Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 355, Novembre 2009

Cas no 2686 (République démocratique du Congo) - Date de la plainte: 18-OCT. -08 - Clos

Allegations: The complainant organization reports acts of interference in its activities, administrative suspension, arrest and detention of trade union leaders, and attempts to prevent the union from functioning, as well as a smear campaign against it by the public authorities. It also alleges that the public authorities support one trade union organization in preference to others in the health sector

1. 1093. The complaint is contained in communications dated 18 October 2008 and 31 March 2009 sent by the National Union of Medical Practitioners, Health Service Management and Personnel (SYNCASS). In a communication dated 16 June 2009, UNI Global Union supports the complaint.
2. 1094. The Government sent its observations in a communication dated 6 March 2009.
3. 1095. The Democratic Republic of the Congo 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 organization’s allegations

1. 1096. The complainant states that it represents managers and employees in service sectors throughout the country and, in particular, in the health sector. It reports, in this case, interference in the activities of the SYNCASS committee in the city of Bandundu (“SYNCASS BDD committee”), which is said to represent most categories of staff in the health sector, except doctors.
2. 1097. In its communications of 18 October 2008 and 31 March 2009, SYNCASS complains of acts of interference in its activities by the authorities, in particular by the Secretary General of the Ministry of Health, the Government of Bandundu Province and provincial medical inspectors, all in contravention of section 235 of the Labour Code.
3. 1098. SYNCASS indicates that the trade unions are responsible for handling the payments of risk insurance premiums of health service staff. Payments are effected by the national doctors’ union (SYNAMED) for doctors and by SYNCASS for other categories of health service staff, except pharmacists and dentists. This arrangement dates from 2004, when the Ministry of Health, by agreement and at the initiative of SYNAMED, began signing and forwarding monthly listings of risk insurance premium payments to the ministers responsible for the state budget and finances. The lists were drawn up by SYNAMED, on the one hand, and by the Interoccupational Health Commission and countersigned by SYNCASS, on the other. According to the complainant organization, it was partly the absence of any legislation governing these arrangements and the regular misappropriation of staff salaries, both at the central and provincial levels, that prompted the Government to agree to transfer responsibility for managing risk insurance premium payments to the unions.
4. 1099. However, the complainant organization denounces the unilateral decision taken on 11 July 2008 by the Governor of Bandundu Province to set up a commission to supervise payments of the risk insurance premiums for occupational categories other than doctors, replacing the SYNCASS BDD committee which had hitherto been responsible for managing these payments. The decision in question is regarded by the complainant organization as interference in the union’s activities. According to the complainant organization, the Governor of Bandundu Province decided to relieve the SYNCASS BDD committee of all responsibility for handling risk insurance premium payments on the pretext that there had been instances of misappropriation from the premiums for May and June 2008. The complainant maintains that neither the Governor nor the commission set up subsequently to deal with the payments have been able to offer irrefutable evidence in support of their accusations, and claims that these accusations are in fact no more than a roundabout way for the Governor to have a new SYNCASS BDD committee appointed so that he can work with individuals of his own choosing, thus depriving the legitimate SYNCASS BDD committee of the union dues to which it is entitled in return for the service it provides to members who benefit from the risk insurance premium.
5. 1100. In this regard, the complainant organization denounces the creation of a puppet interim committee at an assembly held by the National Association of Nursing Staff (ANIC) on 10 July 2008. This violated the bylaws of SYNCASS. The complainant organization has supplied a copy of the minutes of the meeting in question, in which the reason for the liquidation of the original committee is said to be because it had not been given a mandate by a majority of all the staff categories involved. The complainant organization also supplied a copy of a letter from Mr Willy Tazi Puli Thienabe and Mr Théophile Tamukey Makuma, president and secretary, respectively, of the interim provincial SYNCASS BDD committee, indicating that the original SYNCASS BDD committee was no longer in operation and another interim committee had been elected to replace it.
6. 1101. The complainant organization indicates that on 14 July 2008, the Governor suspended the three principal officers of the SYNCASS BDD committee (Mr Simon Mambu, provincial coordinator of nursing schools and provincial executive secretary; Mr Dieudonné Ilwa, Xray technician at Bandundu General Hospital; and Mr Blanchard Sukami, nurse and provincial treasurer). Disciplinary action will be taken at a later date against these three officials. In addition, the Governor is said to have instructed the general prosecutor at the Bandundu court of appeal to arrest and detain the officials in question; it is claimed that they were detained from 14 to 25 July 2008 (11 days), a period well in excess of the 48 hours allowed under article 18 of the Constitution.
7. 1102. The complainant organization denounces the fact that all the measures of suspension, arrest and detention, as well as disciplinary measures, were instigated before the commission set up to supervise payments of risk insurance premiums had submitted its report on 4 August 2008. In the view of SYNCASS, this shows that the measures in question are in fact covert attacks made with the aim of disrupting the union’s work, since Mr Mambu, Mr Ilwa and Mr Sukami, in managing these payments, were acting in accordance with a union mandate. The general secretary of SYNCASS is also said to have been arrested by the police on 10 October 2008.
8. 1103. SYNCASS alleges that the three union officers are unable to carry on their official union duties. It claims that the Governor and the medical inspector refuse to cooperate, and that they have seats on the commission currently responsible for handling the payment of risk insurance premiums, which is now supervised by the medical inspector instead of by the SYNCASS provincial official. The complainant organization further alleges that the three union officials in question have been banned from leaving the town of Bandundu.
9. 1104. The complainant organization also states that on 8 August 2008, when Mr Mambu called on the manager of the “Sons of Bandundu” agency to collect some correspondence addressed to him and containing the list of risk insurance beneficiaries for July 2008, the agency employee was approached by two individuals acting on the instructions of the provincial medical inspector. The complainant organization has supplied in an annex to the main complaint a letter dated 11 August 2008 from Mr Mambu and Mr Ilwa relating the events that are alleged to have occurred, and stating that the two persons who intercepted the correspondence used force against the manager of the agency.
10. 1105. The complainant organization also alleges that the commission set up to supervise payments of the risk insurance premium ordered the confiscation of the portable computer owned by the SYNCASS BDD committee on the instructions of the provincial Governor, in order to seek evidence in support of their accusations. According to the complainant organization, however, no such evidence has ever been found, and the computer has never been returned. It supplies in this connection copies of a mission report ordered by the Minister of Justice noting the confiscation of the computer on the Governor’s instructions, and noting also that no evidence of the allegations was ever found and that despite this, the computer has still not been returned to the union, despite repeated requests.
11. 1106. SYNCASS states that on 18 September 2008, the Governor asked the medical inspector of the province to allocate its (SYNCASS) share of dues to another union, the FNPS/UNTC, resulting in a new distribution of union dues. According to the complainant organization, the FNPS/UNTC is a union whose presence and action is not effective in the public health services.
12. 1107. The complainant organization also denounces the media campaign waged by the authorities in order to discredit the union in the eyes of the workers. In addition, at a public meeting, the Governor is said to have suggested specifically to the health sector staff of Bandundu that they should collectively disaffiliate from SYNCASS.
13. 1108. Furthermore, the complainant organization states that the request made by the Director of Health Care Institutions on 10 March 2009 to end the practice of having state accountants deduct dues at source when the risk insurance premiums were paid, and to set up in its place mechanisms by which the union members themselves could recover those dues, contravenes point 12 of the protocol of agreement of 14 November 2007 signed by the national inter-union body (SYNCASS and SOLCYO) and the Government, which had undertaken to allow the deduction of union dues at source. The complainant organization supplies in the annex a copy of a letter from the Ministry of Public Health, dated 10 March 2009, by which the request was made.
14. 1109. The complainant organization alleges that its dispute with the Governor of Bandundu shows the discriminatory treatment by the authorities of health services staff other than doctors. As an example, it cites the attention given by the authorities to the demands of doctors’ union representatives, which contrasts with the intimidation to which SYNCASS and its members are subjected.
15. 1110. According to the complainant organization, this discriminatory treatment is a consequence of the political and administrative structure of the country’s health sector, which helps to preserve a corporatist attitude, to the detriment of most staff in the sector. The claims made by categories of staff other than those represented by the doctors’ unions are said to be systematically ignored. Similarly, they are refused promotions and higher management appointments, which is not conducive to their participation in bodies that fix their terms and conditions of work. The complainant organization denounces this de facto differential treatment, which prevents any account being taken of the work-related demands of the majority of health sector staff, and requests the re-establishment of dialogue between the authorities and union representatives in the sector.

B. The Government’s reply

1. 1111. In a communication dated 6 March 2009, the Government states that, following the complaint filed by SYNCASS, a delegation was authorized to carry out an investigation in Bandundu into the allegations made by the complainant organization. The delegation comprised the councillor for industrial relations and labour inspection and the principal labour inspector (first class) attached to the general labour inspectorate.
2. 1112. As part of the investigation, the delegation met with the Governor of Bandundu Province, the Procurator General of the Republic, the provincial medical inspector, the administrator of the Bandundu hospital, the executive committee of the National Union of Workers in Bandundu and a delegation from SYNCASS/Bandundu. In addition, it met with one of the individuals involved in the complaint, Mr Mambu. The Government states that, according to the conclusions of the inquiry, and following numerous complaints made by beneficiaries of the risk insurance to the provincial health division and SYNCASS, and noting the general climate of mistrust among those beneficiaries towards the SYNCASS BDD committee, the Governor decided to set up a provincial commission to inquire into the payment of the risk insurance premiums for health sector staff. The investigation is said to have shown that some 9,495,672 Congolese francs had been siphoned off by the SYNCASS BDD committee out of the total premiums collected for March 2008. That sum was returned later by the SYNCASS BDD officials. According to the Government, however, not only had the SYNCASS BDD committee been required to explain the monthly deficits seen between December 2007 and April 2008, but the Governor of the Province had instituted judicial proceedings for misappropriation of the premiums by state officials under the authority of the provincial government. The persons concerned are Mr Mambu and Mr Ilwa.
3. 1113. The Government states that the inquiry conducted by the delegation proved that the SYNCASS BDD committee had regularly misappropriated state funds intended for the payment of risk insurance premiums for health-care and administrative staff. As a result of this, in accordance with the statutes governing state officials and Decree-Law No. 017/2002 of 3 October 2002, setting out the Code of conduct for state officials, the provincial authorities suspended Mr Mambu and Mr Ilwa as a preventive measure. In addition, they were asked to explain a deficit of 33,009,977 Congolese francs in the payment operations for which they were responsible.
4. 1114. In the Government’s view, this case is not about interference in the activities of SYNCASS but of measures to punish state officials who had misappropriated funds in contravention of Decree-Law No. 017/2002 of 3 October, in particular sections 29, 30 and 32. The Government furthermore is guided by the Committee’s principle according to which in cases involving the arrest, detention or sentencing of a trade union official, the person accused must enjoy the presumption of innocence, and the Government must show that the measures it adopts are not motivated by the trade union activity of the person concerned.

C. The Committee’s conclusions

1. 1115. The Committee notes that this case concerns allegations of interference by the authorities in the activities of a trade union, arrests and detentions of trade unionists, seizure of the union’s correspondence and computer records, and a public smear campaign against the union.
2. 1116. The Committee notes that the complainant organization denounces the unilateral decision by the Governor of Bandundu Province in July 2008 to set up a commission to supervise the payments of risk insurance premiums for categories of health service staff other than doctors, for the months of May and June 2008, which had formerly been the responsibility of the SYNCASS BDD committee, under the terms of a protocol of agreement concluded with the Ministry of Health. The Committee notes that according to the complainant organization, this decision, the pretext for which was unproven accusations of misappropriation of funds, constitutes interference in the union’s activities. The Committee notes that according to the complainant organization, these accusations are just a roundabout way for the Governor to get a new SYNCASS BDD committee appointed, so that he can work with people of his own choosing and thereby deprive the legitimate SYNCASS BDD committee of the dues to which it was entitled in return for the service it provided to beneficiaries of the risk insurance.
3. 1117. The Committee notes the Government’s statements to the effect that it authorized a delegation to carry out an on the spot inquiry into the allegations made by the complainant organization. According to that inquiry, following numerous complaints by insured members to the provincial health division and the provincial section of SYNCASS, and in view of the growing mistrust among insured members towards the provincial SYNCASS committee, the Governor decided to set up a provincial commission to deal with payments of the risk insurance premiums for health-care and administrative staff. The Committee notes the Government’s statements to the effect that the inquiry concluded that the SYNCASS BDD committee was regularly siphoning off state funds intended for paying the risk insurance premiums.
4. 1118. The Committee notes the complainant organization’s statements to the effect that on 14 July 2008, the Governor suspended the three principal officials of the SYNCASS BDD committee (Mr Simon Mambu, provincial executive secretary; Mr Dieudonné Ilwa; and Mr Blanchard Sukami, provincial treasurer) from their administrative posts. The Committee notes the statement to the effect that the Governor on the same day instructed the public prosecutor at the Bandundu court of appeal to order the arrest and detention of the three trade unionists, who were detained for a period of 11 days from 14 to 25 July 2008, which according to the complainant is well beyond the 48 hours allowed under the National Constitution. In addition, on 15 July 2008, disciplinary action was initiated against the three trade unionists in question. According to the complainant organization, these measures of suspension, arrest and detention, as well as the disciplinary measures, were taken well before the commission responsible for supervising the payments of risk insurance premiums submitted its report on 4 August 2008. This, it is claimed, shows that the measures in question are in fact disguised attacks aimed at disrupting the operation of the union.
5. 1119. The Committee notes the Government’s statement to the effect that in accordance with the statutes governing public officials and Decree-Law No. 017/2002 of 3 October 2002, regarding the Code of conduct for state officials, the provincial authority suspended Mr Mambu and Mr Ilwa on a preventive basis. The Committee also notes the Government’s statement to the effect that the Governor filed an action with the Bandundu court of appeal alleging misappropriation of risk insurance premiums for health-care employees by state officials under the authority of the provincial government.
6. 1120. The Committee notes the contradictory information supplied by the complainant organization and the Government in this case. It notes that the case centres on the accusations of misappropriation made against a number of provincial officials of SYNCASS. The Committee considers that it is not within its remit, in the light of the information available to it, to determine the responsibilities of those involved, that task being a matter for the national judicial authorities, of whose decisions it will take note as appropriate. The Committee further notes that both the complainant organization and the Government report the measures of arrest, detention and administrative sanction applied to the trade union officials Mr Mambu, Mr Ilwa and Mr Sukami from July 2008 onwards. The Committee also notes, however, the information that the commission set up to investigate the payment of risk insurance premiums, which found that funds were being misappropriated, submitted its report in August 2008. In this regard, the Committee recalls that measures designed to deprive trade union leaders and members of their freedom entail a serious risk of interference in trade union activities and, when such measures are taken on trade union grounds, they constitute an infringement of the principles of freedom of association [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 65]. The Committee especially emphasizes the risks of those measures not being accompanied by appropriate judicial safeguards. With regard to the allegations of prolonged detention of trade unionists, the Committee recalls that the requirement that any detainee be brought without delay before the appropriate judge constitutes one of the fundamental rights of the individual and, in the case of trade unionists, freedom from arbitrary arrest and detention and the right to a fair and rapid trial are among the civil liberties which should be ensured by the authorities in order to guarantee the normal exercise of trade union rights [see Digest, op. cit., para. 98]. In these circumstances, the Committee requests the Government to carry out an independent inquiry into the conditions of arrest and detention of the SYNCASS trade unionists Mr Mambu, Mr Ilway and Mr Sukami and, if their arrest and detention are shown not to have been in accordance with these principles, to take appropriate measures to prevent any recurrence of such incidents.
7. 1121. As regards the legal action before the courts and the disciplinary action under way, the Committee notes that neither the complainant organization nor the Government reports any decision. The Committee recalls that the absence of guarantees of due process of law may lead to abuses and result in trade union officials being penalized by decisions that are groundless. It may also create a climate of insecurity and fear which may affect the exercise of trade union rights [see Digest, op. cit., para. 106]. The Committee requests the Government to indicate the nature and the status of the judicial or administrative proceedings currently under way concerning the three SYNCASS BDD officials in connection with allegations of misappropriation of funds, the decisions handed down by the bodies involved and any follow-up.
8. 1122. The Committee notes that in the view of the Government, the SYNCASS BDD committee officials concerned by this case should be considered to have been punished not because of their trade union functions but because of their capacity as agents of the State under the provincial authority. There are therefore no grounds for accusations of interference by the authorities in trade union affairs. The Committee notes that the complainant organization, by contrast, claims that there has been interference in its activities in the form of a disguised attack against a provincial union committee. In this regard, the Committee notes that both the Government and the complainant organization acknowledge the delegation of responsibility to the SYNCASS BDD committee until July 2008 for handling the payment of risk insurance premiums for health-care staff other than doctors in the province. The Committee recalls that while persons engaged in trade union activities or holding trade union office cannot claim immunity in respect of the ordinary criminal law, trade union activities should not in themselves be used by the public authorities as a pretext for the arbitrary arrest or detention of trade unionists [see Digest, op. cit., para. 72].
9. 1123. The Committee notes that according to the complainant organization, the three union officials in question are no longer able to carry on their official trade union duties and, furthermore, have been banned from leaving the town of Bandundu. The Committee notes that the Government provides no information on these points. It recalls that the imposition of sanctions, such as restricted movement, house arrest or banishment for trade union reasons, constitutes a violation of the principles of freedom of association. The Committee has considered it unacceptable that sanctions of this nature should be imposed by administrative action. The Committee also recalls that any procedure for placing an individual under house arrest must be accompanied by all the safeguards necessary to ensure that it is not used for the purpose of impairing the exercise of trade union rights. The Committee requests the Government to provide its observations on the matter of the allegations regarding the impossibility for SYNCASS BDD committee members to carry on their union duties and their confinement to the town of Bandundu.
10. 1124. The Committee notes the complainant organization’s statement to the effect that on 8 August 2008, correspondence containing a list of beneficiaries of the risk insurance for the month of July 2008, addressed to Mr Mambu, was intercepted by two individuals on the orders of the provincial medical inspector. The Committee notes in this regard a letter of 11 August 2008, signed by Mr Mambu and Mr Ilwa, relating to the allegations, according to which the two individuals in question used force against the manager of the “Fils de Bandundu” agency when intercepting the correspondence. The Committee notes that the Government supplies no information in this regard. It recalls that a climate of violence, in which attacks are made against trade union premises and property, constitutes serious interference with the exercise of trade union rights; such situations call for severe measures to be taken by the authorities and, in particular, the arraignment of those presumed to be responsible before an independent judicial authority [see Digest, op. cit., para. 191]. The Committee requests the Government to carry out an independent inquiry into the allegations regarding the interception by force of SYNCASS BDD correspondence on the orders of the provincial medical inspector and, if they are shown to be true, to take the necessary measures to punish those responsible in order to prevent a recurrence of such acts in the future.
11. 1125. The Committee notes the allegations of the complainant organization that the commission responsible for supervising payment of risk insurance premiums ordered the confiscation of the portable computer owned by the SYNCASS BDD committee on the orders of the Governor of the province, in order to seek evidence in support of their accusations. The Committee notes that the computer has never been returned, although the evidence sought appears never to have been found. The Committee takes note of the report submitted by the mission ordered by the Ministry of Justice, which confirms the confiscation of the portable computer on the orders of the provincial governor and the information that the computer has not been returned to the union despite its repeated requests. The Committee notes that the Government supplies no information on this matter. The Committee recalls with concern that the inviolability of trade union premises is a civil liberty which is essential to the exercise of trade union rights. It also recalls that searches of trade union premises should be made only following the issue of a warrant by the ordinary judicial authority where that authority is satisfied that there are reasonable grounds for supposing that evidence exists on the premises material to a prosecution for a penal offence, and on condition that the search be restricted to the purpose in respect of which the warrant was issued [see Digest, op. cit., paras 178 and 185]. Under these circumstances, the Committee requests the Government to indicate whether the portable computer of the SYNCASS BDD committee has been returned to the union and, if not, to take the measures necessary in the absence of a judicial order to the contrary, to have it returned to the union without delay, and to ensure strict adherence to the principles recalled here with regard to searches of trade union assets and premises.
12. 1126. The Committee notes that according to the complainant organization, the authorities are engaged in a media smear campaign to tarnish the image of SYNCASS among the workers. Furthermore, access to the media has been made very difficult for the union. In this regard, the Committee recalls that the right to express opinions through the press or otherwise is an essential aspect of trade union rights. Similarly, the freedom of expression which should be enjoyed by trade unions and their leaders should also be guaranteed when they wish to criticize the government’s economic and social policy [see Digest, op. cit., paras 155 and 157].
13. 1127. The Committee notes the complainant organization’s statement to the effect that the request from the Director of Health Institutions on 10 March 2009 to end the practice of deducting trade union dues at source by state accountants when paying the risk insurance premiums and to set up in its place a mechanism for recovering these dues by the union members, contravenes point 12 of the Protocol of Agreement of 14 November 2007 between the national inter-union body for the public sector and the Government. The Committee notes that the Government supplies no information on this matter. The Committee wishes to recall that the withdrawal of the at-source deduction (check-off facility), which could lead to financial difficulties for trade union organizations, is not conducive to the development of harmonious industrial relations and should therefore be avoided [see Digest, op. cit., para. 475]. The Committee requests the Government to provide a copy of the Protocol of Agreement of 14 November 2007 by which SYNCASS is entrusted with sole responsibility for handling the risk insurance premium payments, and to offer some explanations as to the reasons for changing the previous practice of deducting union dues at source.

The Committee's recommendations

1. 1128. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to carry out an independent inquiry into the conditions of the arrest and detention of the SYNCASS officials Mr Mambu, Mr Ilwa and Mr Sukami and, if it is shown that their arrest and detention did not adhere to the principles recalled here with regard to the arrest and detention of trade unionists, to take appropriate measures to ensure that such situations cannot occur again in the future.
   • (b) The Committee requests the Government to indicate the nature and the status of the current legal or administrative proceedings against the SYNCASS BDD official accused of misappropriation of funds, and to inform it of any decisions handed down by the bodies concerned and any follow-up action.
   • (c) The Committee requests the Government to provide its observations on the allegations that the SYNCASS BDD officials have been unable to carry out their official duties and have been banned from leaving Bandundu.
   • (d) The Committee requests the Government to hold an independent inquiry into the allegations that SYNCASS correspondence was intercepted by force on the orders of the provincial medical inspector and, if they are shown to be true, to take the necessary measures to punish those responsible in order to prevent any recurrence of such acts in future.
   • (e) The Committee requests the Government to indicate whether the portable computer owned by the SYNCASS BDD committee has been returned to it and, if not, to take the necessary measures, in the absence of a judicial order to the contrary, to ensure that it is returned to the union without delay, and to ensure strict adherence in future to the principles recalled here with regard to searches of union assets and premises.
   • (f) The Committee requests the Government to supply a copy of the Protocol of Agreement of 14 November 2007, in which it is claimed to give SYNCASS sole responsibility for managing payments of risk insurance premiums, and to provide an explanation regarding the change in practice of at-source deduction (check-off) of union membership dues.