Informe provisional - Informe núm. 306, Marzo 1997

Caso núm. 1884 (Eswatini) - Fecha de presentación de la queja:: 23-MAY-96 - Cerrado

Allegations: Intimidation and harassment of trade unionists and violations of the right to organize and the right to strike

1. 619. In communications dated 23 and 29 May 1996, the International Confederation of Free Trade Unions (ICFTU) submitted a complaint of violations of freedom of association against the Government of Swaziland. The ICFTU submitted additional allegations in a communication dated 6 February 1997 and transmitted supplementary information in a communication dated 4 March 1997.
2. 620. Swaziland 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).
3. 621. The Government sent its reply in a communication dated 24 December 1996 and further information in a communication dated 4 March 1997.
4. 622. The Committee notes that the application of Convention No. 87 in Swaziland was discussed at the 1996 Conference Committee on the Application of Standards and that, on this occasion, the Government representative of Swaziland invited the Office to send a direct contacts mission to his country to examine the allegations made, which included the allegations made in the present complaint. Pursuant to this invitation, the Director-General appointed Mr. Barney Jordaan, labour law Professor at the University of Stellenbosch in South Africa, to represent him in a direct contacts mission to Swaziland which took place from 30 September to 4 October 1996. Mr. Jordaan was accompanied by Ms. Curtis, Senior Legal Officer in the Freedom of Association Branch, and Mr. Ndjonkou, Director of the ILO office in Pretoria. The report of this mission is attached as Annex I.

A. The complainant's allegations

1. 623. In its communication dated 23 May 1996, the ICFTU alleges the intimidation and harassment of its affiliate Swaziland Federation of Trade Unions (SFTU) and its leaders by the Swazi authorities and security forces and states further that the 1995 Industrial Relations Act severely violates the right to organize and the right to strike.
2. 624. In October 1993, the SFTU submitted a list of issues for negotiation to the Government. This list subsequently became known as the "27 demands". The demands included legislation to allow courts to order the reinstatement of unfairly dismissed workers; the establishment of a national minimum wage; the establishment of a national social security scheme; maternity leave pay; a May Day holiday; the setting up of an economic forum; an end to brutality by the city council against street vendors; an end to victimization of journalists; no privatization of water supply services; as well as demands for a more democratic and representative society.
3. 625. On 21-22 February 1994, the SFTU held a mass stay-away in support of its 27 demands. The demands became the subject of discussions and negotiations between the SFTU and the Government. The Government, together with the other parties, appointed a task force to analyse the demands. However no concrete proposals emerged. Strikes took place in many sectors in the following months. According to the ICFTU, police used violence and tear-gas on several occasions to suppress them and the authorities used the High Court to obtain restraining orders against strikers, thereby bypassing the Industrial Court system.
4. 626. The ICFTU further alleges that a worker was shot by the police using live ammunition during a strike at a factory on 22 July 1994. The worker's leg was fractured. The SFTU General Secretary, Jan Sithole, visited the factory but the worker had already been taken to a clinic. On his way to visit the injured worker, police told Jan Sithole that senior police officials wanted to see him. He was prevented from visiting the injured worker and ordered to the company's security offices where senior police officials were waiting. He was interrogated by the officials who tried, unsuccessfully, to link the SFTU with political parties which are banned under Swazi legislation.
5. 627. The police then forced Jan Sithole into a car with three senior armed police officials. The car, which was followed by another containing four armed police officials, was driven into sugar-cane fields. They stopped in the middle of isolated fields. The police officials told Jan Sithole that they regretted that the law allowing for a 60-day period of administrative detention was no longer in force. They speculated about the fact that he had not already been arrested because they said he was causing unrest in the country and was making it ungovernable. The cars were then driven back to town and Jan Sithole was released after five hours' detention.
6. 628. Subsequently, Jan Sithole was subjected to police surveillance and received threats to his life through anonymous telephone calls. Three heavily armed men visited his house in his absence and the telephone was temporarily cut. There were rumours that some officials in government circles were planning an "accident" to eliminate him. Plain clothes police monitored SFTU meetings and seminars. Bribes were offered to SFTU office staff to try and obtain SFTU minutes and documents. A team of security police launched an extensive inquiry into Jan Sithole's citizenship with the intention of deporting him. They travelled to Mozambique and South Africa, but the exercise proved futile.
7. 629. On 13-14 March 1995, the SFTU held a stay-away in support of the 27 demands and to express disappointment at the continued failure of the Government to make concrete proposals to settle the issues. The stay-away paralysed the capital city Mbabane, and the country's main city Manzini. A number of workers were arrested for striking.
8. 630. The Government undertook to ensure that a solution was reached on some of the main issues within seven days. A parliamentary committee was established. However, despite the willingness of the SFTU and the Federation of Swaziland Employers to negotiate, no progress was made, and it became clear that the Government was seeking confrontation.
9. 631. On 24 March, the police served the SFTU with an injunction to stop them holding report-back meetings to membership planned for the following weekend. The two meetings, one of trade union officials and one of workers, went ahead when the High Court ruled against the injunction.
10. 632. At the end of March 1995, the Government introduced an Industrial Relations Bill into the National Assembly. According to the ICFTU, this Bill and the amendments to the Employment Act were introduced without discussion in the tripartite Labour Advisory Board. The Bill was condemned by unions and employers alike for its serious violations of trade union rights.
11. 633. The Industrial Relations Bill was passed in the National Assembly on 7 December 1995, and on 19 January 1996, the King of Swaziland gave his assent to it.
12. 634. The ICFTU points out the following provisions of the Industrial Relations Act which violate ILO Convention No. 87:
    • - the Act imposes penal sanctions for certain legitimate industrial relations practices. An official of a trade union federation who calls a strike can be punished by a fine of 5,000 emalengeni or a maximum of five years' imprisonment, or both, and a subsequent five-year ban on holding trade union office;
    • - equally severe penalties apply to organizations or office-holders calling, organizing, or giving financial support to strikes in essential services. The Act gives a broad definition of essential services, and gives the Minister of Labour unilateral powers to amend it;
    • - the Attorney-General can unilaterally apply for a declaratory order to stop a strike and the Minister of Labour can unilaterally apply for an order to interdict a strike on the basis of national interest, which is not defined;
    • - the Act gives the Commissioner of Labour the power to suspend an organization or federation. This power is not subject to the approval of the judicial authorities;
    • - the Commissioner has wide powers to interfere in union constitutions;
    • - it bans the holding of more than one official position in a union as well as banning trade union officials from holding office in a political party;
    • - the Act restricts the activities of a union or federation by maintaining the limitations on their roles contained in the previous law to the offering of advice and services. Severe penalties, including dissolution, can be imposed on a union or federation which, during the preceding 12-month period, has, in the opinion of a court, devoted more time and funds to campaigning on public policy issues than on occupational issues;
    • - it prohibits federations from calling rallies or mass meetings.
13. 635. After the March 1995 mass stay-away, there had been optimism that all the outstanding issues between the SFTU and the Government would be settled, but this did not materialize. The parties remained apart on a number of issues and a climate of mistrust grew. The SFTU saw the provisions of the Industrial Relations Bill as a clear attempt to either neutralize or eliminate its leaders.
14. 636. In early June 1995, the authorities claimed that Jan Sithole had no right to Swazi citizenship, despite the fact that he was born there, had lived there all his life, and had a Swazi mother. His father had come from Mozambique. The police came to his home at 1 a.m. on 3 June and gave him a letter from the Chief Immigration Officer ordering him to appear before a Citizenship Board on 22 June to justify his claim to Swazi citizenship. Press reports speculated on his possible deportation to Mozambique.
15. 637. Jan Sithole had applied for citizenship in 1979 in order to comply with 1974 legal requirements and had received no response. Subsequently, under a 1992 citizenship law, Swazi nationality was conferred on all persons whose father was not a Swazi, and all such persons were required to seek a certificate of naturalization from the Minister of Home Affairs. Jan Sithole's hearing by the Citizenship Board was postponed to 20 July. It did not take place. On 19 July the authorities wrote to him asking for "convincing proof that he qualifies under the Act as a citizen of Swaziland".
16. 638. On 9 July the SFTU announced a national mass stay-away for 17 July after negotiations with the Government on its demands had again failed. The SFTU said that many of the demands had not been met. Jan Sithole continued to receive death threats from an anonymous caller and the SFTU reported rumours that he would disappear before 17 July.
17. 639. On 14 July the Prime Minister issued Legal Order No. 100 designating the mass stay-away called by the SFTU as a boycott and making anyone furthering a boycott liable to six months' imprisonment. The Government mobilized the police, army and prison officers and said they would use force against those participating in the stay-away. Troops were deployed in the main employment centres to intimidate workers. There were also threats, intimidation and dismissals at workplaces.
18. 640. The announcement of the stay-away led to a last minute agreement in tripartite negotiations and the suspension of the stay-away for two weeks. A tripartite committee was established to examine the 1995 Industrial Relations Bill. On 21 July, the Government revoked Legal Order No. 100.
19. 641. The ICFTU indicates that in the late evening of 29 August four armed and hooded men with automatic rifles stopped Jan Sithole in his car. They took his clothes, personal documents and SFTU documents, and locked him in the car boot. One of the kidnappers wanted to kill him. The car was driven to the outskirts of Manzini where it was abandoned in the middle of the road on a blind corner. Jan Sithole was freed from the car boot early the next day by a passer-by.
20. 642. The ICFTU adds that the SFTU believes that government agents were behind the kidnapping and the attempt to kill Sithole. The police were known to be in possession of the documents stolen by his abductors.
21. 643. On 15 November, six trade unionists and two members of pro-democracy groups were arrested in Mbabane. Among the trade unionists arrested were the following officials of SFTU-affiliated unions: Themba Shongwe, Vice-President of the Media Workers' Union; Barbara Dlamini, General Secretary, Hotel and Catering Workers' Union; Julia Ndwandwa, Treasurer, Ports and Telecommunications Union; and John Masombuka, President of the Street Vendors' Union. They were released the following day after interrogation. It was believed the arrests were linked to a pro-democracy civic meeting held on 11-12 November. During the same month, Jabulani Nxumalo, the SFTU Assistant General Secretary, was dismissed from his job, under the pretext of a workplace reorganization.
22. 644. Towards the end of 1995, the authorities began investigating the citizenship status of Richard Nxumalo, the SFTU President. The police and members of the intelligence forces visited his home in the rural areas and, on at least two occasions, interviewed several people about when his family had settled in the region. They also went to his employer to look at his employment records. The authorities claim that Richard Nxumalo is not a Swazi, but a South African.
23. 645. The SFTU announced that it would embark on mass action in early 1996 to continue to press the Government to meet its 27 demands. In response to this, speaking on the government-owned radio station, a government official said that force would be used against striking workers.
24. 646. On 16 December, the Deputy Prime Minister alleged that the SFTU was against the monarchy and was preparing to overthrow the King. This was strongly refuted by the federation.
25. 647. The SFTU announced a mass stay-away for 22 January 1996 which would also call for the legalization of political parties.
26. 648. On 18 January, the Prime Minister issued Legal Notice No. 11 of 1996 which designated the stay-away as a boycott bringing it within the scope of section 13 of the 1963 Public Order Act. Bail is not granted for charges under this Act.
27. 649. On 22 January, Jan Sithole, Richard Nxumalo and Jabulani Nxumalo were arrested while holding a meeting with the Swaziland Federation of Employers. They were taken to Mbabane police station and told that they would be charged under sections 40 and 75 of the Industrial Relations Act, 1995. Their lawyer was allowed to visit them and was told that the case would be heard on the following day at 9 a.m. in Mbabane and that the three trade union leaders would be held at Piggs Peak, 70 km away. However the three union leaders were taken to Mliba police station, 93 km in the opposite direction. The police did not collect them until 1.30 p.m. the next day. Although they were told they were going to Mbabane, they were taken to another police station in Siphofaneni about 75 km from Mbabane.
28. 650. The conditions that the SFTU leaders were held in in Mliba were particularly appalling. They were held with three other people in a police cell one and a half metres square without water or lights.
29. 651. The police brought a magistrate and the Director of Public Prosecutions to the police station to prosecute the case. By chance the President of the Swaziland Law Society saw the convoy of cars. He arrived at the police station and found that the union leaders had already been charged under the Public Order Act of 1963 in connection with Legal Notice No. 11 of 1996, without their lawyer being present. (The complainant organization provided a copy of the charge sheet in an annex to its complaint.)
30. 652. The President of the Law Society objected to the fact that they were being charged without a lawyer, and the case was adjourned. The President of the Law Society went to fetch the SFTU lawyer who had originally been told that the court hearing would be in Mbabane and subsequently told that the hearing would be in Big Bend. When the lawyers arrived in Siphofaneni the case had been heard and bail had been refused. The magistrate remanded the three union leaders in custody pending another court hearing in seven days. The Director of Public Prosecutions recommended that they should be taken to a maximum security prison. The police refused to tell the lawyer where they would be imprisoned. Eventually it was discovered that they were taken to Big Bend prison for a short time and then transferred to Matsapa maximum security prison.
31. 653. The following day the SFTU lawyer filed an urgent application for bail and challenged the charges in Mbabane High Court. On 25 January when the Government's lawyers were scheduled to respond, the case was withdrawn. In his summing-up, the judge made sharp criticisms about the way the State had handled the case. He said that false and misleading information had been given to lawyers about where the SFTU leaders were being held; the charges under which they were held; and the whereabouts of their court hearing. The judge was subsequently demoted from Acting Chief Justice to the status of an ordinary judge.
32. 654. After their release on 25 January, the three union leaders attended a union meeting at Simunye sugar estate. All the participants were checked to ensure that they were accredited trade union representatives. One car arrived with two registration numbers, one superimposed on the other. After checking, it was established that the car had a government registration plate covered by a private registration number. The two occupants of this car ran away. They were caught after a chase and it was found out that they were members of the police force. The car was searched. It contained revolvers and two pistols, ammunition, recording equipment and two-way radios. There were several other number plates in the boot of the car. The SFTU reported this to the police who drove the car away. The Government had deployed the army and the police in the area.
33. 655. The SFTU suspended the stay-away on 29 January. The police had fired tear-gas and beaten workers during the stay-away and a 16 year-old girl was killed by a stray bullet fired by the police.
34. 656. The Government subsequently told the SFTU that it had appointed five cabinet ministers to negotiate with them. The SFTU tried for two days to meet the Government's negotiators but was not successful. On the following day the Government sent a message that it would meet with the SFTU yet it knew that a meeting would not be possible because the SFTU leaders were attending the funeral of the girl who had been killed.
35. 657. The SFTU planned a mass meeting on 4 February and the police threatened arrests and confrontation if it went ahead. The authorities banned the meeting.
36. 658. On 7 February, Jabulani Nxumalo, the SFTU Assistant General Secretary was arrested and charged with forging a high school certificate in 1984. He was released on bail. SFTU leaders continued to receive death threats.
37. 659. The Government filed new charges against the three SFTU leaders (Jan Sithole, Richard Nxumalo, Jabulani Nxumalo), two other senior union officials (Themba Msibi, Barbara Dlamini) and the SFTU itself. They were charged under section 40 of the Industrial Relations Act, read together with sections 73 and 75, in connection with the January stay-away. They were summoned to a pre-trial hearing on 29 March. Negotiations with the Government were suspended because all the accused were in the SFTU negotiating team.
38. 660. The ICFTU concludes that the climate of intimidation and violence directed against SFTU leaders and the lack of respect for human rights makes normal trade union activities impossible. The SFTU General Secretary, Jan Sithole, and other SFTU leaders are subject to systematic repression because of their trade union work. The right to strike is flagrantly denied and the extent of interference into trade union affairs by the Government is evidence of its intent to break up the independent and democratic trade union movement.
39. 661. In its communication of 29 May 1996 the ICFTU adds that section 3 of the Public Order Act of 1963 empowers the police to give or refuse permission for meetings and public gatherings and is applied to trade union meetings in Swaziland and thereby authorizes the police to be present.

B. The complainant's additional allegations

1. 662. In a communication dated 6 February 1997, the ICFTU submitted additional allegations of serious infringements of trade union rights. According to the complainant, in a renewed attempt to stimulate dialogue with the authorities, the SFTU proposed a two-day mass stay-away of workers on 3 February 1997. Following a union meeting on 31 January, SFTU General Secretary, Jan Sithole was arrested by the police. Later that night the union's President, Richard Nxumalo, Vice-President, Themba Msibi and Assistant General Secretary, Jabulani Nxumalo were also arrested. They were initially held at Mankayane Police Station about 40 km from Manzini and were formally charged before a magistrate court on 3 February with violating section 12 of the 1963 Public Order Act. As the charge is non-bailable, they remain incarcerated. It has been reported that they were moved to the Matsapa maximum security prison on 4 February.
2. 663. The ICFTU further alleges that on 1 February 1997, seven police officers and 15 heavily armed soldiers raided and searched the SFTU headquarters without a warrant. The same day the Government had applied to the Industrial Court to prohibit the SFTU, its affiliates and all Swazi workers from organizing or participating in the mass stay-away. The interdiction was immediately granted under section 70 of the IRA. Legal Notice No. 9 of 31 January 1997 declared the mass stay-away as a "boycott" under the terms of the 1963 Public Order Act. Thus, anyone found guilty of sabotaging essential services would receive a life sentence and any other offence under the Act would carry sentences ranging from six months' to five years' imprisonment.
3. 664. On 2 February 1997, the SFTU held another meeting to demand: the withdrawal of charges against the arrested leaders; an end to threats, intimidation and harassment of trade unionists; and the beginning of negotiations on socio-economic concerns with a designated ministerial team. The complainant adds however that, at 7 p.m. on 3 February, 150 armed police surrounded 23 members of the SFTU General Council who had just finished a meeting in a school. Police opened fire but there were no injuries. Trade unionists were ordered to go to the local police station where they were locked in a tear-gas-filled room until 3 a.m. Among those seized was SFTU Treasurer, Mxolisi Mbata, a wheelchair user. The complainant states that soldiers threw him from his chair and forced him to crawl into the police station. All the General Council members were beaten and questioned individually. In reply to an inquiry as to how they could call a meeting without police authorization, the Acting General Secretary stated that it was a closed gathering which did not require permission.
4. 665. The first day of the mass stay-away was relatively successful in most economic sectors. Massive security measures were imposed with heavily armed soldiers posted at electric power plants, water reservoirs, telecommunications, airports and banks in Mbabane and Manzini. There were reports of some police violence and intimidation. The complainant adds that trade union officer, Simon Tsabedze was beaten up and the home of SFTU Trustee, Afrika Magongo, was raided and searched by police acting without a search warrant. Furthermore, police surrounded the SFTU office making access for workers all but impossible.
5. 666. In its communication dated 4 March 1997, the ICFTU has indicated that the SFTU leaders arrested on 31 January have now been released.

C. The Government's reply

1. 667. In its communication of 24 December 1996, the Government emphasizes that Swaziland has enjoyed stability and a good reputation for industrial harmony and has benefitted from an Industrial Relations Act which has facilitated the formation of employers' and workers' organizations for purposes of negotiating terms and conditions of employment, including the right of federations to express opinions on public policy and administration. The Government adds, however, that recent events have led to workers' organizations taking an active part in harnessing their labour power to toe the lines of political transformations under the guise of labour issues. Thus, the workers' organizations led by the SFTU threatened anarchy to destabilize the Government and undermine the law enforcement agents who reacted with responsive actions aimed at keeping the country to the normal level of governance.
2. 668. The Government further indicated its belief in the principle of a continuous legislative review as concerns all laws relating to employment through consultations with the social partners, yet at the same time reserved its right to govern, maintain peace and stability and to create an enabling environment for mutual respect for the rule of law. Finally, the Government confirmed its desire to cooperate with the ILO and indicated that it would consider any opinions or recommendations concerning this matter.
3. 669. As concerns the allegations of intimidation and harassment of the SFTU leadership by the police, the Government indicated that it was not aware of any such instances, but added that the police have a legal obligation to attend public meetings in order to ensure the maintenance of law and order as well as the protection of life and property, while this should not be considered to be synonymous with interference as the police do not influence any decisions taken therein. In the event that law and order is endangered, the police are authorized to apply the minimum force sufficient to accomplish their lawful duty, such as the use of tear-gas to disperse a disorderly group. The Government emphasizes that even minimum force is not used indiscriminately.
4. 670. While admitting that the police had several discussions with Mr. Jan Sithole, Secretary General of the SFTU, concerning issues of national security during strike action, the Government indicated that it was not aware of any instance where Sithole was interrogated, or where he and his organization were linked to political parties, nor were they aware of any complaint being made to the police that Sithole had been briefly driven into a sugar-cane field by the police, allegedly accused of causing industrial unrest and making the country ungovernable. The Government also indicates that it was not aware of any allegations concerning police surveillance of Mr. Sithole's home, anonymous phone calls, etc., and as far as the allegation that government officials planned an "accident" to eliminate Sithole, the Government states that it was not aware of such a plan and emphasizes that it would not promote a crime under any circumstances. As concerns the matter of Mr. Sithole's citizenship, the Government states that Sithole was called to appear before the Citizenship Board for an interview simply because he applied for citizenship in 1979 under the terms of the Citizenship Order of 1974 and was in no way connected to his leadership role in the trade union movement. Finally, the Government considers that the suspicion that it was behind Mr. Sithole's kidnapping is both unfounded and grossly irresponsible. Car hijacking incidents are part of an epidemic crime wave affecting not only Swaziland but the whole of the southern African region. This matter, as well as several other cases of a similar nature, is still under police investigation.
5. 671. The Government confirms that a worker was regrettably injured during a strike at the Mhlume Sugar Estate as alleged. The workers however had refused to obey a High Court order issued upon application by the management that the workers should maintain a 100-metre distance from the sugar mill. The police were present to maintain law and order and to protect life and property. The mob, armed with an assortment of dangerous weapons, attacked the management and the police dutifully responded by firing tear-smoke canisters and one of the workers involved in the clash was hit on the leg by a canister and was injured.
6. 672. As concerns the arrests related to the March 1995 stay-away, the Government indicates that it is only aware of 19 arrests which took place with respect to individuals who were found looting shops, six of whom were tried and convicted by the court. The Government does however confirm that the police interrupted the SFTU meeting of 24 March in the interest of peace, security, order and public safety in terms of the Public Order Act.
7. 673. As concerns the allegation that the 1996 Industrial Relations Act violates the right to organize and the right to strike, the Government indicates that this Act, to the contrary, contains several provisions which establish these rights. Furthermore, contrary to the allegations, the Government indicates that the social partners were consulted on this draft legislation, but that they were unable to reach consensus on the fundamental issues. As concerns the specific allegations made by the complainant concerning the provisions of the Act the Government makes the following points:
   • - penalty clauses have always been part of the industrial relations legislation and it was necessary to raise these penalties to such levels as would help prevent violation of the national law in particular, and the ILO Conventions generally, in an effort to respond to the threat of erosion of responsible behaviour by the key players. As concerns penalties for strikes in essential services, the Government indicates that strikes in such services could result in loss of life and adds that it does not know what is meant in the allegation that the definition of essential services is too broad;
   • - the allegedly unilateral powers of the Minister and the Attorney-General under sections 70 and 71 of the Act are subject to court approval;
   • - the Commissioner of Labour must have powers to enforce the provisions of the law concerning the constitutions of workers' organizations;
   • - the disqualification from holding office in more than one organization and a political position is meant to avoid conflict of interest or divided loyalty and there are no suppressive intents;
   • - the alleged restrictions on federations were also present in the old legislation and are aimed at avoiding a situation where a federation takes a unilateral decision on an issue which is already being dealt with by a union, an approach common to many countries. The union is more competent to deal with an employer at shop-floor level and the federations or confederations only provide advice and service to the unions;
   • - the Government refutes the allegation that federations are prohibited from calling mass meetings and states that section 40(2) of the Act only prohibits federations from calling members of their affiliates and giving or taking instructions which, if carried out, would violate the law.
8. 674. According to the Government, Legal Notice No. 100 issued by the Prime Minister on 14 July 1995 designating the mass stay-away as a boycott and giving orders to the police to use force was only intended to help address the situation whereby the leaders of the SFTU had mobilized members and non-members of their affiliates into taking part in disorderly and riotous assembly and activities. Life and property were at risk due to sporadic and uncontrolled violence, including the burning of buses and beating up of commuters. Furthermore, no order was given to the police to use force although they were ordered to do all they could, within the law, to protect life and property. In any event, the legal notice was later withdrawn to facilitate negotiations. The Government indicates that the same is true with respect to Legal Notice No. 11 of 1996.
9. 675. As concerns the dismissal of Mr. Nxumalo from his employment, the Government indicates that this is an internal matter for the company and the Government is never involved unless a report of a dispute is made to the Department of Labour, in which case conciliation would be sought. No such report was made in this case.
10. 676. As concerns the alleged demotion of a High Court judge following sharp criticism of the manner in which the Swaziland leadership case was handled, the Government indicates that no judge of the High Court was ever demoted. It states however that one judge was made to act as Chief Justice while the country was still looking for a suitable candidate for the position. This was not the first time this judge was made to act and then excused when the right person was found. When consulted, the judge agreed that he would not mind being replaced by the present incumbent. Minutes of the Judicial Service Commission are available as a record to that effect. The Judge President, when confronted by the Law Society which feared that he did not know about the change, categorically explained that he was involved in the decision to revert the judge from acting justice to his substantive judgeship. Acting positions are, by their nature, not a guarantee that those acting will end up confirmed as substantive holders of these positions.
11. 677. As concerns the announced stay-away for January 1996, the Government denies that any officials threatened the use of force against anyone at any stage, but had merely indicated that "the law would take its course" against those who were involved in criminal activities. The Government does however confirm the arrest of SFTU officials following this stay-away but refutes the allegations that lawyers were denied access to their clients or that they were kept in squalid conditions, as they were kept in normal police cells. The SFTU officials were moved from one police station to another only for security reasons.
12. 678. As concerns the accusation of spying against two police officers, the Government indicates that these officers were only in the vicinity of the SFTU meeting on security patrol. They were then, according to the Government, beaten up by a group of workers and deprived of their equipment and eventually handed over to the SFTU executive under a deliberate false impression that they were government spies sent to assassinate top SFTU officials. The SFTU has not provided any tangible evidence to this effect however.
13. 679. As concerns the killing of a young girl at the January 1996 stay-away, the Government indicates that, following reports of some disorder involving stoning of motor vehicles and the sound of gun fire from a striking mob, the police were deployed to bring the situation under control. When they arrived, they fired tear-smoke canisters and stun grenades to disperse the rioters who eventually fled. Because of the deafening noise from stun grenades, it was not possible to tell whether any gun shots had been fired from the mob. After this incident, it was discovered that the girl in question had been injured and later died. The police are still investigating the matter.
14. 680. The Government confirms the arrest under warrant of Jabulani Nxumalo for the alleged forgery of a high school certificate and indicates in detail the reasons for suspecting that this certificate was actually stolen from a Michael Nxumalo and forged to Jabulani's name. The Government affirms that his arrest has nothing to do with his being a member of the SFTU or being connected with any political intrigues.
15. 681. Finally, as concerns the new charges against the SFTU officials for the January stay-away, the Government indicates that these were brought by the Deputy Prime Minister in his duty to uphold law and order in accordance with the laws of Swaziland and had nothing to do with industrial bickering. According to the law, the Deputy Prime Minister may use his prerogative to amend or modify criminal charges at any time before an accused person pleads guilty on the initial charge. The fact that negotiations were going on at the time is unfortunate but the application of the law could not be compromised.

D. The Committee's conclusions

1. 682. The Committee notes that the allegations in this case concern the intimidation, harassment, arrest and detention of trade union leaders, the attack on union offices, the breaking up of union meetings and the ban on strike actions, as well as the entry into force in January 1996 of a new Industrial Relations Act (IRA) containing numerous provisions in violation of the principles of freedom of association.
2. 683. The Committee thanks the representative of the Director-General, Professor Barney Jordaan, for his report on the direct contacts mission which took place in Swaziland in October 1996 and wishes to note the full cooperation demonstrated by the Government when receiving this mission, as well as the information provided by the Government in its communication of 24 December 1996.
3. 684. The Committee first notes the Government's general indication that workers' organizations have recently taken an active part in trying to bring about political transformations under the guise of labour issues. While the Committee has considered that it is only in so far as trade union organizations do not allow their occupational demands to assume a clearly political aspect that they can legitimately claim that there should be no interference in their activities, it has also been noted that it is difficult to draw a clear distinction between what is political and what is, properly speaking, trade union in character (see Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, para. 457). The Committee is of the opinion in the present case, based on the information provided in the mission report, that the issues in question concern the exercise of legitimate trade union activities which do not cross the line into purely political activities the judgement of which would fall outside the Committee's competence. Furthermore, the Committee would recall that a system of democracy is fundamental for the free exercise of trade union rights and that all appropriate measures should be taken to guarantee that trade union rights are exercised in normal conditions with respect for basic human rights and in a climate free of violence, pressure, fear and threats of any kind (see Digest, op. cit., paras. 34 and 36).
4. The 1996 Industrial Relations Act
5. 685. As regards the allegations concerning the violation of the principles of freedom of association through the enactment of the Industrial Relations Act (relevant provisions are attached as Annex II), the Committee, like the Committee of Experts on the Application of Conventions and Recommendations, notes with regret that this Act contains a number of provisions contravening some of the most basic principles of freedom of association. It notes from the mission report that the Industrial Relations Bill drafted by the Government allegedly drew upon certain elements of the ILO draft and the Wiehahn Commission report, but was not the subject of any direct consultation with the social partners prior to its submission to Parliament. Moreover, while a tripartite forum was established with a view towards identifying the aspects of the Bill which were unacceptable to the social partners and to proposing agreed solutions, and noting that this forum rapidly approved a Protocol containing 62 unanimous amendments, the Committee regrets that the Government appears to have made no effort to respond to the concerns raised, but rather seems to have pushed through the adoption of the IRA in its original version. In this regard, the Committee draws the Government's attention to the importance it attaches to the prior consultation of employers' and workers' organizations before the adoption of any legislation in the field of labour law (see Digest, op. cit., para. 930) and expresses the hope that any further proposals concerning labour legislation be made on the basis of meaningful consultation with the social partners.
6. 686. As concerns the specific provisions of the IRA raised in the complaint, the Committee notes that section 40 prohibits a federation or any of its officers from causing or inciting the cessation or slow down of work or economic activity upon punishment of imprisonment and limits the role of federations to that of providing advice and services. While noting the explanations given by the Government for such restrictions, the Committee recalls that, in order to defend the interests of their members more effectively, workers' and employers' organizations should have the right to form federations and confederations of their own choosing, which should themselves enjoy the various rights accorded to first-level organizations, in particular as regards their freedom of operation, activities and programmes. Furthermore, the prohibition on the calling of strikes by federations and confederations is not compatible with Convention No. 87 (ratified by Swaziland) (see Digest, op. cit., paras. 621 and 478). The Committee therefore urges the Government to amend the legislation so as to ensure that federations enjoy full trade union rights, including the right to strike. As concerns the sanction of imprisonment of up to five years for strike action taken by a federation provided under section 40(3) of the IRA, while noting the Government's indication of a need for effective penalties, the Committee recalls that no one should be deprived of their freedom or be subject to penal sanctions for the mere fact of organizing or participating in a peaceful strike (see Digest, op. cit., para. 602) and urges the Government to repeal the penal sanctions in section 40(3), as well as those set out in sections 69(2) (illegal strike action), 72(3) (strike action while court proceedings pending), 73 (3-5) and 74 (strike action in essential services and any financial assistance given thereto), and 87(3) (picketing).
7. 687. The allegations also refer to section 70 of the IRA which provides that the Minister for Labour may apply to the court for an injunction restraining the parties to a strike where he or she considers that such action would threaten or affect the national interest. While noting that the Government stresses that this power is subject to court approval, the Committee must recall that the right to strike may be restricted or prohibited only: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population) (see Digest, op. cit., para. 526). Restrictions on strikes affecting the "national interest" may, in the Committee's opinion, fall outside of the above two categories. The Government is therefore requested to take the necessary measures to repeal this section of the IRA.
8. 688. As concerns the allegation that the IRA too broadly defines essential services in section 73, the Committee notes that this section includes broadcasting services in the list of essential services. In this respect, the Committee must recall that it has considered that broadcasting services do not constitute essential services in the strict sense of the term where the right to strike may be prohibited (see Digest, op. cit., para. 545). Furthermore, and noting from the mission report the concern raised by the workers and the proposals of the Labour Advisory Board (LAB) in respect of civil servants, the Committee notes that essential services are also defined in the Act as "any service in the civil capacity in respect of the Government of Swaziland". It recalls, as indicated above, that the right to strike may be restricted or prohibited only for public servants exercising authority in the name of the State and trusts that the application in practice of section 73(6) will be restricted accordingly.
9. 689. As concerns section 71 of the IRA which provides that, where the Attorney-General has reason to believe that a strike taken or threatened is not in conformity with the Act or any other law, he or she may apply to court ex parte for a declaratory order to that effect and that the parties shall thereafter immediately refrain from such action failing which the Government may take appropriate measures to stop the action, the Committee considers that this section contravenes the principles of freedom of association only in so far as the provisions of the law allegedly being violated by the strike action violate the principles of freedom of association. It would, in this respect, refer to its conclusions concerning restrictions on the right to strike as set out above.
10. 690. The ICFTU further alleges that the Commissioner of Labour has wide powers to interfere in union constitutions. In this respect, the Committee notes that section 26 of the IRA sets out a large list of subjects which must be included in the constitution of an organization but which, in most cases, appear to be formal requirements, leaving the specific determinations as to substance up to the organizations themselves. In this respect, the Committee recalls that the listing in the legislation of the particulars that must be contained in a union's constitution is not in itself an infringement of the right of workers' organizations to draw up their internal rules in full freedom (see Digest, op. cit., para. 340). The complainant further alleges, however, that the Commissioner of Labour's power to suspend an organization or federation for failure to comply with the constitutional requirements is not subject to the approval of the judicial authorities. The Committee notes in this regard that the right to appeal such decisions to the Industrial Court is provided for under section 5(2) of the IRA. It would recall, however, that, if the principle that an occupational organization may not be subject to suspension or dissolution by administrative decision is to be properly applied, it is not sufficient for the law to grant a right of appeal against such administrative decisions; such decisions should not take effect until the expiry of the statutory period for lodging an appeal, without an appeal having been entered, or until the confirmation of such decisions by a judicial authority (see Digest, op. cit., para. 681). The Committee therefore urges the Government to take the necessary measures to ensure that any administrative decision to suspend an occupational organization will be deferred pending the outcome of any corresponding judicial appeal.
11. 691. The Committee does note however that section 30 of the IRA also grants the Labour Commissioner the power to refuse registration if satisfied that an already registered organization is sufficiently representative of the whole, or a substantial proportion of the interest in respect of which the applicant seeks registration. The Committee notes from the mission report that the Wiehahn Commission had maintained this system of industry unions in its recommendations on the grounds that the Labour Commissioner's right of refusal in this respect actually meant that the Commissioner may register more than one organization in an industry and that any refusal may be appealed. It must, however, recall that the existence of an organization in a determined occupation should not constitute an obstacle to the establishment of another organization, if the workers so wish (see Digest, op. cit., para. 276). It therefore urges the Government to take the necessary measures to repeal section 30(5) of the IRA.
12. 692. As concerns the allegation that the IRA violates the principles of freedom of association by prohibiting persons from holding office in more than one organization at any one time or from holding office in a political party (section 35), while noting the Government's concern for avoiding conflicts of interest, the Committee would recall that it is the prerogative of workers' and employers' organizations to determine the conditions for electing their leaders and the authorities should refrain from any undue interference in the exercise of the right of workers' and employers' organizations freely to elect their representatives, which is guaranteed by Convention No. 87 (see Digest, op. cit., para. 351). It therefore requests the Government to take the necessary measures to repeal the above-mentioned restrictions on the election of trade union officers and leave it up to the organizations themselves to determine the conditions of eligibility in their own by-laws.
13. 693. Noting that, subsequent to the adoption of the IRA, the tripartite Labour Advisory Board submitted its recommendations for amendments to the Act to the Minister of Labour and Public Service in March 1996, and welcoming the Government's indication of openness to review the Act, the Committee trusts that the Government will take all measures necessary in the very near future so that the Act is amended to bring it into conformity with the above-mentioned principles, due consideration being given to the LAB proposals. It requests the Government to keep it informed of the progress made in this regard. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.
    • Police intervention in trade union meetings, the use of force in protest actions and police harassment
14. 694. As concerns the general allegations of police intervention in trade union meetings, the Committee notes from the mission report that the 1973 Decree on meetings and demonstrations has been evoked by the Police Commissioner to justify police presence in order to ensure that union meetings were not just used as a front for outlawed opposition political groupings. In this regard, the Committee, like the Committee of Experts on the Application of Conventions and Recommendations, notes with concern that section 12 of this Decree places important restrictions on the rights of organizations to hold meetings and peaceful demonstrations and that this can result in a serious violation of freedom of association. The Committee therefore urges the Government to take the necessary measures to repeal section 12 of this Decree so as to permit trade union organizations to operate freely and to refrain from this type of interference in trade union events.
15. 695. As concerns the general allegations that police have broken up a number of strikes with the use of force and tear-gas, the Committee notes the explanations given by the Commissioner of Police that police only used tear-gas on two occasions when the protest action was out of control. While it is not possible from the information available to determine whether the police response to the various strike actions was disproportionate, the Committee wishes to recall the importance it attaches to the principles that workers should enjoy the right to peaceful demonstration to defend their occupational interests, that the right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests and that, in cases of strike movements, the authorities should resort to the use of force only in situations where law and order is seriously threatened (see Digest, op. cit. paras. 132, 475, and 580).
16. 696. As concerns the allegation that a 16 year-old schoolgirl was killed by a stray bullet fired by the police during the January 1996 stay-away organized by the SFTU, the Committee notes the indication given by the Commissioner of Police that the pathologist's report had established that the girl had been killed by a bullet with a different calibre to that normally used by the police. While noting further that this matter is still under police investigation, the Committee regrets that an independent inquiry was not established to look into this matter. In this regard, the Committee recalls the importance it attaches, in cases in which the dispersal of public meetings or demonstrations by the police for reasons of public order or other similar reasons has involved loss of life or serious injury, to the circumstances being fully investigated immediately through an independent inquiry and to a regular legal procedure being followed to determine the justification for the action taken by the police and to determine responsibilities. Therefore, and in order to promote a climate of trust, the Committee requests the Government to take the necessary measures immediately to establish an independent inquiry into this matter to determine those responsible and punish the guilty parties.
17. 697. As concerns the allegations of the arrest and detention of trade unionists, including the arrest and detention of six trade unionists and two members of pro-democracy groups in November 1995, the Committee considers that such action constitutes a violation of the principles of freedom of association and insists that the Government refrain from taking measures against trade union leaders and trade unionists for exercising legitimate trade union activities.
18. 698. The Committee also notes the allegations that Jan Sithole, Richard Nxumalo and Jabulani Nxumalo, officials of the SFTU, were arrested on 22 January and moved from the police station in Mbabane to one in Siphofaneni, without their lawyer having been duly informed. As a result, these trade union officials were charged the following day in the absence of their lawyer. While noting that these charges were subsequently dropped following a legal challenge made by the SFTU lawyer, the Committee also notes from the mission report that the Commissioner of Police has confirmed the above allegations, stating that the SFTU officials were moved for their personal safety and to avoid any violent confrontations at the police stations and that the fact that the change in venue was not communicated to their lawyer was purely unintentional. In this respect, the Committee must recall that the International Covenant on Civil and Political Rights, in Article 14, states that everyone charged with a criminal offence shall have the right to adequate time and the necessary facilities for the preparation of his defence and to communicate with counsel of his own choosing (see Digest, op. cit., para. 118) and therefore trusts that all measures will be taken in the future to ensure that, in the event of detention, the lawyers of unionists will be duly informed of their whereabouts. As concerns the alleged demotion of the justice hearing this matter, the Committee notes the explanations given by the Government and does not consider itself in a position to determine whether the justice was removed from his acting role as a result of the position which he took in this case. The Committee would nevertheless stress the importance it attaches to the principle of the total independence of the judiciary in ensuring full respect for the principles of freedom of association, as well as the importance which the perception of independence has in promoting harmonious industrial relations.
19. 699. As concerns the anonymous death threats made against Mr. Sithole and his armed abduction on 29 August, the Committee notes that the complainant believes that government agents were behind the kidnapping since the police were known to be in possession of the documents stolen by Mr. Sithole's abductors. The Committee notes from the information provided to the mission that the Police Commissioner was not aware of any death threats made against SFTU officials and that no complaints had been lodged with the police in this regard. As concerns the abduction, the Committee notes the Government's indication that the complainant's suspicion of government involvement is both unfounded and irresponsible. It notes from the mission report that the Police Commissioner ascribed the abduction to criminals and indicated that the police had found the relevant documents referred to by the complainant in the area where the abductors were to have taken refuge. According to the Commissioner, the matter was still under investigation and could take up to a year to resolve. In this regard, the Committee considers that the disappearance, including brief kidnapping, or serious injury of trade union leaders and trade unionists requires the institution of independent judicial inquiries in order to shed full light, at the earliest date, on the facts and the circumstances in which such actions occurred and in this way, to the extent possible, determine where responsibilities lie, punish guilty parties and prevent the repetition of similar events (see Digest, op. cit., para. 51). The Government is therefore requested to indicate the measures taken to establish an independent investigation into the abduction of Mr. Sithole and to keep the Committee informed of the outcome of the investigation.
20. 700. The Committee notes the Government's indication that it was not aware of any police surveillance of Mr. Sithole's home and that Sithole was called before the Citizenship Board because he had applied for citizenship over 15 years ago and that this was in no way connected to his leadership role in the trade union movement. It further notes the allegation of harassment of Richard Nxumalo in respect of his Swazi citizenship and the arrest of Jabulani Nxumalo for having forged a high school certificate over ten years ago. Concerning the latter, the Committee again notes the Government's indication that the arrest of Mr. Nxumalo had nothing to do with his trade union membership or activities. The Committee also expresses particular concern for the systematic pattern of harassment to which Mr. Sithole has been subjected. It insists that the Government take vigorous action to bring such abuse to an end. The Committee would recall that all appropriate measures should be taken to guarantee that irrespective of trade union affiliation, trade union rights can be exercised in normal conditions with respect for basic human rights and in a climate free of violence, pressure, fear and threats of any kind and that allegations of criminal conduct should not be used to harass trade unionists by reason of their union membership or activities (see Digest, op. cit. paras. 36 and 43). The Committee therefore trusts that, in the future, measures will be taken to ensure that trade unionists are not harassed by reason of their membership or activities, particularly since, in the present case, the harassment concerns matters dating as far back as 1979.
    • Abuse of declaratory power to interrupt protest strikes
21. 701. The Committee notes that the Government has recently had frequent recourse to issuing legal orders designating mass stay-aways as boycotts under the 1963 Public Order Act. It further notes that, according to the complainant's latest allegations of 6 February 1997, the Government has once again used the 1963 Act to ban the stay-away called by the SFTU for 3 February. Among other things, the 1963 Public Order Act renders anyone furthering a "boycott" liable to six months' imprisonment. The national protest actions of July 1995 and January 1996 concerning the SFTU's 27 demands were both declared "boycotts" for the purposes of the 1963 Act and, in the latter case, charges were first brought against SFTU officials under this Act. Furthermore, the Government declared the January 1996 action to be boycott action before it had even taken place, declaring that the action was "likely to have the effect of bringing into hatred or contempt, exciting disaffection against or undermining the lawful authority of the Swaziland Government, endangering public order and endangering the economic life of Swaziland" and no other solution short of banning the action appears to have been sought for the maintenance of public order. The Committee recalls that the right to strike may be restricted or prohibited only with respect to essential services (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population) or as concerns public servants exercising authority in the name of the State (see Digest, op. cit., para. 526). The Committee is of the opinion that the two actions in support of the SFTU's 27 demands constitute legitimate trade union activity and do not fall into the above two categories. While noting the Government's expressed concern for eventual risk to life and property, the Committee regrets that no solutions were sought for ensuring public order within the context of the action. It therefore considers that the declaration of illegality concerning these national strikes taken in protest against the social and labour consequences of the Government's policy and the banning of these strikes constitute serious violations of freedom of association and it urges the Government to take measures so that the 1963 Public Order Act is amended to ensure that it will no longer be used to oppress legitimate and peaceful strike action (see Digest, op. cit., para. 493).
    • Charges pending against SFTU officials for taking part in protest action
22. 702. The Committee notes that, while the initial charges against Jan Sithole, Richard Nxumalo and Jabulani Nxumalo in respect of the January 1996 protest action were withdrawn, new charges have since been filed against these three SFTU officials, two other senior union officials (Themba Msibi and Barbara Dlamini) and the SFTU itself under section 40 of the Industrial Relations Act read together with sections 73 and 75. In this respect, the Committee would first refer to its comments on these sections of the IRA in paragraph 63 above. Furthermore, the Committee must once again stress the importance it places upon the right to strike as one of the essential means through which workers and their organizations may promote and defend their economic and social interests (see Digest, op. cit, para. 475). It therefore calls upon the Government to take measures immediately to drop the charges which have been brought against these SFTU officials for having exercised legitimate trade union activity.
    • Dismissals
23. 703. The Committee notes the general allegations of dismissals at the workplace and the specific allegation that the SFTU Assistant General Secretary, Jabulani Nxumalo was dismissed from his job under the pretext of a workplace reorganization. While noting the Government's indication that the dismissal concerns the internal affairs of the company and that no conciliation was sought from the Department of Labour, the Committee recalls that the dismissal of workers on grounds of membership of an organization or trade union activities violates the principles of freedom of association (see Digest, op. cit., para. 702). It therefore requests the Government to take the necessary measures to establish an independent investigation immediately into the dismissal of Jabulani Nxumalo and, if it appears that his dismissal was related to his trade union activity, to take the necessary measures to ensure his reinstatement in his job, if he so desires. It requests the Government to keep it informed of the outcome of this investigation.
    • Additional allegations
24. 704. Finally, the Committee notes with deep concern the new allegations presented by the ICFTU in its communication dated 6 February 1997, particularly as concerns the arrest of numerous SFTU officers and General Council members and the continued detention of the General Secretary, President, Vice-President and Assistant Secretary General. While noting with interest the information provided by the complainant that the SFTU leaders arrested on 31 January and charged under the 1963 Public Order Act have now been released, the Committee considers that it must recall its above conclusions concerning section 70 of the IRA (paragraph 64) and the abusive use of the 1963 Public Order Act (paragraph 78) and stress the importance it attaches to the principle that the detention of trade union leaders or members for reasons connected with their activities in defence of the interests of workers constitutes a serious interference with civil liberties in general and with trade union rights in particular. (See Digest, op cit., para. 71.) It notes the information communicated by the Government in its letter dated 4 March 1997 and intends to examine it at its next meeting.

The Committee's recommendations

1. 705. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee notes the report of the representative of the Director-General, Professor Barney Jordaan, on the mission carried out in Swaziland in October 1996 and thanks him for the work he has accomplished.
   • (b) The Committee would draw the Government's attention to its conclusions concerning the numerous provisions of the Industrial Relations Act which are incompatible with the principles of freedom of association and urges the Government to take the measures necessary in the very near future so that the Act is amended accordingly, giving due consideration to the proposals made by the tripartite Labour Advisory Board. It requests the Government to keep it informed of the progress made in this regard.
   • (c) Noting with concern that section 12 of the 1973 Decree on meetings and demonstrations places important restrictions on the rights of organizations to hold meetings and peaceful demonstrations and can result in serious violation of freedom of association, the Committee urges the Government to take the necessary measures to repeal this section so as to permit trade union organizations to operate freely.
   • (d) As concerns the allegation that a 16 year-old schoolgirl was killed by a stray bullet fired by the police during the January 1996 stay-away, the Committee requests the Government to take the necessary measures to institute immediately an independent inquiry into the matter in order to determine the justification for the action taken by the police, to determine responsibilities and to punish the guilty parties.
   • (e) As concerns the abduction of Mr. Jan Sithole on 29 August, the Committee requests the Government to take the necessary measures to establish an independent investigation into this matter and to keep the Committee informed of the outcome of the investigation.
   • (f) As concerns recent use of the 1963 Public Order Act to ban strike action, the Committee urges the Government to ensure that this Act is amended so that it may no longer be used for the purpose of oppressing legitimate and peaceful strike action.
   • (g) As concerns the new charges filed against Jan Sithole, Richard Nxumalo, Jabulani Nxumalo, Themba Msibi, Barbara Dlamini and the SFTU itself in respect of the January 1996 protest action under section 40 of the 1996 Industrial Relations Act read together with sections 73 and 75, the Committee refers to its conclusions on the incompatibility of these provisions with the principles of freedom of association and calls upon the Government to take the necessary measures immediately so that these charges are dropped.
   • (h) As concerns the dismissal of Jabulani Nxumalo, Assistant General Secretary of the SFTU, the Committee requests the Government to investigate immediately the circumstances surrounding his dismissal and, if it appears that his dismissal was related to his trade union activity, to take the necessary measures to ensure his reinstatement in his job, if he so desires. It requests the Government to keep it informed of the outcome of this investigation.
   • (i) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.

Annex I

1. Report of the direct contacts mission to Swaziland
2. (30 September-4 October 1996)
3. Case No. 1884 I. Introduction
4. In communications dated 23 and 29 May 1996, the International Confederation of
5. Free Trade Unions (ICFTU) submitted a complaint against the Government of
6. Swaziland for violations of trade union rights (Case No. 1884).
7. Furthermore, during the discussion of the application of Convention No. 87 in
8. Swaziland at the 1996 Conference Committee on the Application of Conventions
9. and Recommendations, the Committee noted the Government representative's
10. indication that his Government would welcome a mission from the ILO to visit
11. the country and investigate all the allegations which had been made before the
12. Conference Committee which touched upon a number of elements in the complaint.
13. The Director-General designated Mr. Barney Jordaan, labour law professor at
14. the University of Stellenbosch in South Africa, to carry out the mission,
15. which took place from 30 September to 4 October 1996. Mr. Jordaan was
16. accompanied by Ms. Karen Curtis, senior legal officer in the Freedom of
17. Association Branch and Mr. Ndjonkou, Director of the ILO Office in Pretoria.
18. II. Conduct of the mission
19. During its visit to Swaziland the mission held meetings with the Deputy Prime
20. Minister, the Minister of Labour and Public Service, the Minister of Foreign
21. Affairs and other officials from these Ministries, as well as from the
22. Ministry of Economic Planning and Development. Meetings were also held with
23. the following workers' organizations: Swaziland Federation of Trade Unions
24. (SFTU), Swaziland Federation of Labour (SFL), the Swaziland National
25. Association of Teachers (SNAT), and the Association of Lecturers and Academic
26. Personnel (ALAP). The mission also met with the Federation of Swaziland
27. Employers (FSE), the members of the tripartite Labour Advisory Board, the
28. Police Commissioner and other officers, and members of the Parliament.
29. Finally, the mission also paid a courtesy call to the Resident Representative
30. at UNDP. (See the appendix for a list of persons met.)
31. III. Situation of the cases pending before the Committee prior to the mission
32. The ICFTU's complaint concerned the harassment, assault, threats, arrest and
33. detention of leaders and members of the Swaziland Federation of Trade Unions.
34. The ICFTU alleges specific acts of repression and interference by the police
35. and government authorities in trade union rallies and meetings, as well as in
36. general "stay-aways" and the arrests of several trade union leaders and
37. members. Finally, the ICFTU also complains of several provisions of the
38. Industrial Relations Act of 1996 which violate the principles of freedom of
39. association. In particular, the ICFTU complains about provisions which:
40. prohibit federations from calling industrial action and impose penal sanctions
41. for any violation; broadly define essential services; empower the
42. Attorney-General to apply for a declaratory order to stop a strike which
43. interferes with the national interest; grant unappealable authority to the
44. Labour Commissioner to suspend organizations; restrict the role of federations
45. to offering advice and services; prohibit a union official from holding more
46. than one position and bans them from holding office in a political party.
47. IV. Information obtained during the mission
48. Background
49. The ILO draft legislation
50. During 1989 the Government of the Kingdom of Swaziland contacted the
51. International Labour Office to seek assistance in the revision of certain
52. provisions of the Industrial Relations Act, 1980. The expert engaged by the
53. Office to conduct the revision submitted a draft statute to the Government in
54. October 1991. Her proposals, while in principle acceptable to the Swaziland
55. Federation of Trade Unions (SFTU), were rejected by the Swaziland Federation
56. of Employers (SFE).
57. The Wiehahn Commission report
58. During 1992 the Government appointed a commission of inquiry into industrial
59. relations in Swaziland, headed by Professor N. Wiehahn and ultimately assisted
60. by two assessors, representing the SFE and the SFTU respectively, upon the
61. insistence of the social partners that they participate in the exercise. The
62. commission indicates in its report that, while the ILO draft legislation had
63. given rise to the perception that existing legislation, in particular the
64. Industrial Relations Act, should be replaced by new legislation, the unanimous
65. view of the Government and the social partners was that existing laws should
66. be retained and amended with a view to updating them to present-day
67. requirements and developments.
68. On specific issues previously raised by the Committee of Experts on the
69. Application of Conventions and Recommendations, the commission took the
70. following positions concerning the 1980 Industrial Relations Act in its
71. report: the system of industry unions was maintained on the grounds that the
72. Labour Commissioner's right of refusal to register a union if he or she is
73. satisfied that another registered organization is sufficiently representative
74. is more flexible than the ILO Committee of Experts has interpreted it to be
75. and should rather be read to mean that the Commissioner actually may register
76. more than one organization in any industry and, in any event, the applicant
77. organization has the right to appeal (it was also noted by the mission that
78. this provision, retained in the new Act, was not among those complained of by
79. the workers' organizations on the Labour Advisory Board (but see paragraph
80. 34); restrictions on federations in the 1980 Act should be repealed; the
81. requirement of prior approval for affiliation to an international organization
82. should be repealed; the objectives of organizations should be set out in their
83. respective constitutions and not by law; the minister's power to refer a
84. dispute to compulsory arbitration when it constitutes a threat to national
85. interest should be retained; teachers should be removed from the list of
86. essential services; compulsory dispute settlement should be provided in the
87. case of essential services; the minister's power to amend the list of
88. essential services should be subject to consultation with the tripartite
89. Labour Advisory Board; only those services of a civil capacity which are truly
90. essential should be classified as such; sympathy strikes should be unlawful;
91. strike ballots, under the supervision of a mutually acceptable independent
92. person, should be required and a majority of the employees concerned must
93. support the action.
94. The commission's report, submitted in November 1993, was not endorsed by the
95. representative from the SFTU, Mr. Jan Sithole. Mr. Sithole told the mission
96. that his refusal to endorse the recommendations was motivated by the fact that
97. most of the commission's interviews were conducted in his absence while he
98. attended the 1993 Conference of the ILO. The report indicates that the SFTU's
99. substantive objections to the commission's recommendations concerned the
100. absence of recommendations on the following points: the power of the
101. Industrial Court to order reinstatement of a dismissed employee; compulsory
102. paid maternity leave; trade union participation in retrenchment procedures, as
103. well as any restructuring or rationalization of enterprises.
104. The 27 demands
105. In October 1993, the SFTU submitted to the Government a list of issues for
106. negotiation which ultimately led to a mass stay-away in support of these
107. demands in February 1994. Following the request of their members, the SFTU
108. then presented the following 27 (ultimately consolidated into 26) demands to
109. the Government: mandatory reinstatement of unfairly dismissed employees;
110. replacement of the 26-week ceiling as compensation in the event of unfair
111. dismissal with the ILO draft proposal of 166 to 226 weeks; recognition of 1
112. May as a public holiday; tax exemption for terminal benefits; one month's paid
113. maternity leave; prohibition on contracting-out services; an increase in the
114. enterprise security deposit from one month to three months; proof of the
115. economic decline of an enterprise before retrenchment is permitted; conversion
116. of the national provident fund to a pension scheme; seasonal employees should
117. qualify for pension benefits; affirmative action ("localization") should be
118. recognized as official policy; extension of the right to strike to all workers
119. except those in essential services as strictly defined, including determining
120. the workers who are essential and not globally speaking of the services;
121. introduction of a national minimum wage; proper accommodation for the police
122. and their families; ending the brutalization of street vendors; stopping
123. privatization of the water services; no tax increase in that fiscal year;
124. employees elected to Parliament should not be forced to resign from their jobs
125. and should continue to be paid by their employer; the Government should
126. guarantee that journalists are not victimized; the creation of an economic
127. forum with representation from the social partners to deal with all economic
128. issues of national importance; workers' participation in constitutional reform
129. processes through their own nominated representatives; establishment of a
130. national social security scheme; equality of opportunity and treatment for
131. female employees; bus-owner exemption from sales tax on their vehicles;
132. employers should use Swaziland College of Technology (SCOT) for their training
133. needs; and the ILO draft legislation should be submitted to the Labour
134. Advisory Board with a view to presenting it to Cabinet as a basis for a new
135. Industrial Relations Act.
136. Tripartite task force report on the 27 demands
137. Subsequently, the Government entered into discussions with the SFTU which led
138. to the establishment of a tripartite task force in March 1994 to consider the
139. federation's demands. In its report issued in June, the task force made
140. unanimous recommendations on the following 21 points: officializing of the May
141. Day holiday; employers should not contract out where this is motivated by
142. discrimination and should consult workers concerning this practice; tax
143. exemption for terminal benefits will be pursued through the Tax Advisory
144. Board; establishment of an insurance scheme in the spirit of Convention No.
145. 173 concerning the protection of workers' claims in employer insolvency;
146. cooperation and consultation between the social partners concerning
147. retrenchment in the spirit of Convention No. 158 on termination of employment;
148. conversion of the national provident fund to a pension scheme; establishment
149. of a "localization" committee; "essential services" should be redefined in the
150. light of relevant labour Conventions; an expert should study the question of a
151. national minimum wage; police and their families should be adequately
152. accommodated; a policy should be established for the protection of street
153. vendors; the social partners should be consulted concerning any intention to
154. privatize the water services; the Government should consult the social
155. partners when considering any tax increase; journalists should not be
156. victimized for pursuing their calling; the Government should seriously
157. consider the creation of a tripartite economic forum; all social partners
158. should be represented by their own nominees when a national constitutional
159. forum has been set up; the establishment of a national social security scheme
160. in line with ILO Conventions; any discrimination against women in the
161. workplace should be discontinued; the Government should address the concerns
162. of bus drivers; SCOT should be the first choice for training if the facilities
163. are available; the ILO draft legislation and the above-mentioned Wiehahn
164. report should be placed before the Labour Advisory Board as working documents
165. for any future amendments to the country's legislation.
166. The employers fundamentally disagreed with the workers' demands as concerns
167. reinstatement of unfairly dismissed workers, the proposal of 166 to 226 weeks'
168. compensation for unfair dismissal, maternity leave paid by the employer (but
169. they agreed to the Government's consideration of a social security scheme as a
170. long-term solution), the qualification of seasonal employees for pensions
171. benefits (which should be handled at the plant and Wage Council levels),
172. employers should not be obliged to pay the salary of employees who have become
173. members of Parliament (but they did indicate that the Government should devise
174. a scheme for balancing the financial equation for an employee forced to leave
175. employment because he or she is elected to Parliament).
176. The Government responded to the report towards the end of 1994. It expressed
177. its support for most of those recommendations over which members of the task
178. force had reached consensus. It reserved its position in respect of those
179. matters over which no consensus could be reached but indicated that it would
180. formulate its own proposals in the form of amendments to the relevant
181. legislation, including the 1980 Industrial Relations Act.
182. The proposed Industrial Relations Bill
183. During the first quarter of 1995, following a further national strike over its
184. failure to act on the SFTU's 27 demands, the Government published a draft
185. Industrial Relations Act for comment and later introduced it into Parliament.
186. According to the Ministry of Labour and Public Service, the Bill was inspired
187. by the recommendations of the Wiehahn Commission, the ILO draft and its own
188. research findings. The social partners were not consulted when the Bill was
189. drafted. The Bill (later to become law) did actually respond to some of the 27
190. demands put forward by the SFTU. For example, the Bill addressed the question
191. of reinstatement for unfair dismissal, increased the ceiling for compensation
192. of unfair dismissal from 26 weeks to 24 months, and deleted the teaching
193. sector from the list of essential services. On the other hand, however, the
194. Bill introduced a number of restrictions on trade union rights, particularly
195. as concerns the rights of federations to engage in legitimate trade union
196. activities, which had not at all been the subject either of the ILO draft or
197. the discussions of the Wiehahn Commission.
198. The tripartite forum and Protocol on the draft legislation
199. After the Bill had already been introduced into Parliament, but before it
200. reached the Senate, further talks were held between the Government and the
201. social partners, the latter being upset at not being consulted on the Bill
202. prior to its submission to Parliament and largely in disagreement with a
203. number of the Bill's basic provisions. This led to the establishment of a
204. tripartite forum consisting of representatives from the Government, the SFTU,
205. the SFE and the Swaziland Federation of Labour (SFL). (Trade unions that were
206. not affiliated to either the SFTU or the SFL, for example, the National
207. Teachers' Union, were not represented in the forum.) The forum adopted a
208. resolution on 14 July 1995 which read as follows:
209. The Employers and Workers (should) identify, as soon as possible, those
210. aspects of the Industrial Relations Bill currently before Parliament, which
211. are unacceptable to them and then meet in a tripartite forum to work out and
212. agree amendments which are acceptable to all parties so that the Government
213. would, after due consideration, mandate the Minister of Labour and Public
214. Service to introduce them when the Bill gets to Senate; provided that should
215. Cabinet find any amendments unacceptable to them they will refer such
216. amendments back to the tripartite forum, together with their recommendations,
217. for the forum's reconsideration.
218. It was also agreed that members nominated by the parties would be authorized
219. by their principals to negotiate with a mandate to make decisions and conclude
220. agreements.
221. Pursuant to the resolution, the social partners during August 1995 identified
222. and agreed on a series of amendments to the Bill. Their proposals were
223. subsequently submitted to the tripartite forum, which, after a series of
224. meetings and with the assistance of mediators, produced a Protocol on 29
225. September 1996 containing 65 proposed amendments to the Bill which were
226. submitted to Cabinet at the beginning of October 1995. Of these, 62 were
227. unanimously supported by members of the forum and the parties agreed to
228. disagree on three points. One point was reserved for Cabinet consideration:
229. the workers and employers jointly maintained that the section prohibiting
230. protest action or mass stay-aways called by federations should be deleted,
231. whereas the government representatives felt that it should remain. The other
232. points of disagreement concerned: a proposal to limit the legislative
233. requirements for the contents of an organization's constitution, transferring
234. many of the numerous elements to a code of practice; and the government team
235. disagreed with the proposal that national interests should be defined only in
236. so far as they concerned essential services and that the Minister should not
237. be able to make ex parte applications, reasoning that such matters should be
238. left to the courts.
239. Some compromises were obviously made as certain points do deviate from the
240. position taken by the workers in their 27 demands. For example, the workers
241. agreed to permit greater flexibility concerning compensation for unfair
242. dismissal, setting a minimum of six months and a maximum of 24 months and, in
243. questions of reinstatement, providing that the court take account of a number
244. of factors, including the practicability for the employer to comply with a
245. reinstatement award. Other unanimous proposals, however, included: an
246. expansion of the mandate of the Labour Advisory Board, removal of
247. disqualification from holding office in an organization due to criminal
248. conviction or for holding office in a political party; removal of a large
249. number of penal sanctions; deletion of the requirement to consult with the
250. minister before making applications to international bodies; deletion of the
251. compulsory balloting requirement (felt better placed in a code of practice);
252. deletion of the limitation on non-occupational activities of organizations and
253. federations; revision of the definition of essential service so as not to
254. include all civil servants, but only those truly considered essential;
255. inclusion of Swaziland Prison Service as an essential service, but its
256. deletion from the categories excluded from the Bill.
257. Despite the terms of the resolution of the tripartite forum of 14 July 1995,
258. the Bill was introduced into Senate without the amendments proposed in the
259. Protocol. The reason given to the direct contacts mission by the Minister of
260. Labour and Public Service for the failure to include the provisions of the
261. Protocol, was that it was the duty and prerogative of Parliament, not the
262. social partners, to legislate. The parties to the tripartite forum, including
263. government's representatives, expressed their dismay at this turn of events in
264. a statement issued on 17 October 1995 in which the Government's good faith was
265. questioned. The parties to the forum in the statement also reaffirmed their
266. full commitment to the Protocol and expressed the view that the Protocol
267. "still offers the best way forward in developing industrial relations
268. legislation". On that same day, a document was tabled expressing the Cabinet's
269. reaction to the Protocol which substantially rejected the proposals.
270. The Industrial Relations Act of 1996
271. The Bill as introduced by the Minister of Labour and Public Service (without
272. the proposed amendments) was eventually passed by Senate. In response to this,
273. and before the Bill had been assented to by the King of Swaziland, the SFTU
274. called for a national strike to commence on 22 January 1996. However, the King
275. assented to the Bill on Friday, 19 January. The Bill became law on Saturday,
276. 20 January 1996 in terms of an Extraordinary Gazette published on that day. On
277. 22 January 1996, after the commencement of the strike, the general secretary,
278. assistant general secretary and president of the SFTU were arrested and
279. charged under section 40 of the new Industrial Relations Act (IRA) which
280. prohibits mass stay-aways called by federations, read with sections 73 and 75
281. which prohibit strikes while hearings are pending and in essential services
282. respectively. Perhaps due to some uncertainty about whether the IRA was in
283. force at the time of the action, these charges were replaced by charges under
284. an Extraordinary Gazette published on 18 January 1996 which declared the
285. strike to be a mass boycott, thus making participation therein an offence in
286. terms of the provisions of the Public Order Act of 1963. These charges were
287. withdrawn and they were released on 25 January only to be charged again in
288. March 1996 (see paragraph 23).
289. A joint negotiating forum, including representatives from the Government and
290. the social partners, met on 29 February 1996 where it was resolved to itemize
291. the concerns of the SFTU into three categories, i.e. constitutional,
292. legislative and industrial relations issues. In terms of the resolution,
293. constitutional issues were to be referred to a constitutional review committee
294. (largely concerning the call for constitutional reform in the 27 demands and
295. the repeal of the 1973 Decree banning political parties), whereas legislative
296. and industrial relations issues (legislative aspects of the 27 demands plus
297. the tripartite Protocol) were referred to the Labour Advisory Board. It was
298. agreed that these issues were referred to the Labour Advisory Board with the
299. understanding that it would generate amendments to the Industrial Relations
300. Act on the Protocol model and that such amendments would be given priority
301. status before the Parliament through a "certificate of urgency".
302. The Labour Advisory Board proposed amendments to the IRA
303. The Labour Advisory Board subsequently submitted proposals for amendments to
304. the Industrial Relations Act of 1996 to the Minister of Labour and Public
305. Service during March 1996. Its proposals were substantially similar to those
306. contained in the tripartite Protocol and did not deviate from its spirit.
307. Despite the agreement reached by the joint negotiating forum, the proposals of
308. the Labour Advisory Board have to date not been introduced into Parliament.
309. Allegations of harassment of trade unionists
310. A number of allegations have been made concerning the harassment of trade
311. unionists and the suppression of trade union activities by the Government of
312. Swaziland. In communications dated 23 and 29 May 1996, the ICFTU submitted a
313. complaint to the ILO which, besides alleging violations of trade union rights
314. through the enactment of the 1996 Industrial Relations Act, refers to the
315. following acts of harassment: violent police interference in mass stay-aways,
316. leading on one occasion to the death of a young girl; undue police
317. interrogation and harassment of SFTU leaders, including non-communication of
318. the arrested leaders' whereabouts to their legal representatives; police
319. presence at SFTU meetings; anonymous death threats to an SFTU leader; brief
320. kidnapping of an SFTU leader; arrest of trade unionists; worker shot in leg
321. during a factory strike. The following additional information concerning these
322. allegations was obtained by the mission.
323. As already indicated in paragraph 19 above, the leadership of the SFTU were
324. arrested on 22 January 1996. Although they were released on 25 January after
325. criminal charges against them had been withdrawn, the Government instituted a
326. civil claim for damages against the union and its office-bearers for damages
327. resulting from the strike. Further criminal charges brought under the Public
328. Order Act of 1963 were brought in March 1996. These charges are still pending.
329. On 22 January, while the strike was still in progress, a confrontation ensued
330. between strikers and members of the armed forces during which a 16-year-old
331. schoolgirl was fatally shot. There is a dispute between the Government and the
332. SFTU over responsibility for the incident and the circumstances giving rise to
333. it. Calls by the SFTU for an independent inquiry into the incident have not
334. been heeded by the Government and a police investigation into the matter has
335. been opened instead. During the course of the strike police used tear-gas to
336. disperse strikers. Generally, according to the SFTU, members of the police
337. attend and monitor SFTU meetings. Allegations were also made of death threats
338. against members of the SFTU executive.
339. In discussions with members of the direct contacts mission, the Swaziland
340. Commissioner of Police responded to these allegations in the following terms:
341. (a) Police harassment/overuse of tear-gas
342. The Commissioner stated that tear-gas was only used on two occasions when the
343. protest action was out of control, shops were being vandalized, vehicles
344. overturned and bystanders assaulted by persons participating in the strike.
345. Furthermore, the Police Commissioner indicated that police were also the
346. object of SFTU harassment and that two police officers were assaulted by SFTU
347. members because they were considered to be spies. This incident is apparently
348. still under investigation.
349. (b) The killing of the 16-year-old schoolgirl
350. The Commissioner stated that investigations were still under way to try and
351. determine responsibility for her death. The incident which led to her death
352. occurred at night in the course of a confrontation between police and strikers
353. during which car windows were smashed and shots were fired at police.
354. According to the Commissioner, a pathologist's report established that the
355. girl had been killed by a bullet with a different calibre to that normally
356. used by the police. The Commissioner added that he did not understand the
357. SFTU's exploitation of this affair since the girl concerned was not a worker,
358. but rather a student. The police investigation into this affair is still
359. pending.
360. (c) Movement of arrested SFTU leaders to various police stations after their
361. arrest without providing the information to their lawyers
362. The Commissioner confirmed that the SFTU leaders were moved to different
363. police stations for their own safety and to avoid any violent confrontations
364. at the police stations. The fact that this information was not communicated to
365. the legal representatives was clearly bad communication, but was not
366. intentional.
367. (d) Death threats against members of the SFTU executive/kidnapping
368. The Commissioner stated that he was unaware of any death threats allegedly
369. made against members of the SFTU executive and that no complaints in this
370. regard have been lodged with the police. He was aware of the alleged
371. kidnapping of Mr. Jan Sithole, general secretary of the SFTU, which he
372. ascribed to criminals. Documents belonging to the SFTU were later found by
373. police in the area where the abductors were thought to have taken refuge. He
374. gave the assurance that the matter is still under "serious" investigation and
375. that it might take another six to 12 months to resolve.
376. (e) Attendance at union and trade union federation meetings
377. The Commissioner was of the opinion that members of the police were entitled
378. to attend trade union and trade union federation meetings to ensure that law
379. and order was maintained. The Commissioner also stated that it was not the
380. policy of his department to interfere in legitimate trade union activities but
381. that he was bound by the provisions of the 1973 Decree (which suspended the
382. Bill of Rights and outlawed opposition political groupings) and the Public
383. Order Act, 1963, to intervene where the situation demanded it. This included
384. the prohibition of meetings when it was considered that law and order would be
385. threatened or where it involved political groupings. He added that SFTU
386. meetings were often not trade union meetings as such in his opinion, but
387. rather called on behalf of the opposition banned political party for its own
388. agenda.
389. (f) Worker shot in leg during a factory strike
390. The Commissioner stated that the worker referred to in the allegations who was
391. shot in the leg was not actually shot by a bullet but rather by a tear-gas
392. canister. Tear-gas had become necessary, according to the police because the
393. workers wanted to "hijack" the management and they were armed with sticks.
394. V. Results obtained and assurances given by the authorities and prospects for
395. the future
396. Political and industrial relations reform
397. A constitutional review process was announced by the King of Swaziland earlier
398. this year. One of the matters that has been placed on the agenda is the repeal
399. of the 1973 Decree, which effectively suspended the Bill of Rights and banned
400. opposition political parties. While not appreciating that the individual of
401. their organization to represent them was not of their own choice but directly
402. appointed by the Government, the workers' organizations invited nevertheless
403. agreed to participate in the constitutional review committee established in
404. the hope that some progress could still be achieved.
405. Representatives of the Government with whom members of the mission held
406. discussions stated that the Government respected the rights of workers and
407. trade unions, but that a clear distinction should be drawn between political
408. and industrial relations issues. Trade unions, according to the Government,
409. should therefore not engage in politics, make political demands or share
410. platforms with political groupings demanding a multi-party system of
411. government. The view was expressed by representatives of the Government that
412. the 27 demands of the SFTU and the industrial action organized by it since the
413. tabling of the demands are merely a smoke-screen for a political agenda.
414. While the 27 demands appear clearly to be of a socio-economic nature, the SFTU
415. has admitted that it also considers it a civic duty to call for the repeal of
416. the oppressive 1973 Decree and free democracy in the country. Furthermore, it
417. was the view of the SFTU and other non-government groupings that matters which
418. are sometimes regarded as purely political by the Government are in fact of a
419. socio-economic nature and therefore of legitimate concern to workers. It was
420. also pointed out that representatives of the Government and the social
421. partners had already, at their meeting on 22 February 1996 (see paragraph 20
422. above), agreed to separate what were perceived to be political issues from
423. industrial relations and legislative issues, with the former being channelled
424. to the constitutional review process and the remainder being referred to the
425. Labour Advisory Board for discussion. It was also apparent from discussions
426. held with the SFTU, SFL and SFE that there is common cause among them about
427. the need for amendments to the Industrial Relations Act of 1996, not only to
428. accommodate the proposals of the tripartite Protocol and the Labour Advisory
429. Board in the short term, but also any other amendments which may be required
430. to ensure that the provisions of the Act complied with Swaziland's obligations
431. under ratified ILO Conventions. These parties also stated that their agreement
432. as contained in the tripartite Protocol and the proposals of the Labour
433. Advisory Board did not specifically address the extent to which the provisions
434. of the Industrial Relations Act of 1996 complied with ratified ILO Conventions
435. and should not be construed as an acceptance that the Act, even if amended to
436. incorporate their proposals, complies with such Conventions. The members of
437. the Labour Advisory Board did, however, express to the mission a desire to be
438. guided in this regard by the ILO.
439. While the Government has engaged in consultations with the social partners on
440. various occasions since 1993 when the SFTU first presented its 27 demands, a
441. great deal of mistrust exists between them (i.e. the social partners and the
442. Government). This stems from what both the workers' and employers'
443. organizations regard as the Government's lack of good faith in unilaterally
444. placing before Parliament an Industrial Relations Bill without consulting the
445. social partners and which did not have their support and the Government's
446. subsequent failure to implement, or even act upon, the amendments contained in
447. the tripartite Protocol and the proposals of the Labour Advisory Board.
448. In a policy statement to Parliament, delivered on 16 August 1996, the Prime
449. Minister stated that he would be inviting the social partners to make
450. suggestions for improvements to the Industrial Relations Act. While some
451. optimism was expressed by certain interest groups that the Prime Minister's
452. statement heralded a new phase of cooperation, others expressed scepticism in
453. view of the fact that the Labour Advisory Board had already submitted its
454. proposals in this regard to the Government without any sign of action.
455. Government representatives with whom members of the mission held discussions
456. indicated the Kingdom of Swaziland's commitment to its obligations as a Member
457. of the ILO and expressed the desire for assistance from the ILO in promoting
458. dialogue and understanding between the social partners, and to be given
459. guidance by the Organization to ensure that the provisions of its legislation
460. complied with Conventions to which the Kingdom is a party. This sentiment was
461. also strongly endorsed by members of a parliamentary select committee (which
462. included members of Senate) who indicated that Parliament was willing to
463. consider any proposals brought before it by the Minister of Labour. One member
464. added that Parliament could consider any proposals, even those which, rather
465. than being made through the Government, were brought before it by the social
466. partners themselves. However, the Minister of Labour and Public Service, the
467. deputy Prime Minister and the Minister of Foreign Affairs all indicated that
468. any changes to legislation proposed by the ILO would have to take account of
469. Swaziland's domestic circumstances.
470. A need was also expressed by the Department of Labour for technical
471. assistance, for example, in regard to the establishment of dispute resolution
472. mechanisms and training of conciliators, mediators and arbitrators, in order
473. to implement the machinery provided for in the new Act.
474. VI. Conclusions
475. There is considerable distrust between the Government of Swaziland and its
476. private sector social partners as a result of the Government's unilateral
477. decision to re-draft the Industrial Relations Act and its subsequent refusal
478. to introduce amendments to the Act as proposed by the Labour Advisory Board.
479. No convincing explanation could be given by government representatives for
480. this refusal.
481. The current political dispensation in Swaziland is intolerant of any trade
482. union activity that is not directly related to workers' immediate shop-floor
483. and labour relations needs. Government accordingly tends to take a very narrow
484. view of the issues that trade unions and federations may legitimately concern
485. themselves with. The result is that even demands and industrial activity aimed
486. at the promotion of workers' legitimate socio-economic interests, are
487. generally regarded as politically motivated and, therefore, unlawful in terms
488. of the Industrial Relations Act and other legislation.
489. Despite the above, all the social partners, including Government, have
490. expressed a desire for guidance and technical assistance from the ILO in
491. promoting positive dialogue and shaping industrial relations legislation. It
492. is believed that the Organization can make a positive contribution by
493. encouraging the Government of Swaziland to effect amendments to the IRA as
494. proposed by the LAB; by indicating which other aspects of the Act require
495. amendment in order to ensure compliance with ILO standards; by providing
496. technical assistance in the re-drafting of the legislation and the effective
497. implementation of the dispute resolution mechanisms provided for in the Act
498. (i.e. mediation and arbitration); and by offering suggestions about how the
499. role and functions of the LAB can be strengthened.
500. The mission was not in a position to ascertain whether there had been any
501. police involvement in death threats against trade unionists; the abduction of
502. Mr. Jan Sithole; or the killing of a schoolgirl. As far as the latter is
503. concerned, it may have been advisable for the Government to appoint an
504. independent inquiry into the matter as the police investigation lacks
505. legitimacy. The mission was also left with the impression that other incidents
506. of police interference in trade union affairs (e.g. attendance at trade union
507. meetings) can be ascribed to the existence of legislation such as the Decree
508. of 1973 and the Public Order Act, 1963.
509. The members of the mission would like to express their appreciation to the
510. Government of Swaziland, the SFTU, the SFL, the SFE and other parties with
511. whom discussions were held, for their cooperation.
512. List of persons met
513. Government officials
514. Ministry of Labour:
515. The Hon. A.H.N. Shabangu, Minister
516. Mr. S.B. Ceko, Principal Secretary
517. Mr. J.M. Mndzebele, Deputy Commissioner of Labour
518. Mr. J.L. Nkhambule, Assistant Commissioner of Labour
519. Prime Minister's office:
520. H.E. S.S. Nxumalo, Deputy Prime Minister
521. Mr. F. Buckam, Secretary to Cabinet
522. Ministry of Foreign Affairs:
523. The Hon. A.R.V. Khoza, Minister
524. Economic Planning and Development:
525. Mr. E.M. Hlophe, Permanent Secretary
526. Workers' organizations
527. Swaziland Federation of Trade Unions (SFTU):
528. Jan J. Sithole, Secretary General
529. Richard Nxumalo, President
530. Themba J. Msibi, Vice-President
531. Barbara N. Dlamini, Second Assistant Secretary General
532. Mxolisi Mbata, Treasurer
533. Sphiwe Hiopne, Second Treasurer
534. Afrika Magongo, Trustee
535. Swaziland Federation of Labour (SFL):
536. Sam Dlamini, Acting President
537. Vincent Ngongwane, Secretary General
538. Reginald Simelane, Treasurer
539. Dan Mango, First Assistant Secretary General
540. Patrick Longa, Trustee
541. Jimson Gwebu, Vice-Treasurer
542. Enock Radebe, Executive member
543. Swaziland National Association of Teachers (SNAT):
544. Meshack Masuku, President
545. Pheneas Magagula, Vice-President
546. Musa P.S. Dlamini, Secretary General
547. Clifford Magagula, Deputy Secretary General
548. Evart Dlamini, Organizing Secretary
549. Zodwa Simelane, Editor
550. Poppy Hlatshwako, Recording Secretary
551. Association of Lecturers and Academic Professionals (ALAP):
552. Mhlangano Mgrhelela
553. Cyril Matzebula
554. Leonard Ndlovlu
555. Mandla Mlipha
556. Bonginkosi Sikhondje
557. Nomthetho Simelane
558. Bongile Putsoa
559. Employers' organizations
560. Swaziland Federation of Employers (SFE):
561. Muhawu Maziya, Deputy Executive Director
562. G.J. Manana, Human Resources Manager
563. Dumsane J. Dlamini
564. R.H. Howe
565. Labour Advisory Board (LAB):
566. J.M. Mndzebele, Chairman
567. Ernest Tsabedze, Secretary
568. Jan J. Sithole (SFTU), Member
569. T. Msibi (SFTU), Substitute Member
570. Rowen Howe (SFE), Member
571. D. Dlamini (SFE), Member
572. M. Maziya (SFE), Member
573. D. Mango (SFL), Member
574. Ndzimandze, Independent member
575. P.L. Magagula, Independent Member
576. Police
577. Mr. E.E. Hillary, Commissioner of Police
578. Mr. B. Mavuso, Assistant Commissioner of Police
579. Mr. I. Magagula, Assistant Commissioner of Police
580. Mr. S. O'Connor, Assistant Commissioner of Police
581. Mr. J.D. Dlamini, Acting Assistant Commissioner of Police
582. Mr. E.M. Niwakati, Acting Assistant Commissioner of Police
583. Parliament
584. C.M. Masuku, MP
585. Dr. P.K. Dlamini, Senator
586. M.N. Dlamini, MP
587. W. Msibi, MP
588. K.S.G. Mvubu, MP
589. Dr. M.P. Makhubu (Senator)
590. I.S. Shabangu, MP
591. R.D.N. Fanourakis, MP
592. V.T. Thwala, MP
593. Musa Nkhambule, MP
594. S.M. Shongwe, MP
595. M.D. Ward, Senator
596. M.R. Dlamini, MP
597. M. Temple, Senator
598. W. Bennett, Senator
599. P.V. Dlamini, MP
600. Dr. M. Mdziniso, Senator
601. D. Masango, MP
602. Annex II
603. Relevant sections of the 1996 Industrial Relations Act
604. Part II. Establishment and administration of Industrial Court
605. Jurisdiction
606. 5. (1) The court shall have exclusive jurisdiction to hear, determine and
607. grant any appropriate relief in respect of any matter properly brought before
608. it including an application, claim or complaint or infringement of any of the
609. provisions of this Act, an employment Act, a workmen's compensation Act, or
610. any other legislation which extends jurisdiction to the court in respect of
611. any matter which may arise at common law between an employer and employee in
612. the course of employment or between an employer or employers' association and
613. an industry union, between an employers' association, an industry union, an
614. industry staff association, a federation and a member thereof.
615. (2)(a) An application, claim or complaint may be lodged with the court by or
616. against an employee, an employer, an industry union, an industry staff
617. association, an employers' association, a federation, the Commissioner of
618. Labour or the Minister.
619. Part IV. Employee, staff and employer organizations, federations and
620. international organizations
621. Constitution
622. 26. The constitution of an organization shall include the following -
623. (a) the name of the organization and the undertaking or industry in which its
624. activities on behalf of employees will be carried on;
625. (b) the offices in the organization among which shall be the offices of
626. chairperson, secretary and treasurer;
627. (c) provision for an election by secret ballot to all offices at least once
628. every two years, and for the naming of a temporary replacement if an
629. office-holder becomes disqualified or incapacitated from holding office;
630. (d) provision for a general meeting open to all members at least once a year
631. and for the giving of at least twenty-one days' notice of that meeting to all
632. members;
633. (e) a provision that any member may propose a resolution or question an
634. officer at a general meeting;
635. (f) a provision that -
636. (i) the general meeting shall be the form for deciding the policies of the
637. organization and for reviewing the officers' conduct of the organization's
638. affairs;
639. (ii) the organization's officers and representatives are to be bound by
640. decisions of a general meeting;
641. (iii) a general meeting may authorize a committee of its members to act on its
642. behalf on all or any of the matters referred to in this paragraph for a
643. specific period;
644. (g) the fees and other subscriptions payable, and the maximum period of
645. arrears permitted before a member loses his good financial standing;
646. (h) provision that subject to the terms of this Act and to the institution of
647. the organization, only a fully paid up member may vote in the election of
648. officers, nominate a candidate for any office, be nominated for or be elected
649. to any office, or express his views on candidates and issues;
650. (i) the grounds on which an officer or member may be suspended or expelled
651. from office or from membership, each ground being specific;
652. (j) the procedure for suspension or expulsion from office or from membership,
653. including provision that the affected officer or member be fully informed in
654. writing of the allegations against him, that he shall have a reasonable
655. opportunity to meet those allegations, and that he shall have a right of
656. appeal to a special or general meeting of the organization;
657. (k) provision for the keeping of full and accurate accounts by the treasurer
658. or other appropriate officer, for the annual audit of those accounts by a
659. suitable and competent person appointed by the organization who shall not be a
660. member of that organization, and for the availability to all members of a
661. full, audited annual statement of account;
662. (l) provision for the banking and investment of the organization's funds;
663. (m) provision for the paying out of the organization's funds, including the
664. authority to sign cheques;
665. (n) provision for terms and conditions of service including the payment of the
666. expenses and salaries, if any, of officers and employees of the organization
667. and provision that no other payments may be made to any officer or employee
668. without the prior approval of a general meeting;
669. (o) the conditions under which a member may become entitled to any financial
670. benefit provided by the organization;
671. (p) provision for amending the constitution;
672. (q) the duration of its financial year;
673. (r) provision for the appointment of trustees;
674. (s) the inspection of the register of members and other books of the
675. organization by any member;
676. (t) provision for informing members of the progress and result of any
677. negotiations entered into by the organization aimed at the conclusion,
678. alteration, amendment or abandonment of any collective agreement to which the
679. organization is, or is to be, a party;
680. (u) the manner of dissolving the organization.
681. Powers of Commission of Labour concerning constitutions and returns of
682. organizations and federations
683. 30. (1) If the Commissioner of Labour is of the bona fide opinion that an
684. organization's or federation's constitution, or any amendment thereto, or any
685. return required under this Act does not comply, in whole or in part, with this
686. Act, the Commissioner shall forthwith and in writing advise the organization
687. or federation concerned of his opinion and direct it to have the matter
688. rectified in a specified manner.
689. (2) In the event of the organization or federation concerned failing to comply
690. with section 29 and with the Commissioner of Labour's directive in terms of
691. subsection (1) within 30 days, the Commissioner of Labour may order suspension
692. of the organization or federation.
693. (3) Before acting under subsection (2), the Commissioner of Labour shall give
694. consideration to any representation, including counter proposals to a
695. directive under subsection (1), made by the organization or federation.
696. (4) The Commission of Labour shall after the expiry of 30 days' suspension
697. period, deregister the organization or federation concerned by notice
698. published in the Gazette, and newspapers circulating in Swaziland.
699. (5) The Commissioner of Labour may refuse to register the constitution of an
700. organization if satisfied that any other organization, whose constitution is
701. already registered, is sufficiently representative of the whole, or a
702. substantial proportion of the interest in respect of which the applicant seeks
703. registration.
704. Disqualification from holding office, etc.
705. 35. (1) (a) A person shall not at any one time hold office in more than one
706. organization or at any one time hold office in an organization and in a
707. political party or be a Minister, Assistant or Deputy Minister in the
708. Government or be a member of Parliament.
709. (b) A person shall not at any one time hold office in a federation and in a
710. political party or be a Minister, Assistant Minister or Deputy Minister in the
711. Government or be a member of Parliament.
712. Provision for federations
713. 40. (1) Organizations and employers may form, participate in, be affiliated to
714. or join a federation which has as its principal objects the functions of
715. advice, consultation and the provision of services to its members.
716. (2) A federation or an officer thereof shall not act, either by instruction to
717. its members, or by taking instructions from its members in any way that might
718. be held as being in restraint of trade, or in any other manner that might be
719. construed as giving the federation the status or function of an industry
720. union, industry staff association or employers' association and without
721. prejudice to the generality of the foregoing, a federation or an officer
722. thereof shall not call any members of an industry union, industry staff
723. association or any other person who is not a member of the federation, to any
724. of its meetings and give such members or person or take from such members or
725. person any instructions, advices or suggestions or comply, acquiesce or
726. succumb to any demands, orders or instructions from such members or person
727. which may cause or result in a violation of this Act.
728. (3) A federation or officer thereof which causes or incites the cessation or
729. slow down of work or economic activity by an organization or members of such
730. organization or contravenes subsection (2), shall be guilty of an offence and
731. upon conviction, be liable to a fine not exceeding E5,000 (five thousand
732. emalangeni) or to imprisonment for a period not exceeding five years.
733. Consequences for strike or lockout action not in conformity with this Part
734. 69. (1) If any strike or lockout takes place otherwise than in conformity with
735. this Part -
736. (a) an employer instituting lockout action shall be guilty of an offence and,
737. in addition to any other penalty under subsection (2), shall be liable for the
738. unpaid wages, salary and other remuneration that an employee may reasonably be
739. expected to obtain in respect of any period during which the lockout action
740. took place; and an employee may recover such wages, salary or other
741. remuneration as if it were a civil debt, without prejudice to any other manner
742. in which proceedings may be taken for the recovery thereof;
743. (b) an industry union or industry staff association taking strike action shall
744. be guilty of an offence and, in addition to any other penalty under section
745. (2), the court may order the cancellation or suspension of its registration;
746. (c) where an employee takes part in such strike action the employer may treat
747. such action as a breach of contract and may terminate his services summarily.
748. (2) A employer or an industry union or industry staff association guilty of an
749. offence under this section, shall upon conviction, be liable to a fine not
750. exceeding E5,000 (five thousand emalangeni) or in default of payment, to a
751. period of imprisonment not exceeding two years or deregistration of the
752. organization.
753. Minister may apply for order in national interest
754. 70. (1) If any strike or lockout is threatened or taken, whether in conformity
755. with this Act or otherwise, and the Minister considers that the national
756. interest is threatened or affected thereby, he may make application to the
757. court ex parte for an injunction restraining the parties from commencing or
758. from continuing such action, and the court may make such order thereon as it
759. considers fit having regard to the national interest.
760. (2) Where the court upon such an application under subsection (1) makes an
761. order, the parties bound by that order shall immediately refrain from or
762. discontinue such action, and the matter which gave rise to the action shall be
763. deemed to have been referred to the court by the parties concerned for
764. determination.
765. Attorney-General may apply for a declaratory order
766. 71. (1) Notwithstanding the provisions of section 70, where the
767. Attorney-General has reason to believe that a strike or lockout taken or
768. threatened is not in conformity with this Act or any other law, he or she may
769. apply to court ex parte for a declaratory order to that effect.
770. (2) Upon such an order being granted, the parties involved in the strike or
771. lockout shall immediately refrain from or discontinue such action failing
772. which, the Government may take appropriate measures to stop the action.
773. Strike action or lockout prohibited during hearing
774. 72. (1) A person, organization or federation party to a dispute shall not
775. continue, or take strike action or institute a lockout while proceedings in
776. relation to a dispute to which that action relates are pending before the
777. court.
778. (2) A person, organization or federation shall not take strike action or
779. institute a lockout as a result of disagreement or dissatisfaction with an
780. order or award of the court.
781. (3) A person, organization or federation which contravenes subsection (1) or
782. (2) shall be guilty of an offence and on conviction liable to a fine not
783. exceeding E5,000 (five thousand emalangeni) or to a period of imprisonment not
784. exceeding two years.
785. Strike action or lockouts prohibited in essential services
786. 73. (1) Without prejudice to section 69, the provisions of this section shall
787. apply only to employees engaged in essential services as defined in subsection
788. (6) of this section.
789. (2) An employer or employee carrying on or engaged in an essential service
790. shall not take strike action or institute a lockout in connection with any
791. such essential service.
792. (3) An employer who contravenes subsection (2) shall be liable, on conviction,
793. to a fine not exceeding E5,000 (five thousand emalangeni) or to a period of
794. imprisonment not exceeding two years.
795. (4) An employee who contravenes subsection (2) shall be liable, on conviction,
796. to a fine not exceeding E2,000 (two thousand emalangeni) or to a period of
797. imprisonment not exceeding one year.
798. (5) An organization or federation, the holder of an office in an organization
799. or federation or any other person who calls for, or causes strike action to be
800. taken in an essential service, or induces or persuades any worker in such
801. service to take such action shall be guilty of an offence and on conviction
802. liable - (a) in the case of an organization or federation to a fine not
803. exceeding E5,000 (five thousand emalangeni);
804. (b) in the case of the holder of an office in an organization or federation to
805. a fine not exceeding E3,000 (three thousand emalangeni) or to a period of
806. imprisonment not exceeding one year or both, and such person may be
807. disqualified from holding office in any organization for a period of one year
808. after conviction therefor; or
809. (c) in the case of an individual who is not the holder of an office in an
810. organization or federation to a fine not exceeding E2,000 (two thousand
811. emalangeni) or to a period of imprisonment not exceeding one year.
812. 6. (a) For the purposes of this section, essential services, by whomsoever
813. such services are rendered, and whether rendered to the Government or to any
814. other person are -
815. (i) water services;
816. (ii) electricity services;
817. (iii) fire services;
818. (iv) health services;
819. (v) sanitary services;
820. (vi) telephone, telegraph and broadcasting services;
821. (vii) any service in the civil capacity in respect of the Government of
822. Swaziland.
823. (b) The Minister may, after obtaining approval from both Houses of Parliament
824. signified by resolution by notice in the Gazette, amend the list of essential
825. services provided for in paragraph (a).
826. Offence for person or organization or federation which contribute financial
827. assistance or any other assistance to promote or support strike action or
828. lockout in an essential service
829. 74. (1) If, for the purpose of promoting or maintaining the conduct of a
830. strike or lockout in an essential service contrary to this Act, a person
831. directly or indirectly contributes financial assistance or any other
832. assistance to an employer organization or federation which calls or causes
833. such action to be taken or to any employee involved in such action, the person
834. shall be guilty of an offence and on conviction, be liable to a fine not
835. exceeding E5,000 (five thousand emalangeni) or to a period of imprisonment not
836. exceeding five years or to both.
837. (2) A employer, organization or federation which receives any financial
838. assistance or any other assistance for the purpose of supporting a strike or
839. lockout instituted or continued in an essential service contrary to this Act
840. shall be guilty of an offence and on conviction, be liable to a fine not
841. exceeding E5,000 (five thousand emalangeni) or to a period of imprisonment not
842. exceeding five years or to both.
843. (3) An employee or other person who receives any financial assistance or any
844. other assistance for the purpose of supporting a strike or lockout in an
845. essential service contrary to this Act shall be guilty of an offence and on
846. conviction, be liable to a fine not exceeding E5,000 (five thousand
847. emalangeni) or to a period of imprisonment not exceeding five years or to
848. both.
849. Picketing
850. 87. (1) All peaceful picketing by persons involved directly in the dispute
851. giving rise to the picketing shall be lawful except if -
852. ... (e) It is directed at an establishment or an undertaking not directly
853. involved in the dispute.
854. ... (3) Any person, organization or federation which contravenes this section
855. shall be guilty of an offence and one conviction liable to a fine not
856. exceeding E5,000 (five thousand emalangeni) or a period of imprisonment not
857. exceeding two years or to both.
858. Annex III
859. 1973 Decree on meetings and demonstrations
860. Section 12
861. No meetings of a political nature, nor for processions or demonstrations shall
862. be held or take place in any public place unless with the prior consent of the
863. Commissioner of Police and consent shall not be given if the Commissioner of
864. Police has reason to believe that such meeting, procession or demonstration is
865. directly or indirectly related to political movements or other riotous
866. assemblies which may disturb the peace or otherwise disturb the maintenance of
867. law and order.