerned in the activities of the organisation were liable to be detained. The Preventive Detention (Temporary Provisions) Act, 1959, does not provide for the trial of detained or restricted persons but provides for inquiry by the tribunal set up under the Act into the reasons for detention and for the periodical review of detention and restriction orders. These conditions, declares the Government, have been complied with.
- 158 The Government names 11 persons who are still subject to restriction orders and states that no persons are now under detention. The list of names includes only two of the persons named in the complaint: Mr. E. Sitole, Trustee of the Southern Rhodesia African T.U.C, and Mr. R. Foya, Chairman of the Gwelo branch of the Transport and Allied Workers' Union. Among the 11 in question, declares the Government, only these two are trade union leaders, and they were detained and subsequently subjected to restriction orders not on that ground but solely because they were office-bearers of the banned Southern Rhodesia African National Congress.
- 159 The Committee fully appreciates that there is a clear distinction between detaining trade union leaders or workers for trade union activities and detaining persons who happen to be trade unionists on the ground of subversive activities outside the trade union sphere. The Committee has pointed out in the past that where persons have been sentenced on grounds having no relation to trade union rights the matter would fall outside its competence, but has emphasised that the question as to whether such a matter is one relating to a criminal offence or to the exercise of trade union rights is not one which can be determined unilaterally by the government concerned. That is one of the reasons why the Committee, pointing out that in all cases in which trade union leaders are preventively detained these measures may involve a serious interference with the exercise of trade union rights, has, as indicated in paragraph 151 above, emphasised the right of all detained persons to receive a fair trial at the earliest possible moment and has also, as indicated in paragraph 152 above, requested governments which have contended that arrests or detentions were made for subversive activities to furnish information as to the nature and result of the legal or judicial proceedings instituted. Indeed, it is only on the basis of a trial attended by the guarantees of due process of law that the Committee can appreciate whether such a contention is justified or not. In the present case, the Government has furnished its reasons-of a political nature for the restriction of the movements of the trade union leaders concerned. It would appear, however, that even though the motive for the detention and subsequent restriction of the movements of the trade unionists concerned may have lain in their political activities, they have never been brought to trial on any charge and that nothing in the latest reply from the Government indicates any intention that specific charges will be brought.
- 160 In these circumstances the Committee recommends that the Governing Body:
- (a) take note of the Government's statement that two of the trade union leaders referred to by the complainants are still subject to restriction orders;
- (b) draw the attention of the Government to the importance which the Governing Body has always attached to the right of all detained persons to receive a fair trial at the earliest possible moment;
- (c) draw the attention of the Government to its view that the restriction of a trade union officer's movements is inconsistent with the normal enjoyment of the right of association and with the exercise of the right to carry on trade union activities and functions and should, like actual detention, be accompanied by adequate judicial safeguards applied within a reasonable period;
- (d) request the Government, if it is not intended to afford a fair trial at an early date to the trade union officers who are subject to restriction orders, to indicate what measures are being taken or are envisaged to lift the restrictions so that such trade union officers may resume their trade union functions in full freedom.
- Allegations regarding Registration of Trade Unions under the Industrial Conciliation Act, 1959
- 161 It is alleged that trade union rights are severely restricted by the Industrial Conciliation Act, 19593, and, in particular, that the registrar, on his own judgment, can refuse to register a union if he is not satisfied that the union " is a responsible body and reasonably capable of taking part in the negotiation of matters of mutual interest between employer and employee ".
- 162 The Government, in its reply dated 12 May 1961, declared that the Act is completely non-racial and has extended to Africans all the benefits of statutory industrial conciliation machinery, which previously applied to non-Africans only. Against refusal of registration of a union by the registrar, appeals lie in most instances to the courts-in one instance, as will be seen from the citation below, to the Minister. The Government considered that the safeguards afforded by section 37 of the Act, which it cited in full, " are appropriate to circumstances in Southern Rhodesia, where the development of the trade unions is at a relatively early stage ".
- 163 Section 37 of the Industrial Conciliation Act, 1959, cited in full by the Government in its reply, reads as follows:
- 37 (1) The registrar shall not register an applicant union or organisation unless he is satisfied that:
- (a) the requirements of section 36 have been complied with;
- (b) the Constitution is consistent with this Act and does not contain provisions which are contrary to provisions of any law or are calculated to hinder the attainment of the objects of any law or are not in the interests of the effective functioning of the trade union or employers' organisation concerned or are contrary to the public interest;
- (c) the union or organisation is a responsible body and reasonably capable of taking part in the negotiations of matters of mutual interest between employer and employee in accordance with the provisions of this Act;
- (d) the union or organisation has not been formed for the purpose of evading the provisions of any law; and
- (e) the union or organisation does not exist or was not formed for the purpose of furthering the interests of its members on a basis of race, colour or religion.
- (2) If, in considering the Constitution of a trade union or employers' organisation or any alteration thereof, the registrar is unable to decide whether any provision is, or is not, in accordance with law or is, or is not, contrary to the public interest, or is of the opinion that any provision is unreasonable in relation to the members or the public, he shall refuse to approve of such provision and shall approve only of such provisions as he is satisfied are in accordance with law, are not contrary to the public interest and are reasonable in relation to the members or the public, as the case may be.
- (3) Any trade union or employers' organisation aggrieved by any decision of the registrar under this section may:
- (a) if the decision is based on the ground of the public interest or reasonableness in relation to members of the public, appeal against that decision to the Minister, whose decision shall be final;
- (b) if the decision is based on any other ground, appeal against that decision to the industrial court.
- 164 In the first place, as the Committee observed at its 29th Session (November 1961), it would appear that a registrar shall not register a union unless he is satisfied that its Constitution contains no provisions contrary to the public interest (section 37 (1) (b)), and that, in considering such Constitution, he shall refuse to accept any provision when he is unable to decide whether it is contrary to the public interest or not or when he is of opinion that it is unreasonable in relation to the public (section 37 (2)); an appeal lies against such decisions only to the Minister, whose decision shall be final (section 37 (3) (a)).
- 165 In this connection, the I.L.O. Committee of Experts on the Application of Conventions and Recommendations has suggested that appeals against decisions of registrars should lie to the courts, a fact noted by the Committee on Freedom of Association in Case No. 194 relating to Singapore, when it recommended the Governing Body to draw the attention of the Government of the United Kingdom to the same principle.
- 166 The Committee observed further that it would appear from section 37 of the Act that the registrar shall not register a union unless he is satisfied, inter alia, that the other requirements contained in section 37 (1) (b) and (c) are fulfilled. The question as to whether these particular requirements are fulfilled is one upon which the registrar has to form his own judgment, although here an appeal lies against his decisions to the courts. In such cases, as the Committee of Experts has pointed out, " the existence of a procedure of appeal to the courts does not appear to be a sufficient guarantee; in effect this does not alter the nature of the powers conferred on the authorities responsible for effecting registration, and the judges hearing such an appeal... would only be able to ensure that the legislation had been correctly applied ".
- 167 In these circumstances, while drawing the Government's attention to the importance of the principle of an appeal to the courts referred to in paragraph 165 above, the Committee decided, at its 29th Session (November 1961), to request the Government to state by what criteria, if any, the registrar is bound or guided, as the case may be, in forming his judgment of the different matters concerning which he is required to satisfy himself under section 37 of the Act.
- 168 In its communication dated 16 April 1962 the Government states that, in forming his judgment of the different matters concerning which he is required to satisfy himself under section 37 of the Industrial Conciliation Act, the industrial registrar is guided by " the Declaration of Rights in the Southern Rhodesia Constitution, the I.L.O. Declaration of Philadelphia and the guarantees and standards evolved by and characteristic of the British trade union movement ".
- 169 The Committee considers that, while the above-mentioned instruments and standards give effect to a number of generally accepted principles, they do not afford to the trade unions safeguards in connection with registration which can be compared with those which are normally afforded by properly defined statutory criteria.
- 170 In these circumstances, while appreciating that the trade union movement in Southern Rhodesia is still at an early stage of development, the Committee, also bearing in mind the undertaking to apply without modification to Southern Rhodesia the provisions of the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), recommends the Governing Body:
- (a) to draw the attention of the Government to the importance which it attaches to the principle that appeals against the refusal or cancellation of registration of organisations by trade union registrars should in all cases lie to the courts;
- (b) to draw the attention of the Government to the desirability of defining clearly in the legislation the precise conditions which trade unions must fulfil in order to be entitled to registration and of prescribing specific statutory criteria for the purpose of deciding whether such conditions are fulfilled or not;
- (c) to suggest to the Government that it may care to examine further the provisions of the Industrial Conciliation Act, 1959, with a view to deciding what amendments might be desirable in the light of the foregoing considerations;
- (d) to request the Government to be good enough to keep the Governing Body informed as to further developments in this connection.
- Allegations relating to the Organising Rights of Agricultural Workers, Domestic Workers and Government Employees
- 171 It is alleged that agricultural workers, domestic workers and government employees cannot be members of trade unions.
- 172 The Government stated in its communication dated 12 May 1961 that, while the Industrial Conciliation Act does not provide for unions of agricultural workers or domestic workers, such workers are not debarred or prohibited by law from forming unions. Established civil servants can form their own employees' association, which is recognised by the Government for negotiating purposes; they cannot form unions which register under the Industrial Conciliation Act. Unestablished civil servants can belong to unions registered under the Act.
- 173 At its meeting in March 1961 the I.L.O. Committee of Experts on the Application of Conventions and Recommendations made an observation, in respect to these matters, in connection with the application of the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), in Southern Rhodesia. The Committee of Experts regretted to note that the Act, by virtue of section 4 (2) (a) thereof, does not apply to " persons in respect of their employment in farming operations (including forestry) or any domestic persons in private households " and stated that it would be glad if the Government would indicate the measures which it is proposed to take to guarantee the right of these workers " to associate for all lawful purposes ", as required by the Convention, which applies to all employed persons.
- 174 The Committee, therefore, at its 29th Session (November 1961), recommended the Governing Body to decide, having regard to the observation of the I.L.O. Committee of Experts cited in the preceding paragraph and to the fact that considerable safeguards and protection are offered to unions registered under the Industrial Conciliation Act, 1959, as compared with those which cannot so register, to request the Government to state what measures it intended to take to ensure the guarantee and protection of the right to organise of agricultural and domestic workers in the same way as industrial workers, whose organisations can register under the Act.
- 175 In its communication dated 16 April 1962 the Government of the United Kingdom declares that it has been informed by the Government of Southern Rhodesia that this matter is still under consideration.
- 176 In these circumstances the Committee recommends the Governing Body to take note of this statement and to request the Government to be good enough to keep the Governing Body informed as to further developments in this connection.
The Committee's recommendations
The Committee's recommendations
- 177. In all the circumstances the Committee recommends the Governing Body:
- (a) to decide, with regard to the allegations relating to the detention or restriction of movements of trade union leaders:
- (i) to take note of the Government's statement that two of the trade union leaders referred to by the complainants are still subject to restriction orders;
- (ii) to draw the attention of the Government to the importance which the Governing Body has always attached to the right of all detained persons to receive a fair trial at the earliest possible moment;
- (iii) to draw the attention of the Government to its view that the restriction of a trade union officer's movements is inconsistent with the normal enjoyment of the right of association and with the exercise of the right to carry on trade union activities and functions and should, like actual detention, be accompanied by adequate judicial safeguards offered within a reasonable period;
- (iv) to request the Government, if it is not intended to afford a fair trial at an early date to the trade union officers who are subject to restriction orders, to indicate what measures are being taken or are envisaged to lift the restrictions so that such trade union officers may resume their trade union functions in full freedom;
- (b) to decide, with regard to the allegations relating to the registration of trade unions under the Industrial Conciliation Act, 1959:
- (i) to draw the attention of the Government to the importance which it attaches to the principle that appeals against the refusal or cancellation of registration of organisations by trade union registrars should in all cases lie to the courts;
- (ii) to draw the attention of the Government to the desirability of defining clearly in the legislation the precise conditions which trade unions must fulfil in order to be entitled to registration and of prescribing specific statutory criteria for the purpose of deciding whether such conditions are fulfilled or not;
- (iii) to suggest to the Government that it may care to examine further the provisions of the Industrial Conciliation Act, 1959, with a view to deciding what amendments might be desirable in the light of the foregoing considerations;
- (iv) to request the Government to be good enough to keep the Governing Body informed as to further developments in this connection;
- (c) to take note of the statement of the Government that the question of possible measures to ensure the guarantee and protection of the right to organise of agricultural and domestic workers in the same way as that of industrial workers, whose organisations can register under the Industrial Conciliation Act, is still under consideration, and to request the Government to be good enough to keep the Governing Body informed as to further developments in this connection.
