Allegations: Abduction and arbitrary detention by the special services of three
trade unionists, including the President of the Congolese Labour Confederation
- 685. The Committee last examined this case at its June 2012 meeting, when
it presented an interim report to the Governing Body [see 364th Report, approved by the
Governing Body at its 315th Session, paras 1009–1018].
- 686. At its June 2013 meeting [see 368th Report, para. 5], the Committee
launched an urgent appeal and drew the attention of the Government to the fact that, in
accordance with the procedural rules set out in paragraph 17 of its 127th Report,
approved by the Governing Body (1971), it may present a report on the substance of the
case at its next meeting even if the observations or information from the Government
have not been received in due time. To date, the Government has not sent any
information. However, on its visit to the country, a technical assistance mission of the
Office was able to collect information on this case from the Government’s
representatives.
- 687. The Democratic Republic of the Congo has ratified the Freedom of
Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right
to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers’
Representatives Convention, 1971 (No. 135).
A. Previous examination of the case
A. Previous examination of the case- 688. In its previous examination of the case, in June 2012, deploring the
fact that, despite the time that had elapsed, the Government had not provided any
information on the allegations, the Committee made the following recommendations [see
364th Report, para. 1018]:
- (a) In general, the Committee can only deplore the fact that the
Government has still not provided any information whatsoever regarding the five
consecutive complaints presented since 2009, which have already been examined in the
absence of the Government’s reply and which allege grave violations of freedom of
association. The Committee notes once again with deep regret that the Government
continues to fail to comply, despite assurances given to the Chairperson of the
Committee at a meeting held in June 2011. The Committee expects the Government to be
more cooperative in the future. With regard to the present case, the Committee
deeply deplores the fact that, despite the time that has elapsed since the
presentation of the complaint in April 2009, the Government has still not replied to
the complainant’s allegations, even though it has been requested several times,
including through three urgent appeals, to present its observations on the
allegations and its reply to the recommendations made by the Committee.
- (b) The Committee urges the Government to hold an independent
inquiry without delay to elucidate the reasons for the arrests of the two Congolese
Labour Confederation (CCT) trade unionists, Mr Richard Kambale Ndayango and Mr
Israël Kanumbaya Yambasa, and of the President of the organization, Mr Nginamau
Malaba, on 11, 16 and 19 January 2009, respectively, by National Intelligence Agency
(ANR) agents; to ascertain the charges laid against them to justify their detention;
and, if it is found that they were detained solely for reasons linked to their
legitimate union activities, to release them immediately and punish those
responsible in a manner sufficiently dissuasive to prevent any recurrence of such
acts in the future, and compensate them for any lost wages.
- (c) The Government is requested to provide copies of the
relevant court decisions in this case, including the decision of 26 February 2009 of
the Kinshasa/Gombe magistrate’s court, the decision of the appeals court for which a
hearing was set for 13 March 2009, and to indicate any follow-up action taken.
- (d) The Committee urges the Government to hold an inquiry
without delay into the allegation that the three trade unionists concerned were held
in custody for one month before obtaining a hearing and were subjected to inhumane
and degrading treatment, and to indicate the outcome.
- (e) The Committee requests the Government or the complainant
organization to indicate the follow-up action taken on the complaint filed by the
CCT with the Attorney-General of the Republic on 28 January 2009.
- (f) The Committee requests the Government to accept a high-level
mission to discuss all the complaints pending before the Committee concerning the
Democratic Republic of the Congo.
B. The Committee’s conclusions
B. The Committee’s conclusions- 689. The Committee notes with interest that the Government accepted a
technical assistance mission from the International Labour Office to gather information
on the various cases that have been examined by the Committee over the years without any
real progress being made in following up on its recommendations. The Committee has taken
note of the report of the technical assistance mission (set out in the appendix to this
report) and welcomes the new spirit of cooperation demonstrated by the Government. It
expects the recommendations it makes to be put into effect in the same spirit.
- 690. Concerning the present case, the Committee takes note of the
information that Mr Richard Kambale Ndayango, Mr Israël Kanumbaya Yambasa and Mr
Nginamau Malaba, all of whom are representatives of the CCT at the Secretariat for
Economic Affairs, were arrested in January 2009. They were then held in detention for a
month on suspicion of forgery and using forged documents (production of a falsified
mission order). On 2 March 2009, the judge of the Kinshasa/Gombe magistrates’ court
ordered their release on bail on the grounds of a lack of evidence that they were
guilty. However, the Public Prosecutor’s Office appealed the decision and they remained
in prison. The Committee notes that they were released by an order of 18 March 2009 by
the Gombe High Court, which confirmed the lack of evidence against them (the complainant
organization provided the mission with copies of the court decisions).
- 691. The Committee notes that the unionists filed a complaint in May 2009
with the Office of the Attorney-General of the Republic claiming that they had been
ill-treated during their detention and seeking redress. However, the Committee notes
that, to date, no follow-up action has been taken on their complaint. The Committee
expects that measures will be taken without delay in order to examine the complaint
submitted by the CCT members for unlawful detention and ill-treatment and requests the
Government to keep it informed in this respect. The Committee expects that any decision
will take into account compensation principles consistent with its previous
recommendations (see paragraph 688(b)) above.
- 692. The Committee notes the statement made to the mission by the
representative of the Secretary-General for Economic Affairs indicating that the
administration was not responsible for the arrest and detention of the trade unionists
in question. It had just been a spectator of the situation and, when the trade unionists
had been released, they had been able to return to their jobs and continue to exercise
their trade union activities. The Committee notes that the trade unionists confirmed to
the mission that they were carrying out their trade union activities without
hindrance.
- 693. The Committee deeply regrets the long period of detention undergone
by the unionists (almost two months) solely on the grounds of there being “strong
circumstantial evidence that they were guilty of forgery and of using forged documents”
submitted by the Public Prosecutor’s Office, even though the courts that examined the
case ruled that the Public Prosecutor’s Office was unable to prove the existence of such
evidence. Therefore, even though no aspect of this case can be used to support the
allegation that the arrest and detention of Mr Richard Kambale Ndayango, Mr Israël
Kanumbaya Yambasa and Mr Nginamau Malaba were linked to their trade union activities,
the Committee nevertheless notes that the events in question do not allow for this
possibility to be discounted. On this issue, the Committee draws the Government’s
attention to the principle that the arrest of trade unionists against whom no charge is
brought involves restrictions on freedom of association, and governments should adopt
measures for issuing appropriate instructions to prevent the danger involved for trade
union activities by such arrests [see Digest of decisions and principles of the Freedom
of Association Committee, fifth (revised) edition, 2006, para. 70]. The Committee
expects the Government to ensure the strict observance of this principle of freedom of
association.
The Committee’s recommendation
The Committee’s recommendation- 694. In the light of its foregoing conclusions, the Committee invites the
Governing Body to approve the following recommendation:
- The Committee expects that measures will be taken without delay in order to
examine the complaint submitted by the CCT members in May 2009 for unlawful
detention and ill-treatment and requests the Government to keep it informed in this
respect. The Committee expects that any decision will take into account compensation
principles consistent with its previous recommendations (see paragraph 688(b))
above.
Appendix
Appendix- Technical assistance mission of the International Labour Office to the
Democratic Republic of the Congo (14–20 July 2013)
- A. Background
- 1. Since 2009, the Committee on Freedom of Association has received several complaints
from different trade union confederations against the Government of the Democratic
Republic of the Congo. To date, the Committee has received six complaints. In accordance
with the Committee’s procedures, the Government has been invited to provide its
observations in response to the allegations made in the complaints. However, until very
recently, the Government had not provided a response with regard to any of the cases
and, despite regular reminders by the Office, no observations, either on the allegations
or on the Committee’s recommendations, were received by the Office. The Chairperson of
the Committee on Freedom of Association has met with a Government delegation to
reiterate the importance of providing information and, in this regard, the Committee has
proposed on several occasions the technical assistance of the Office.
- 2. The Government sent partial information on three of the six cases in January 2013
and accepted an assistance mission from the Office to gather information on the cases.
The mission, comprising a legal specialist on freedom of association issues from the
International Labour Standards Department and the international labour standards
specialist from the ILO office in Yaoundé, visited Kinshasa from 14 to 20 July
2013.
- 3. The mission benefited from the logistical support of the ILO office in Kinshasa and
the cooperation of the Ministry of Labour to organize its schedule of meetings. The
mission was therefore able to meet all the parties involved in the six cases being
examined by the Committee, as well as the Minister for Labour and the Director of the
Prime Minister’s Office (the Prime Minister himself was prevented from coming at the
last minute).
- B. Information gathered by the mission on Case No. 2712
- 4. Concerning Case No. 2712, the mission met the CCT members involved at the
organization’s headquarters. They were: Mr Nginamau Malaba, President of the CCT at the
Ministry of the National Economy and Trade; Mr Richard Kambale Ndayango; and Mr Israël
Kanumbaya Yambasa. The mission also held talks with a representative of the General
Secretariat for Economic Affairs concerning the case.
- 5. According to the information gathered by the mission, Mr Kambale Ndayango, Mr
Kanumbaya Yambasa and Mr Nginamau Malaba were arrested in January 2009 by agents of the
National Intelligence Agency (ANR). They were held in detention for a month on suspicion
of forgery and using forged documents (production of a falsified mission order). On 2
March 2009, the judge of the Kinshasa/Gombe magistrates’ court ordered their release on
bail on the grounds of a lack of evidence that they were guilty. However, the Public
Prosecutor’s Office appealed the decision and they remained in prison. Ruling on the
appeal, the High Court in Gombe confirmed that there was no evidence that they were
guilty and ordered their release on 18 March 2009. According to the unionists, they went
back to work at the General Secretariat for Economic Affairs and have been exercising
their trade union duties without hindrance. However, with the help of the African
Association for the Defence of Human Rights (ASADHO), they filed a complaint in May 2009
to the Office of the Attorney-General of the Republic claiming that they were
ill-treated during their detention and seeking redress. To date, no follow-up action has
been taken on their complaint.
- 6. The representative of the Secretary-General for Economic Affairs told the mission
that his administration was not responsible for the arrest and detention of the trade
unionists in question. It had just been a spectator to the situation and, when the trade
unionists had been released, they had been able to return to their jobs and continue to
exercise their trade union activities.
