Informe provisional - Informe núm. 254, Marzo 1988

Caso núm. 1406 (Zambia) - Fecha de presentación de la queja:: 15-MAY-87 - Cerrado

1. 450. In a communication dated 15 May 1987, the Zambia Congress of Trade Unions (ZCTU) presented a complaint of violations of trade union rights against the Government of Zambia. It presented further allegations in communications of 24 September and 19 October 1987. The Government supplied its observations in communications dated 26 October and 9 November 1987 and 5 January 1988.
2. 451. Zambia has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98); it has ratified the Workers' Representatives Convention, 1971 (No. 135).

A. The complainant's allegations

1. 452. The ZCTU, in its communication of 15 May 1987, firstly alleges that the Government has, since a 1983 decision communicated to the complainant in March 1984, banned labour leaders from addressing workers during May Day celebrations without providing substantial reasons. It claims that this constitutes interference in trade union activities contrary to Convention No. 87 and also violates Zambia's constitutional provisions guaranteeing freedom of assembly and association. It explains that, during May Day festivities prior to the ban, labour leaders had occupied a significant place on the platform giving speeches confined to socio-economic subjects. The Government, however, had accused them of using the occasion to insult the country's leadership.
2. 453. According to the ZCTU, in 1986 it proposed a review of the way Labour Day was celebrated, but was informed by the authorities it contacted (the Minister of Labour and the Secretary-General of the ruling United National Independence Party) that it was not for them to meet the Congress or make a decision. Faced with this inaction, the Congress General Council decided in February 1987 that if the status quo were to be maintained, the labour movement would refrain from participating in the May Day celebrations. Both the Party Secretary-General and the President protested this position taken by the Congress; labour leaders were accused in the press of receiving financial assistance for the purpose of fomenting discontent among the people. The President even threatened to invoke his constitutional powers to dissolve the Congress, states the ZCTU.
3. 454. Secondly, the complainant alleges that, in practice, strikers and strike leaders can be dismissed in violation of the protection enshrined in Convention No. 135, ratified by Zambia. The ZCTU points out that such a possibility also infringes the Zambian Industrial Relations Act which guarantees workers the right, at any appropriate time, to take part in union activities including strikes. From newspaper clippings attached to the complaint, it appears that, after a series of allegedly "illegal" strikes in March/April 1987, employers were empowered to fire strikers and to have them reapply for employment.
4. 455. Thirdly, the complainant alleges that the Government has interfered in trade union affairs by authorising the ruling political party to organise training of labour leaders overseas without the knowledge or approval of the ZCTU or its affiliates. It encloses a copy of an administrative circular sent by a district council to all trade unions in its area requesting the names of all trade union leaders so as "to enable the Party to consider labour leaders for courses abroad", as well as a copy of the Congress' objection to this approach. It also supplies a copy of the reply sent on 12 January 1987 by the Secretary-General of the United National Independence Party to the ZCTU in which he states:
   • I hope that you are not objecting to the Party selecting candidates to go for courses either internally or abroad if some of these candidates are members of the Trade Union Movement. As you are aware, in the past we have recruited people for Home Guard, National Service or Political Education training without necessarily consulting everyone involved. The same is also true for those who we have selected to go for courses outside the Republic of Zambia. The Party would be the last organisation to undermine a Trade Union Movement. The Party values the existence of the Trade Union greatly. Past history confirms this. I hope that this clears any fears that might have arisen.
5. 456. In this connection the ZCTU stresses its commitment to worker education through the resources and agencies at its disposal. It believes, however, that it is entitled to know the nature of the training for which its members are chosen and, above all, to be consulted whenever the Party proposes to train union leaders abroad or locally.
6. 457. In a telex dated 24 September 1987, the ZCTU complains that upon their return from the 73rd Session of the International Labour Conference in June 1987, the passports of the ZCTU Secretary-General, Mr. N.L. Zimba (deputy Workers' member of the ILO Governing Body), and Chairman, Mr. F.J. Chiluba, were confiscated by the Government without any reasons being given. It requests the return of the passports as a matter of urgency. On 19 October 1987, the Secretary-General of the ZCTU informed the ILO that both his and Mr. Chiluba's trade union activities - particularly overseas visits - were still severely curtailed by the confiscation of their passports. Mr. Zimba feared that, despite the ILO invitation to take part as deputy member in the 238th Session (November 1987) of the Governing Body, he would be prevented from leaving Zambia.

B. The Government's reply

1. 458. In its communication of 26 October 1987, the Government states that the confiscation of the passports of Messrs. Chiluba and Zimba was not done out of malice; there were good reasons why the authorities took the passports when these two persons returned from the International Labour Conference. Foremost, states the Government, it must be appreciated that both persons are Zambian citizens and that the Government has discretionary powers to issue or withdraw passports from its nationals depending on certain circumstances. The Government states that it also reserves the right to handle its citizens in its own way without undue interference. It adds that both men are free to appeal to the authorities for the reissuing of passports to them.
2. 459. On 9 November 1987 the Government responded to an ILO cable of 29 October which reflected the grave concern of participants in the Fourteenth International Conference of Labour Statisticians with regard to the absence of Mr. F.J. Chiluba, who had been named by the Governing Body as a Worker representative for that Conference (which lasted from 28 October to 6 November). The Zambian Government stated that it was unable to give assurance of the participation of Messrs. Chiluba and Zimba in the Fourteenth International Conference of Labour Statisticians and the Governing Body session, respectively. It emphasised that the confiscation of passports from these two persons had nothing to do with their trade union activities but with security; the matter was not negotiable. It stated that the policy of the Republic of Zambia was to make the trade union movement strong and effective, but it had to be recognised that the trade union movement in Zambia was not only made up of Messrs. Chiluba and Zimba. It added that the participation of a Workers' representative from Zambia in the Fourteenth International Conference of Labour Statisticians would have been possible if there had not been insistence that it should be Mr. Chiluba. According to the Government, there were many other trade unionists in Zambia who would have benefited from attendance at the Fourteenth International Conference of Labour Statisticians.
3. 460. In its letter of 5 January 1988, the Government points out that it has not ratified Conventions Nos. 87 and 98, but adds that by its membership of the ILO the Republic of Zambia does respect some principles of freedom of association and the right to organise. It adds that trade unions in Zambia are established by virtue of article 23 of the Constitution and the provisions of the Industrial Relations Act (IRA). Section 4 of the IRA grants an employee the right to take part in the formation of a trade union, to participate in the union's activities and to election or appointment to trade union office. Penalties through court action exist for contravention of this section. The Government stresses that, in practice, workers in Zambia do enjoy the rights bestowed upon them by section 4 of the IRA. It considers that the allegations made in this complaint are without any basis at all.
4. 461. With regard to Labour Day, the Government explains that it is celebrated on 1 May and has been declared a national public holiday; the day has been set aside to honour all workers, not only wage-earning workers or unionised workers, for their contribution to the development of the country. The organisation of the 1 May celebrations is jointly undertaken by the labour movement, employers' organisations and government representatives. It is, therefore, incorrect to say that the labour movement does not take part in the organisation of the occasion.
5. 462. According to the Government, May Day in Zambia is characterised by march pasts and rallies where awards are given to deserving workers and usually a high-ranking officer officiates at these functions. However, in 1985, the Government banned trade unionists from addressing May Day rallies because experience had shown that the occasion was being used by trade unionists to make highly inflammatory speeches which tended to fan discord and disunity and therefore threatened the security of the nation; even political leaders are not allowed to make speeches, except His Excellency the President who makes a national address on the eve of the May Day celebrations. The Government states that this should not be seen to mean muzzling of the labour movement, as the labour movement has ample opportunity to air its views in many Party and government institutions where it is adequately represented.
6. 463. As regards the alleged violation of Convention No. 135 through the possibility of dismissal of striking workers and their leaders, the Government states that Convention No. 135, ratified by Zambia, does not in any way specifically provide for the right to strike. Zambia, however, does recognise strike action as a weapon by workers in promoting their interests provided that it is done within the provisions of the law. The Government indicates that section 116 of the IRA and trade union constitutions regulate the staging of strikes; a strike ballot has to be conducted prior to the strike and, if this is not followed, the strikers are in breach of their contracts of employment and the employer is within his rights to consider the contracts as having been terminated. The Government adds that section 117 of the IRA prohibits workers in essential services from going on strike on pain of criminal prosecution. It stresses that, to date, not a single worker has been prosecuted. In order to prevent wildcat strikes, the Government is obliged to issue warnings to workers of the repercussions should they stage illegal and unconstitutional strikes. The ZCTU allegation regarding dismissal of strikers is therefore, states the Government, misleading.
7. 464. With regard to the training of labour leaders abroad, the Government points out that it has the responsibility of training its nationals in all aspects of human endeavour through its institutions or through bilateral arrangements or with other countries or organisations. It is within the Government's right to select the most suitable candidate for whatever course. The intention of the Government in this particular case is to turn out well-qualified trade union leaders. According to the Government, there is no evidence to suggest that the Party and its government has ulterior motives and that the selection for trade union training without the union's involvement is a way of muzzling the labour movement and undermining its independence. The Government in fact desires this independence, since it is government policy to encourage the development of a strong trade union movement. The Government refers to the letter dated 12 January 1987 from the Secretary-General of the Party addressed to the ZCTU as proof that it is not the wish of the Party to undermine the trade union movement.
8. 465. Finally, with regard to the alleged threats by the Head of State to dissolve the ZCTU, the Government points out that the ZCTU is established under the IRA and its objectives are to represent workers' interests and participate in the socio-economic development of the country. It states, however, that if the ZCTU loses direction there is no reason why it should not be corrected. The Government adds that this refers to its leadership.

C. The Committee's conclusions

1. 466. The Committee notes that this case involves four distinct sets of allegations concerning the free exercise of trade union rights by the complainant confederation:
   • a) a ban since 1985 on labour leaders addressing workers on May Day;
     • b the possibility of dismissing striking workers in violation of Convention No. 135;
   • c) interference by the ruling political party in the training of unionists; and
   • d) the confiscation by the authorities of the passports of the ZCTU Chairman, Mr. F.J. Chiluba, and Secretary-General, Mr. N.L. Zimba.
2. 467. As regards the participation of labour leaders in May Day celebrations which continues to be banned despite attempts to change the arrangements for 1987, the Committee notes the Government's position according to which trade unionists have abused the occasion and therefore threatened national security. The Committee observes, however, that no evidence has been presented showing excesses in language or of a political content in the past speeches of trade unionists on May Day. The Committee would accordingly draw the Government's attention to the recognised principles of freedom of association that the right to organise and take part in public meetings and processions, particularly on the occasion of May Day, constitutes an important aspect of trade union rights (See 233rd Report, Case No. 1054 (Morocco), para. 333.)and that the full exercise of trade union rights calls for a free flow of information, opinions and ideas which involves workers and their organisations enjoying freedom of opinion and expression at their meetings and in the course of other trade union activities. (See 217th Report, Case No. 963 (Grenada), para. 538.)It expresses the hope that the Government will take these principles into consideration for the celebrations of May Day 1988.
3. 468. As regards the possibility of dismissing striking workers, the Committee notes from the newspaper clippings supplied by the ZCTU that certain employers were urged to do so during industrial action in the copperbelt in 1987; there were thus proven instances of threats of anti-union action. The Committee would accordingly recall, in general, that the use of extremely serious measures, such as dismissal of workers for having participated in a strike, implies a serious risk of abuse and constitutes a violation of freedom of association. (See, for example, 234th Report, Case No. 1179 (Dominican Republic), para. 297.) However, the Committee notes that in the present case it is not clear whether any actual dismissals took place.
4. 469. The Committee notes the Government's denial that its training policy is a way of muzzling the labour movement, but the Committee is concerned to see from the administrative circular supplied by the complainant that it is the ruling political party which has the final choice as to which labour leaders shall attend courses abroad. The Committee trusts that this broad power vested in the Party does not extend to the choice of unionists to take part in purely union-organised courses wherever held, which, it would point out to the Government, as is clear from the principle of non-interference in the affairs of workers' organisations, should be a matter ultimately in the hands of the workers' organisation or educational institution responsible for the training activities.
5. 470. As regards the confiscation by the authorities of the passports of the Chairman and Secretary-General of the complainant union which prevented their participation in two ILO meetings, the Committee notes that the Government's firm refusal to return these documents appears to be based on two distinct grounds: security reasons (which are not elaborated) and its reference to the correction of the leadership of the ZCTU if the union loses direction. While the Committee has stated that workers and their organisations should respect the law of the land, it has likewise emphasised in cases such as the present one that it is important that no delegate to any organ or Conference of the ILO, and no member of the Governing Body, should in any way be hindered, prevented or deterred from carrying out his functions or from fulfilling his mandate. (See, for example, 61st Report, Case No. 271 (Chile), para. 50; 83rd Report, Case No. 399 (Argentina), para. 301; 217th Report, Case No. 1104 (Bolivia), para. 315.) Apart from the specific protection granted in conformity with article 40 of the Constitution of the ILO to members of the Governing Body so as to enable them to carry out their functions vis-à-vis the Organisation in full independence, the Committee would stress that participation as a trade unionist in meetings organised by the ILO is a fundamental trade union right. It is therefore incumbent on the government of any member State of the ILO to abstain from any measure which would prevent representatives of a workers' or employers' organisation from exercising their mandate in full freedom and independence. In particular, a government must not withhold the documents necessary for this purpose.
6. 471. The Committee is particularly concerned over the Government's attitude because Messrs. Chiluba and Zimba were both the subject of an earlier complaint against Zambia (See Case No. 1080, 217th Report, paras. 70 to 79, approved by the Governing Body in May 1982.) concerning their arrest under the Preservation of Public Security Act. Although they appealed and were eventually released from detention and the complainant withdrew its complaint, the Committee noted the complainant's statement of trust that the release was final and that the trade union leaders concerned would suffer no repercussions.
7. 472. In the present case the Committee would urge the Government to respect these basic principles of trade union rights which the Government itself recognises as flowing from its membership of the ILO, irrespective of ratification of any specific freedom of association Conventions. The Committee requests it to take the necessary measures for the return of the passports, in particular so that the ZCTU Secretary-General, and deputy Worker member of the ILO Governing Body, Mr. N.L. Zimba, will be able to participate fully in ILO meetings; it requests the Government to inform it of developments in this matter.

The Committee's recommendations

1. 473. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • a) The Committee considers that the participation as a trade unionist in meetings organised by the ILO is a fundamental trade union right. It urges the Government to return urgently the passports of the ZCTU Chairman and Secretary-General to them, in particular so as to allow them to participate fully in international trade union and ILO meetings and it requests the Government to inform it of developments in this matter.
   • b) The Committee draws the Government's attention to the importance of the participation of trade union leadership - if they so wish - in May Day celebrations and expresses the hope that the Government will take this principle into consideration for the celebration of May Day 1988.
   • c) The Committee trusts that the choice of unionists to take part in purely union-organised training courses, wherever held, is left to the workers' organisation or educational institution responsible for such activities and is not dictated by any political party.