Rapport intérimaire - Rapport No. 302, Mars 1996

Cas no 1833 (République démocratique du Congo) - Date de la plainte: 03-MARS -95 - Clos

Allegations: Arbitrary arrest of three trade unionists and obstacles to collective bargaining on conditions of employment

1. 535. In a communication dated 3 May 1995 the National Union of Workers of Zaire (UNTZA) presented a complaint against the Government of Zaire alleging violations of freedom of association.
2. 536. Since then, in the absence of any information or observations from the Government on the case, the Committee has had to postpone examination of the complaint on several occasions. At its November 1995 meeting it urgently appealed to the Government to send its observations and information on the case as soon as possible, notifying it that, in accordance with the rule of procedure set out in paragraph 17 of the Committee's 127th Report approved by the Governing Body, it would present a report on the substance of the case even if the observations or information requested from the Government had not been received in due time. Since then, the Government has not supplied any information.
3. 537. Zaire has not ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), but it has ratified the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 538. The complainant organization refers to the arbitrary arrest of trade unionists at the General Tax Directorate in Kinshasa. It explains in its communication of 3 May 1995 that the General Tax Directorate is a public service attached to the Ministry of Finance which is responsible for collecting taxes due to the State. Its staff are scattered throughout the national territory and have the status of public servants. For four years now the staff have had a temporary trade union committee that represents them vis-à-vis their employer; the committee is recognized by the General Directorate which in the past has involved it in discussions and negotiations on problems, demands and other suggestions of the staff. The committee is a member of the National Board of State Agents and Public Servants (DINAFFET - Gandir branch).
2. 539. The complainant organization alleges that relations between the staff and the General Directorate have deteriorated since the current Director-General, Mr. Gaston Mongbondo Djumambele, was appointed:
   • - the trade union committee has submitted staff demands to which the General Directorate has not responded;
   • - a list of demands was submitted, and the director-general replied that he would not negotiate with the trade union;
   • - since no action had been taken on the list of demands, the staff believed that their committee was acting in collusion with their employer;
   • - the employer has accused the trade unionists of being the instigators of all the staff movements, dissatisfaction and work stoppages.
3. 540. According to the complainant organization the Director-General has no arguments to refute the staff's demands and has therefore resorted to violent tactics by having trade unionists arbitrarily arrested:
   • - on 8 March 1995, after work, in the vicinity of the Town Hall, in other words not far from the offices of the General Tax Directorate, several men in uniform got out of a vehicle, seized trade unionists Okitalomé Pené Ngongo and Masudi Bin Omari and took them to cells at the headquarters of the civil guard;
   • - a third trade unionist Lokombe Loteke joined them on the morning of 9 March 1995 after having been arrested in his office by military personnel on the orders of the Director-General.
4. 541. According to the allegations, the conditions in which these trade unionists were held were deplorable:
   • - no visits from outside allowed, except for their lawyers;
   • - no clothing;
   • - no food and no hygiene.
     • However, because the military personnel took their side and refused to torture them on the grounds that they were defending the interests of everyone, including themselves, the trade unionists were not ill-treated.
   • 542. Thanks to strong pressure from several human rights organizations, trade union organizations and the written press, the three trade unionists were freed in the afternoon of 13 March 1995 without having been charged or heard by any judicial authority whatsoever and without any document referring to their arrest, incarceration and release. They refused to sign a declaration that had been prepared in advance requesting the Director-General to show clemency.
5. 543. After their release, the Director-General initially assured the trade union committee that negotiations would be held on all their demands. On several occasions, however, he did not turn up, and on 17 April 1995 the trade unionists Okitalomé and Mbelu Tshimanga, who wanted to contact him to fix a date for the negotiations, were again arrested by military personnel and taken to cells in the public prosecutor's office of La Gombe. As to Mr. Lokombe, he too was arrested and taken to the same cell by investigating inspector Hemedi on 18 April.
6. 544. The three trade unionists were kept in custody for over 48 hours and were then transferred to the central prison of Makala on 21 April pending their trial. Because of his deteriorating health, Mr. Lokombe was released at the request of his doctor on condition he responded to any summons from the public prosecutor's office. He is extremely worried about the health of his two comrades still in prison, as conditions are worse than in the cells of the civil guard.
7. 545. The complainant organization denounces the Director-General's refusal to negotiate with the trade union committee, in its opinion because he wants to manage the State's funds without any control. The staff's demands are an obstacle to his ambitions and he therefore wishes to do away with the trade unionists. The latter, however, only wish to negotiate in order to meet the staff's expectations, bearing in mind the limited resources of the General Tax Directorate.
8. 546. The complainant organization explains that, when at the national level the UNTZA was informed of the case as the most representative trade union in Zaire it made numerous approaches to the government authorities in order to obtain the release of the comrades who had been arbitrarily arrested for exercising their trade union activities. At the same time, the UNTZA drew the public authorities' attention to the Trade Union Act and endeavoured to convince them that it was absolutely necessary for them to comply with it in order to facilitate the operation of the rule of law. It also alerted national and international public opinion through the television and radio. It insists on a just and equitable trial that would lead to the conviction of the perpetrators of these acts and would serve as a lesson to everyone else. It also wishes the working and living conditions of the staff of the General Tax Directorate to be the subject of negotiations with the trade unionists as soon as they are released.
9. 547. Finally, at the international level and in collaboration with the International Confederation of Free Trade Unions (ICFTU), the UNTZA decided to submit a complaint to the ILO's Committee on Freedom of Association with respect to the manifest violation by the Director-General, Mr. Mongbondo, of the recognized the trade union right of the staff of the General Tax Directorate and their trade union committee to organize their activities and draw up their programme of action without interference from the public authorities. It is asking that pressure be brought to bear on the Government of Zaire, which is the authority responsible for the General Tax Directorate, to respond positively, order the release of the trade unionists and discharge them unconditionally.

B. The Committee's conclusions

1. 548. The Committee regrets that the Government has failed to send its comments and observations on the allegations presented by the complainant organization, despite the time which has elapsed since the presentation of the complaint and despite the fact that it invited the Government to do so on several occasions, including by means of an urgent appeal.
2. 549. Under these conditions, and in accordance with the applicable rule of procedure (see 127th Report of the Committee, para. 17, approved by the Governing Body at its 184th Session), the Committee finds itself obliged to present a report on the substance of this case, even if the information awaited from the Government has still not been received.
3. 550. Deeply regretting that for the second time the Government has not responded to allegations made against it (see Case No. 1818, 300th Report, paras. 350-370, approved by the Governing Body in November 1995), the Committee, while recognizing the difficult situation prevailing in the country, once again reminds the Government that the purpose of the procedures established by the International Labour Organization for examining alleged violations of freedom of association is to ensure respect for trade union rights, both in law and in fact. While these procedures protect governments against unreasonable accusations, they must for their part recognize the importance of formulating detailed and factual replies concerning the substance of the allegations brought against them in order to permit an objective examination (see First Report, para. 31).
4. 551. The Committee notes with concern the seriousness of the allegations presented by the complainant organization in this case as regards the arrest and detention of trade unionists and the refusal of the Government to negotiate with the representative trade union committee in the tax sector.
5. 552. The Committee deeply regrets the alleged arrest and detention, without charges having been brought, of four trade unionists Mr. Okitalomé, Mr. Masudi Bin Omari, Mr. Mbelu Tshimanga and Mr. Lokombe in March and again in April 1995, even though one of them was quickly released for health reasons. On this point, the Committee reminds the Government that the arrest and detention of trade union officials, even for a short period, for activities in connection with the exercise of their legitimate trade union rights is a serious infringement of freedom of association (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 69, 70 and 75) and, in particular, that the arrest of trade union leaders against whom no criminal charges are laid involves restrictions on the exercise of trade union rights (op. cit., para. 82). The Committee therefore urges the Government in future not to resort to such action and to keep it informed of developments in the situation as it relates to the trade unionists mentioned by the complainant organization and, more specifically, to indicate whether the trade unionists referred to by name by the complainant organization have since been released and to inform it whether legal proceedings have been brought against them and what has been the outcome.
6. 553. Regarding the alleged refusal of the General Tax Directorate to undertake negotiations with the staff of this public service, the Committee deeply regrets that the Government has not made any comments on the subject. The Committee recalls in general terms the importance it attaches to respect for the principles embodied in the Labour Relations (Public Service) Convention, 1978 (No. 151), and calls on the Government inter alia to take steps to encourage and promote procedures that are conducive to negotiations on conditions of employment between the public authorities and the representative organizations of public agents, including in the area covered by the General Tax Directorate, and to refrain in future from denying representative trade union organizations access to negotiations. The Committee requests the Government to submit its observations in this respect as soon as possible.

The Committee's recommendations

1. 554. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee regrets that the Government has not responded to the serious allegations presented by the complainant organization, despite the fact that it was invited to do so on several occasions.
   • (b) The Committee, recalling that the arrest and detention of trade union leaders for activities in connection with the exercise of their legitimate trade union rights is a serious infringement of the principles of freedom of association, calls on the Government in future not to resort to such measures and to keep it informed of developments in the situation of the trade unionists referred to in the complaint, and specifically to indicate whether legal proceedings have been brought against them and what has been the outcome.
   • (c) The Committee urges the Government to refrain from denying representative trade union organizations access to negotiations on conditions of employment in the public services in general, and in the tax service in particular. The Committee requests the Government to submit its observations as soon as possible on the alleged refusal of the General Tax Directorate to undertake negotiations with the staff of this public service.