Rapport intérimaire - Rapport No. 287, Juin 1993

Cas no 1647 (Côte d'Ivoire) - Date de la plainte: 15-MAI -92 - Clos

1. 438. The complaint of the National Trade Union of Workers in Research and Higher Education (SYNARES) is contained in a communication dated 15 May 1992. The Government replied to the allegations in a communication dated 17 February 1993.
2. 439. The Côte d'Ivoire has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant organization's allegations

1. 440. The National Trade Union of Workers in Research and Higher Education (SYNARES) alleges in its communication of 15 May 1992 that the Ivorian authorities set out to undermine the workers in the Cote d'Ivoire in general, and teachers and research workers in particular, in order to harm them. It refers to violations of the right to strike and the right of assembly, improper and repeated suspensions of workers' pay, violations of disciplinary proceedings provided for under the Ivorian Public Service Regulations and repeated infringements of trade union rights.
2. 441. After giving an account of the background of its relations with the Government and measures taken against it, the complainant organization states that in 1987, Mr. Kokora Dago Pascal, senior lecturer at the Faculty of Literature, Art and Human Science, was relieved of his functions despite university immunity and outside the disciplinary proceedings in force, because the authorities did not approve the subject of the essay he had given to his students.
3. 442. The complainant organization then mentions that in 1991, following a "punitive expedition" carried out in the night of 17 to 18 May by the Ivorian army against students, it protested against the violation of university immunity, the banning of trade union meetings on the university campus and the barbaric attitude of the soldiers; it consequently demanded the setting up of an international commission of inquiry to determine responsibilities. Given the tactics deployed by the Government to dismiss the thefts, tortures and rapes to which the students had been subjected as being of little significance, the SYNARES called for a work stoppage of 72 hours. During this work stoppage, while negotiations between the SYNARES and the President of the Republic were taking place, the Government allegedly decided to requisition the teachers. In response to this illegal step, the SYNARES called a strike of indefinite duration to defend the right to strike and to demand once again the establishment of a commission of inquiry. The SYNARES states that the strikers' salaries were then suspended until the end of the crisis in August 1991, including the salaries for the month preceding the strike period - resulting in a loss of wages for about three months.
4. 443. The complainant organization also points out that the national commission of inquiry, set up in 1991, concluded that during the night of 17 to 18 May 1991, some students had been tortured and raped by the soldiers; the main persons responsible for this "punitive expedition" were allegedly named by the commission in question. Faced with the refusal of the President of the Republic to take any disciplinary measures whatsoever against the responsible persons, the Ivorian People's Front (FPI) and the Students' Federation of the Cote d'Ivoire (FESCI) organized a mass protest march. Other political, humanitarian and trade union organizations - including the SYNARES - also took part in this march.
5. 444. Following this march, according to the complainant organization, the authorities arrested a number of people arbitrarily, most of them at home and without a warrant (see annex). After having been beaten up and humiliated, these persons were then imprisoned and sentenced after a trial at the court of the first instance which failed to respect the guarantees provided for in the Universal Declaration of Human Rights. The SYNARES adds that in spite of the appeal lodged by the defence, these persons are still being illegally held in detention. The complainant organization states that amongst those sentenced are nine militants belonging to the SYNARES, whom it considers to be unquestionably innocent. These are: Koudou Kessié Raymond, Ahibo-Coffy Antoine, Gnaoule Oupoh, Degni Segui René, Ouraga Obou, Koudou Gbagbo Laurent, Kouablan François, Lida Kouassi and Mrs. Gbagbo Ehivent Simone.
6. 445. According to the SYNARES, the salaries of these persons have been suspended since February 1992, thus violating section 27 of Act No. 64-488 of 21 December 1964 concerning the Public Service Regulations. This section stipulates that any decision to suspend wages should be preceded by a decision taken by the minister to suspend the public servant concerned; and even in this case, the suspension can only result in a cut of half the wages of the public servant concerned who is entitled to all of his or her family benefits.
7. 446. Finally, according to the SYNARES, the Government is applying discriminatory salary scales by virtue of Decree No. 91-818 of 11 December 1991 to research workers and teachers recruited after 1 October 1991.

B. The Government's reply

1. 447. In its reply of 17 February 1993, the Government points out that Mr. Kokora Dago Pascal's case was exceptional and had therefore required a special procedure and not the procedure normally used to dismiss an official. It states that the person concerned was dismissed by decree of the President of the Republic "for having seriously failed in his obligations as a teacher by virtue of laws and regulations, and the organization of the public service of national education and the university".
2. 448. As regards the work stoppage organized in 1991 by the SYNARES in sympathy with the students from the National University, the SYNARES infringed section 3 of the Labour Code which stipulates that trade unions have as their sole object the study and defence of economic, industrial, commercial and agricultural interests; and that it also infringed section 188 of the Code which states that lockouts and strikes are prohibited before the conciliation procedure has been exhausted and the expiry of the period of six days following notification to the parties of the official record of failure to achieve conciliation (...). According to the Government, the SYNARES, by calling upon its members to strike in 1991 on political and non-occupational grounds (support to students) and before initiating the conciliation procedure, acted illegally. This illegal strike resulted in the requisitioning of teachers, decided upon under Decree No. 91-418 of 21 June 1991.
3. 449. As regards the allegation that the suspension of the salaries of those taking part in the strike in 1992 was associated with the indefinite strike called by the SYNARES, the Government points out that only 311 national teachers out of the 802 working for the university in 1991 who failed to defer to the requisitioning order, had their pay suspended throughout the work stoppage. The Government states that the SYNARES should specify in its complaint that, notwithstanding their failure to work during the strike, its members who went on strike subsequently received their full pay, as may be seen in a certificate issued by the university authorities - a copy of which is provided by the Government.
4. 450. Concerning the salaries which, according to the SYNARES, were suspended during the month of February 1992, thus violating the provisions contained in the Public Service Regulations, the Government explains that section 27 of these regulations states that: "in the event of a serious misdemeanour committed by an official, whether this consists of a failure to fulfil professional obligations or a breach of common law, the person having committed this offence shall be immediately suspended by the minister responsible - or by the prefect if the official is employed in his department"; it further stipulates that "the officials suspended shall only be entitled to half of his pay; however, he shall continue to receive family benefits ...". The Government also stresses that under section 15 of Decree No. 65-195 of 12 June 1965, which was adopted under section 21 of the Public Service Regulations and regulates the pay and various material benefits granted to officials in state administrations and establishments, "an official detained upon a decision taken by the judicial authority shall lose his entitlement to pay from the day after the day on which his absence has been officially noted" and that "subject to administrative measures likely to be taken against him, he shall be entitled to his pay once again on the day he actually resumes work. Whatever the final judicial decision might be, the person concerned shall not be entitled to back pay or compensation for the period during which he has been removed from service".
5. 451. The Government explains that section 21 of the Regulations stipulates that "any official is entitled, for services rendered, to remuneration which shall include pay - with deductions for the pension scheme - family benefits, housing allowances and, possibly, various forms of compensation".
6. 452. Referring to the above-mentioned provisions and the documents it encloses (notice of proceedings - showing that the nine SYNARES militants sentenced in 1992 were prosecuted for the destruction of vehicles and public and private buildings, violence or assault and rebellion - the order to suspend salaries after an opinion from the disciplinary council and a note of conveyance from the public prosecutor's court in Abidjan), the Government feels that it is correct to say, contrary to the allegations of the SYNARES, that the decision to suspend the salaries of nine of its members under committal order was taken in accordance with the laws and regulations governing the Ivorian public service. It also states that those concerned have retained their family benefits, contrary to the statement made by the SYNARES.
7. 453. As concerns the allegation that discriminatory salary scales are applied to research workers and teachers recruited after 1 October 1992 under Decree No. 91-818 of 11 December 1991, the Government believes that it is necessary to go back to 1976, the date when the new salary scale for officials was introduced, to understand the attitude of SYNARES towards the above-mentioned decree.
8. 454. It describes how in January 1976, the Government, under Decree No. 76-22 of 9 January 1976, introduced specific salary scales for public servants and teachers. Since then, teachers have been, with equal qualifications and training, amongst the best paid of public servants; indeed they are even privileged because their housing is paid by the State. The Government points out that, paradoxically, this situation, which is discriminatory and considered by other public servants as unfair, has never been denounced by the SYNARES or other teachers' trade unions.
9. 455. Given the persistent economic crisis and the fact that it has fewer and fewer means and that there is a growing need for teachers, the State is forced to adjust its means to its needs and, consequently, to recruit new teachers on the basis of a new salary scale - which, furthermore, is that of the majority of public servants who are not teachers. As regards the former teachers, all their advantages are maintained in accordance with the principle of acquired rights contained in section 2 of Decree No. 91-818 of 11 December 1992, which states that "the salary scales established under Decree No. 75-22 of 9 January 1976 shall apply to staff recruited before 1 October 1991". The Government concludes that this step does not constitute a regrading or a cut in the salaries of teachers, but rather new recruitment conditions.

C. The Committee's conclusions

1. 456. The Committee notes that in this case the allegations concern measures of detention and anti-trade union discrimination to which members of the SYNARES, the complainant organization, were allegedly subjected, as well as violations of the right to strike and right of assembly.
2. 457. First of all, the Committee feels bound to recall that it has always believed that freedom of assembly for trade union purposes constitutes a fundamental aspect of trade union rights (see Digest of decisions and principles of the Committee on Freedom of Association, 3rd edition, 1985, paras. 140 and 154) and that, although trade unions should admittedly respect legal provisions which are intended to ensure the maintenance of public order, the public authorities should, for their part, refrain from any interference which would restrict the right of trade unions to organize the holding and proceedings of their public meetings in full freedom (see Digest, op. cit., para. 162). It therefore requests the Government to refrain in the future from taking measures which purely and simply ban trade union meetings and demonstrations and, if it feels there might be a disturbance, to try and reach an agreement with the organizers of these demonstrations to enable them to be held in some other place where there would be no fear of disturbances. (See Digest, op. cit., para. 164.)
3. 458. As regards the allegations that, in 1992, nine militants of the SYNARES (Koudou Kessié Raymond, Ahibo-Coffy Antoine, Gnaoule Oupoh, Degni Segui René, Ouraga Obou, Koudou Gbagbo Laurent, Kouablan François, Lida Kouassi and Mrs. Gbagbo Ehivent Simone) were sentenced after a summary trial in March and April 1992, in spite of the fact that they were - according to the complainant organization - innocent, the Committee notes that the Government has merely enclosed a copy of the notice of proceedings against the above-mentioned nine persons stating that they had been prosecuted for the destruction of vehicles and private and public buildings, violence or assault or rebellion.
4. 459. The Committee expresses its concern over the allegations of ill-treatment that members of SYNARES were subjected to. It recalls that every government should set out to ensure the right of all detained or accused persons to receive a fair trial, and requests the Government to send it the text of the judgements handed down with the reasons adduced, so that it might examine this aspect of the case in full knowledge of the facts. It also requests the Government to provide information on the present situation of the nine persons concerned who were sentenced.
5. 460. Concerning the allegations of infringements of the right to strike, the Committee notes that they concern the requisitioning of the teaching staff decided upon by the Government in 1991 during a 72-hour work stoppage called by the SYNARES. According to the Government, this requisitioning had been decided because of the illegal nature of the strike; indeed, the SYNARES, infringing the provisions of the Labour Code, had instructed its members to strike on political grounds and failed to abide by the conciliation proceedings provided for under the legislation. The Committee notes that the SYNARES, for its part, mentions that these steps were taken following a work stoppage to protest against government tactics to dismiss as insignificant the thefts, tortures and rapes to which the students had been subjected during the events which occurred on the university campus during the night of 17 to 18 May 1991.
6. 461. The Committee stresses that it has acknowledged 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 (see Digest, op. cit., para. 363).
7. 462. In the present case, the Committee considers that the strike called by the teachers to protest against the acts of repression carried out against the students entered within the framework of legitimate trade union activities. Consequently, the Committee considers that there was no need to have recourse to the requisitioning of teachers in these conditions.
8. 463. The Committee notes that the complainant organization mentions a series of measures taken against teachers, starting with the dismissal of Kokora Dago Pascal, senior lecturer at the university, in violation of university immunity and the disciplinary proceedings provided for by the law, because the authorities did not approve the subject of the essay he had given to his students. The Committee notes that, according to the Government, the person concerned was dismissed by decree of the President of the Republic for "having seriously failed in his obligations as a teacher"; this had required a special procedure and not the procedure normally used to dismiss an official. With only this information at its disposal, the Committee is not in a position to examine whether the person concerned was dismissed on anti-trade union grounds and requests the Government to specify exactly what is meant by "a serious failure to fulfil the obligations of a teacher", which was used to justify the dismissal of Kokora Dago Pascal.
9. 464. As concerns the allegations that those taking part in the indefinite strike in December 1991 had had their salaries suspended for three months, the Committee notes the allegation according to which salaries were withheld for a period that was longer than the strike period and the Government's statement that only 311 national teachers out of 802 working at the university in 1991 who did not obey the requisitioning order had their remuneration suspended throughout the duration of the work stoppage and that, finally, the members of SYNARES who had been on strike received their full pay, as confirmed by the university authorities. The Committee recalls, in this respect, that the imposition of sanctions on public servants on account of their participation in a strike is not conducive to the development of harmonious industrial relations (see Digest, op. cit., para. 437).
10. 465. As regards the suspension, since February 1992, of the salaries of nine members of the SYNARES sentenced in March and April 1991, the Committee notes that the complainant organization alleges that this measure constitutes a violation of the Public Service Regulations. The Committee notes that the Government states that this suspension is in accordance with the provisions of section 15 of Decree No. 65-195 of 12 June 1965 applied by virtue of section 21 of these regulations, which stipulate that "an official detained upon a decision by the judicial authority shall lose his entitlement to pay from the day after the day on which his absence has been officially noted".
11. 466. While noting this information, the Committee proposes waiting until the Government has sent the judgments sentencing the persons in question so that it may determine, in full knowledge of the facts, whether these persons were indeed sentenced, as the complainant organization alleges, on grounds of their trade union activities, and consequently, whether the suspension of their salaries constituted an act of anti-trade union discrimination.
12. 467. Finally, as regards the discriminatory salary scales applied under Decree No. 91-818 of 11 December 1991 to research workers and teachers recruited after 1 October 1991, the Committee, noting that the complainant organization does not state how this decree constitutes a violation of freedom of association and noting that the Government explains that this step does not constitute a regrading or a cut in teachers' salaries but rather new recruitment conditions, believes that this aspect of the case does not call for further examination.

The Committee's recommendations

1. 468. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations.
   • (a) Recalling that freedom of assembly and the right to hold public meetings constitute a fundamental aspect of trade union rights, the Committee requests the Government to refrain in the future from purely and simply banning trade union meetings and demonstrations and, whenever it fears disturbances, to strive to reach an agreement with the organizers of these meetings and demonstrations to enable them to be held in some other place where there would be no fear of disturbances.
   • (b) As concerns the sentencing, in March and April 1992, of nine members of the SYNARES, and the suspension of their salaries since February 1992, the Committee requests the Government to send it the text of the judgements handed down with the reasons adduced. It also requests it to provide information on the present situation of the persons in question.
   • (c) Recalling 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 teachers do not fall within the definition of essential services in which the right to strike may be restricted or prohibited, the Committee requests the Government to refrain in the future from resorting to such serious measures as the requisitioning of workers outside sectors of activity providing an essential service in circumstances of the utmost gravity or during an acute national crisis.
   • (d) The Committee requests the Government to specify what is meant by "serious failure to fulfil the obligations of a teacher", which was used to justify the dismissal of Kokora Daga Pascal.
   • (e) The Committee recalls that the imposition of sanctions on public servants on account of their participation in a strike is not conducive to the development of harmonious industrial relations.

ANNEX

1. Members of the SYNARES arrested and/or sentenced according to the allegations
2. A. Persons sentenced on 6 March 1992
3. 1. Koudou Kessié Raymond: First Deputy Secretary-General
4. 2. Ahibo-Coffy Antoine:
5. Militant, former member of the National Executive
6. 3. Gnaoule Oupoh: Militant
7. 4. Degni Segui René: Militant
8. 5. Ouraga Obou: Militant
9. 6. Mrs. Gbagbo Ehivent Simone:
10. Militant, former member of the National Executive
11. 7. Koudou Gbagbo Laurent: Militant
12. B. Persons sentenced on 28 April 1992
13. 8. Kouablan François: Secretary-General of the INJS
14. 9. Lida Kouassi: Militant
15. C. Persons released on 6 March 1992
16. 10. Nyamien Messou N'Guessan: Deputy Treasurer
17. 11. Traore Lacina: Militant
18. 12. Boni Beda: Militant
19. D. Persons released on 10 April 1992
20. 13. Bttien Amoakan: Treasurer
21. 14. Koffi Kouakou Adjei: Secretary in charge
22. 15. Aka Kouassi:
23. Militant, former President of the Bureau of
24. the Administrative Council
25. 16. Kone Aboubaker: Militant
26. 17. Bamba El Hadj: Militant