Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 328, Junio 2002

Caso núm. 2143 (Eswatini) - Fecha de presentación de la queja:: 25-JUN-01 - Cerrado

Allegations: Excessive use of state of emergency laws; detention of trade union leaders and charges against them for participating in peaceful demonstrations

1. 583. The complaint in the present case is contained in a communication dated 25 June 2001 from the Swaziland Federation of Trade Unions (SFTU).
2. 584. In the absence of a reply from the Government, the Committee was obliged to adjourn the examination of this case on two occasions. At its meeting in March 2002 [327th Report, para. 9], the Committee made an urgent appeal to the Government, stating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it could present a report on the substance of the case at its next meeting, even if the information or observations requested had not been received in due time. To date, the Government has not sent any information.
3. 585. 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).

A. The complainant’s allegations

1. 586. In its communication of 25 June 2001, the SFTU explains firstly that one of the main problems with the industrial relations system in Swaziland lies with the fact that the Government has made, over the years, systematic use of the 1973 State of Emergency Decree and the 1963 Public Order Act, which are both state of emergency laws, and this, in order to undermine human and trade union rights. The 1973 State of Emergency Decree, which, according to the complainant, is considered by the Government the supreme law of the country and is still in force today, bans political parties, freedom of association, right to assembly, right of demonstration and introduces a 60-day detention without trial. This has meant that in recent years, workers could only meet if the commissioner of police gave an authorization. Even with such an authorization, the police would attend meetings and had a right to stop them at any time.
2. 587. More precisely, the SFTU provides a list of events which happened in the last few years and where the Government had recourse to the 1973 State of Emergency Decree and the 1963 Public Order Act: banning of trade union meetings by the Prime Minister on 27 October 2000; brutalization of peaceful demonstrators on 13 and 14 November 2000; denial of the right to demonstrate on 7 November 2000; arrest of activists during a demonstration on 10 November 2000 and detention of trade union leaders by the police at the Lobamba police station for nine hours; conditional banning of union meetings in December 2000 by the Prime Minister, the conditions being that the police should authorize the meeting and attend it, with a view to stopping it if it considered that the issues being discussed seemed political.
3. 588. The SFTU further alleges that in January 2001, the Government pressed charges against six trade union leaders for having led and participated in the peaceful demonstration of 13 and 14 November 2000. They are: Jan Sithole, secretary-general (SFTU); Musa Dlamini, secretary-general (SNAT/teachers); Phineas Magagula, president (SNAT/teachers); Elliot Mkhatshwa, vice-president (SFTU); Quinton Dlamini, secretary-general (SNACS/civil service) and Bonginhlanhla Gama, executive member (SNAT/teachers). The bail conditions for all the above individuals were the withdrawal of all passports and travel documents and the banning to address gatherings. While their passports were eventually returned, their case has been adjourned three times and is still pending.
4. 589. Finally, the SFTU alleges that the Government selectively picked on the leadership of all the public sector unions and charged them for "compromising their political impartiality" for having participated in a peaceful protest action and attending a meeting of workers which was held in South Africa. The public servants who were charged are the following: Phineas Magagula, Meshack Masuku, Musa Dlamini, Masitsela Mhlanga, Zweli Nxumalo, Julia Ziyane, Elliot Mkhatshwa, Sipiwe Hlophe and Quinton Dlamini.

B. The Committee’s conclusions

1. 590. The Committee regrets that, despite the time that has elapsed since the complaint was first presented, the Government has not replied to any of the complainant’s allegations, although it has been invited on several occasions, including by means of an urgent appeal, to present its comments and observations on the case. The Committee expresses the hope that the Government will be more cooperative in the future.
2. 591. Under these circumstances, and in accordance with the applicable rules of procedure [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee finds itself obliged to present a report on the substance of the case without the benefit of the information which it had hoped to receive from the Government.
3. 592. The Committee recalls that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to promote respect for this freedom in law and in fact. The Committee remains confident that, if the procedure protects governments from unreasonable accusations, governments on their side will recognize the importance of formulating for objective examination detailed replies concerning allegations made against them [see the First Report of the Committee, para. 31].
4. 593. The Committee notes that this case concerns the application in practice of the 1973 State of Emergency Decree and the 1963 Public Order Act, which, according to the complainant organization, has led to serious violations of the right of workers to assembly and to hold peaceful demonstrations. The Committee also notes that the Government’s recourse to the abovementioned legislation has allegedly led to the detention of trade union leaders and the pressing of charges against them. In this regard, the Committee recalls that the right to organize union meetings is an essential aspect of trade union rights. Furthermore, workers should enjoy the right of peaceful demonstration to defend their occupational interests and the public authorities should refrain from any interference which would restrict this right or impede its exercise, unless public order is disturbed thereby or its maintenance seriously and imminently endangered. Moreover, the authorities should resort to the use of force only in situations where law and order is seriously threatened. The intervention of the forces of law and order should be in due proportion to the danger to law and order that the authorities are attempting to control and the Government should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in a disturbance of the peace [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 137]. On this issue, the Committee further observes that the Committee of Experts on the Application of Conventions and Recommendations had been expressing for several years its concern over the use of the 1973 State of Emergency Decree and the 1963 Public Order Act regarding peaceful protest action. The Committee of Experts noted however with interest, in its 2002 observation, that following the adoption of Act No. 8 of 2000, which came into force in December 2000, modifying certain sections of the Industrial Relations Act of 2000, the provisions regarding the holding of peaceful protest action had been brought into line with the principles of freedom of association. Therefore, the Committee expresses the firm hope that the provisions concerning peaceful protest action contained in Act No. 8 of 2000 will be duly applied, in law and in practice, and that the Government will no longer have recourse to the 1973 State of Emergency Decree and the 1963 Public Order Act when facing peaceful demonstrations from workers. The Committee asks the Government to be kept informed in this regard.
5. 594. As concerns the short detention of trade union leaders following a peaceful demonstration in November 2000 and the charges that were laid against them in January 2001 relating to these incidents, the Committee notes that while they have been released and their passports, once confiscated, were returned, their case has been adjourned three times and is still pending. In this regard, the Committee reminds the Government that the arrest, even if only briefly, of trade union leaders and trade unionists for exercising legitimate trade union activities constitutes a violation of the principles of freedom of association. The Committee asks the Government to drop the charges against the six trade union leaders if it is established that these charges were only laid against them for having led and participated in a peaceful demonstration. Concerning the charges which were laid against the leaders of the public sector unions, the Committee, as in the previous case, asks the Government to drop these charges if it is established that they were only laid against them for, inter alia, allegedly compromising their political impartiality for having participated in a peaceful protest action and attending a workers’ meeting in South Africa. It requests the Government to keep it informed of developments in this matter.

The Committee's recommendations

1. 595. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee regrets that, despite the time that has elapsed since the complaint was first presented, the Government has not replied to any of the complainant’s allegations. The Committee expresses the hope that the Government will be more cooperative in the future.
   • (b) Recalling that workers should enjoy the right of peaceful demonstration to defend their occupational interest, the Committee expresses the firm hope that the provisions concerning peaceful protest action contained in Act No. 8 of 2000 will be duly applied, in law and in practice, and that the Government will no longer have recourse to the 1973 State of Emergency Decree and the 1963 Public Order Act when facing peaceful demonstrations from workers.
   • (c) With regard to the detention of six trade union leaders and the subsequent charges that were laid against them, the Committee asks the Government to drop the charges against the said leaders if it is established that these charges were only laid against them for having led and participated in a peaceful demonstration. It requests the Government to keep it informed of developments in this matter.
   • (d) The Committee further urges the Government to provide its observations concerning the charges which were laid against the leaders of the public sector unions and, as in the previous case, asks the Government to drop these charges if it is established that they were only laid against them for allegedly compromising their political impartiality for having participated in a peaceful protest action and attending a workers’ meeting in South Africa.