Rapport intérimaire - Rapport No. 373, Octobre 2014

Cas no 2949 (Eswatini) - Date de la plainte: 23-MAI -12 - En suivi

Allegations: The complainant denounces its deregistration by the Government and the denial through police and military forces of its rights to protest against the deregistration and to celebrate May Day

1. 427. The Committee last examined this case at its October 2013 meeting where it presented an interim report to the Governing Body [see 370th Report, approved by the Governing Body at its 319th Session (October 2013), paras 704–720].
2. 428. The complainant sent additional observations in a communication dated 16 June 2014. The International Trade Union Confederation (ITUC) sent information in relation to the complaint in communications dated 28 October 2013 and 10 October 2014.
3. 429. In the absence of a reply from the Government, the Committee has been obliged to postpone the examination of this case on two occasions. At its meeting in June 2014 [see 372nd Report, para. 6], 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.
4. 430. 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. Previous examination of the case

1. 431. In its previous examination of the case at its October 2013 meeting, the Committee made the following recommendations [see 370th Report, para. 720]:
   • (a) The Committee again urges the Government to ensure that the views of the social partners are duly taken into account in the finalization of the amendments to the IRA and that they are adopted without delay so as to ensure that federations of workers and employers may be registered and function in the country. The Committee requests the Government to indicate the specific steps taken in this regard and to provide a copy of the amendment as soon as it has been adopted.
   • (b) Meanwhile, the Committee firmly expects that the TUCOSWA will be able to effectively exercise all its trade union rights without interference or reprisal against its leaders, in accordance with the principles of freedom of association, including the right to engage in protest action and peaceful demonstrations in defence of their members’ occupational interests.
   • (c) The Committee notes that the Conference Committee on the Application of Standards called on the Government to accept a high-level ILO fact-finding mission to assess any progress made in relation to the implementation of Convention No. 87, including as regards the amendment of the IRA to allow the registration of federations and the registration of the TUCOSWA. The Committee strongly urges the Government to accept this mission without delay, so that it will be in a position to observe tangible progress on the matters raised in the complaint.

B. Additional information from the complainants

1. 432. In a communication dated 16 June 2014, the Trade Union Congress of Swaziland (TUCOSWA) indicates that to avoid a special paragraph in the conclusions of the Committee on the Application of Standards (CAS) during the International Labour Conference (ILC) in 2013, the Government committed in an agreement signed at the International Labour Office on 11 June to take several specific time-bound steps to address long-standing concerns. However, none of these commitments have been implemented. Furthermore, the complainant refers to the conclusions reached by the ILO high-level fact-finding mission which visited Swaziland in January 2014 where the latter found that “no concrete, tangible progress has been made on the various matters concerning the application of Convention No. 87, some of which have been pending for over a decade. The complainant alleges that the Government continues to repress union activities, to arrest and imprison trade unionists and to deny registration of trade unions by invoking laws which it had committed to reform years ago.
2. 433. The complainant recalls that just prior to the 2013 ILC, the Government issued a general notice in May stipulating that pending the amendment of the Industrial Relation Act (2000) (IRA) that would allow for the registration of TUCOSWA the social partners would “work together in order to promote harmonious labour relations and ensure a conducive environment for investment and socio-economic development of the country through decent work and recognition of fundamental principles and rights at work”. As a result, tripartite structures of the country were reinitiated. However, outside of the tripartite meetings TUCOSWA’s activities and programmes were continuously disrupted on the basis that the federation was not registered. Therefore, TUCOSWA requested the Government to take a clear position on its status and its rights on 23 January 2014 during a Labour Advisory Board meeting. When the Government failed to respond by March 2014, TUCOSWA withdrew its participation from tripartite structures pending its registration.
3. 434. The complainant also refers to the efforts by the unions in the textile and apparel, mining, quarrying and related industries, general manufacturing, metal workers and engineering and retail, hospitality and catering sectors to merge in September 2013 to form the Amalgamated Trade Union of Swaziland (ATUSWA). Before launching its congress on 6 September 2013, the union had filed a request for registration and its constitution with the Commissioner of Labour. The legal advisor of the Ministry met with the union leadership and asked for changes in the constitution. Even after complying with the requests, ATUSWA was not registered. On 2 January 2014, the union was told that it could only be registered, if its constitution would be amended. The union duly responded and addressed those issues and clarified the basis upon which the application was founded. In a meeting on 4 April 2014 with the Commissioner of Labour new issues were raised, including the name of the organization. It was demanded that the word “amalgamated” should be taken out, even though another union, the Swaziland Amalgamated Trade Union, had previously been registered without any concerns in this regard. This is one of the delaying tactics that have prevented the registration of ATUSWA for over nine months without any legitimate reason.
4. 435. In relation to the registration of the TUCOSWA, the complainant states that it has challenged the constitutionality of the Government’s refusal to register the federation at the High Court of Swaziland on 11 February 2014. A hearing on the matter was scheduled for 19 March 2014, but unfortunately the Government arrested the union’s lawyer, Mr Thulani Maseko, two days before the hearing, forcing the union to seek a postponement of the hearing date. He was charged with contempt of court after writing an article in The Nation magazine in which he criticised the lack of judicial independence in Swaziland, and remains in jail today. Initially, he was denied a public hearing. Justice Mumcy, who was then presiding over his case, ordered his release. He was rearrested two days later on the order of Chief Justice Ramodibedi, who then subsequently also threatened to arrest Justice Mumcy. According to the complainant, Mr Maseko’s arrest and rearrest over criticism of the lack of judicial independence ironically only serves to confirm his thesis.
5. 436. The complainant adds that Mr Maseko’s arrest for protected union activity was preceded by other trade unionist. In December 2013, five leaders of the Swaziland Transport and Allied Workers Union (STAWU), including its General Secretary Mr Simanga Shongwe, were served with notice of intended prosecution under the Road Traffic Act of 2007 for holding a union gathering in the airport car park. These charges still hang over them today. What is quite remarkable about these charges is that the Road Traffic Act applies to offences on public highways and the airport car park definitely does not fall into that category. Additionally, Mr Basil Thwala, a paralegal officer at STAWU, was arrested following a major bus transport demonstration organized by the trade union in July 2012. He was charged and convicted for offences under both the Road Traffic Act and the Public Order Act for being in the front of the bus station protest. He was arrested and taken to a police station. He had to spend several nights sleeping on the cold floor. While Mr Thwala was initially granted bail, it was later revoked on the basis that he had breached his bail conditions by travelling to a place outside the restriction stipulated in the bail terms although no witnesses appeared in court to verify this allegation. The bail revocation was pronounced by the High Court of Swaziland when he was not even present in the court. He was eventually sentenced to two years imprisonment. While he lodged an appeal two months after his conviction, there was never any indication that it was under consideration. It took the courts less than a month to convict him but his appeal, filed on a certificate of urgency, was never dealt with. Finally, he was released after serving his full sentence.
6. 437. The complainant denounces the fact that police and security forces continue to disrupt union activities. As an example, armed police officers stopped the TUCOSWA from participating in a memorial service for Nelson Mandela in November 2013. The month before, TUCOSWA organized a march to draw attention to insufficient measures against the high prevalence of HIV/AIDS in the country and armed police also stopped that march arguing TUCOSWA could not march as it was a deregistered organization. The police surrounded the venue where they were assembled and did not allow them to leave.
7. 438. Police also interfered in a peaceful protest march organized by TUCOSWA in April 2014 and attended by broader civil society groups against the King’s Proclamation of 1973 and its impact on freedom of association and civil liberties. The TUCOSWA requested permission for the march but the Manzini Municipal Council denied the federation to proceed stating that “April 12 is one most contentious date on which peace and stability in the country is threatened.” The march was intended to proceed from Jubilee Park to St Theresa Hall in Manzini on 12 April 2014. Mr Vincent V. Ncongwane, TUCOSWA General Secretary, and Mr Sipho Kunene, TUCOSWA Deputy President, were arrested at a security roadblock mounted at Mhlaleni in Manzini. They were detained at the Manzini police headquarters and were denied access to legal representation. Mr Ncongwane was transferred to the Mafutseni Police Station 20 kilometres from Manzini.
8. 439. The police further arrested other groups of workers in all the various security check points mounted on the roadblocks leading to Manzini, detained and later dropped them in remote places with some having to travel long distances on foot at night to get to the nearest public road. Among them were the President of the National Public Services and Allied Workers Union, Mr Quinton Dlamini and the General Secretary of the Private and Public, Transport Workers Union, Mr Thandukwazi Bheki Dludlu.
9. 440. Finally, the complainant states that existing legislation severely limits the right to freedom of association and pending legislation threatens to further imperil those rights. The IRA, which has been interpreted to provide the legal basis to refuse union registration and impose civil and criminal liability on trade unionists (section 40(13) and section 97(1)), continues to be in force.
10. 441. In July 2013, the Government tabled before Parliament the Industrial Relations (Amendment) Bill No. 14 (2013) seeking to amend the IRA which has, however, excluded all the contributions made by the social partners in a properly constituted Labour Advisory Board. In any event, Parliament did not take the Bill under consideration before it was dissolved in September 2013. It was again tabled in Parliament in February 2014 without the contributions of the social partners and withdrawn on 14 April 2014 without any explanation. While it is true that the Bill establishes a procedure for the registration of federations previously pointed out as a lacuna in the IRA by the Industrial Relations Court, it introduces serious shortcomings when it comes to compliance with rights guaranteed under Convention No. 87. Section 32 provides that a federation seeking registration must complete a prescribed form and submit a copy of its constitution to the Commissioner of Labour who can also require the submission of any other information. The prescribed form that must be “properly completed” on submission of the registration application is not annexed in a schedule to the amendments and it is not clear whether its requirements are of formal or substantive nature. Furthermore, the Bill is extending the discretionary powers of the Commissioner of Labour who may require further information in support of the application and “consult whoever” she/he wishes in this decision.
11. 442. There is no time frame within which the Commissioner of Labour is required to have acted upon receipt of application. Paragraphs (a) to (v) of the same section stipulate that the constitution of a federation must include “a provision for a general meeting open to all members at least once a year and for the giving of at least twenty one days’ notice of that meeting to all members”. This would mean that TUCOSWA would have to conduct a meeting with its almost 50,000 members on an annual basis to decide on the policies of the federation which is not only not feasible but also violates their right to draw up their constitutions and rules in full freedom.
12. 443. In a communication dated 28 October 2013, the ITUC denounces the shutting down of a meeting organized by the TUCOSWA on September 2013. More specifically, the TUCOSWA, along with the ITUC and the Congress of South African Trade Unions (COSATU), had planned a Global Inquiry Panel to which they invited international speakers to listen to testimonies and present findings about fundamental rights at work and working conditions. This meeting was intended to an audience of 200 persons consisting of trade unionists, workers, pro-democracy civil society groups as well as journalists, and was planned on 6 September 2013, on the occasion of Swaziland’s 45th Independence Day. However, on 5 September 2013, a roadblock was put up by the police and the invited speakers were hindered from pursuing their route and instead taken to the police station for interrogation, and later released. The following day, the police surrounded the building where the meeting was scheduled to take place informing the gathering that it was cancelled.
13. 444. According to the ITUC, the TUCOSWA reported having notified both the Commissioner of Labour and the police of the Global Inquiry Panel on 28 August 2013, but that while the Labour Commissioner merely requested the postponement of the meeting to allow for government participation, the police undertook an investigation into the venue of where the Global Inquiry Panel was intended to take place and warned management that it would lead to a riot. However, no cease and desist order was issued from either side at any point.
14. 445. Upon the arrival of the three international panellists to Manzini on 5 September, they were stopped at a roadblock and taken to Manzini Regional Police Station where the police asked them about their intentions. They were all released on the same day. The following day, the Regional Police Commissioner of Manzini arrived, accompanied by a large group of senior police officers, at the hotel where the participants to the planned event were residing and surrounded the hotel. The police demanded to talk to the panellists and the ITUC representative but refused to address the TUCOSWA Secretary-General, verbally ordering the meeting to end. The police could not produce any written court order or other written justification to stop the planned meeting. The reason given by the police was that such events could not take place during Independence Day during which “Swazis are to celebrate”, and rejected the proposal put forward by the TUCOSWA to postpone the event to the following day. Other proposals made by the TUCOSWA to address public order or security concerns were likewise rejected, such as the organization of a smaller meeting with only the panellists and the workers. According to the ITUC, the police simply responded “Let us not enter into a dialogue, this meeting will not take place under any circumstances.”
15. 446. Finally, the TUCOSWA leadership and two panellists explained the situation to the workers waiting in front of the hotel who then proceeded to a peaceful dispersal. That same day, TUCOSWA Secretary-General and two other officials were prevented from attending a press conference about the event in Johannesburg as they were stopped by the police at two roadblocks and not allowed to leave the country.
16. 447. In a communication dated 10 October 2014, the ITUC denounces the fact that the Minister of Labour and Social Security held a press conference on 8 October 2014 during which she announced a Cabinet resolution deciding that pending legal reforms all federations should stop operating immediately. According to the ITUC; this decision will affect not only TUCOSWA and ATUSWA, but also the Federation of the Swaziland Employers and Chamber of Commerce and the Federation of Swazi Business Community. The ITUC recalls that the Committee on Freedom of Association has called upon the Government to allow TUCOSWA to effectively exercise all its trade union rights without interference or reprisal against its leaders, in accordance with the principles of freedom of association, including the right to engage in protest action and peaceful demonstrations in defence of their members’ occupational interests. The ITUC regrets that the Government has completely ignored these recommendations as well as the decision of the Industrial Court which recognized that TUCOSWA could operate in terms of its own constitution. Instead, the Government has now suspended workers’ right to freely associate and to carry out trade union activities completely.

C. The Committee’s conclusions

1. 448. The Committee regrets that, despite the time that has elapsed since the presentation of the complaint, the Government has not replied to the complainant’s allegations even though it has been requested several times to do so, including through an urgent appeal.
2. 449. Hence, in accordance with the applicable procedural rules [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee is obliged to present a report on the substance of the case without being able to take account of the information which it had hoped to receive from the Government.
3. 450. The Committee reminds the Government 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 practice. The Committee remains confident that, if the procedure protects governments from unreasonable accusations, governments, on their side, will recognize the importance of presenting, for objective examination, detailed replies concerning allegations made against them [see First Report, para. 31].
4. 451. However, the Committee observes that the Government has provided some updated information in relation to the complaint in the framework of the ILO high-level fact-finding mission to Swaziland on the application of Convention No. 87 which was carried out in January 2014, as well as in a written communication submitted to the Committee on the Application of Standards of the International Labour Conference in June 2014.
5. 452. The Committee recalls that this case concerns allegations of the revocation of the registration of a federation by the Government and the denial through police and military forces of its right to protest against the revocation and to fully exercise its trade union rights.
6. 453. With regard to the amendment of the Industrial Relations Act to allow for registration of federations, the Committee takes note of the complainant’s indication that, in July 2013, the Government tabled before Parliament the Industrial Relations (Amendment) Bill (2013) seeking to amend the IRA which has, however, allegedly excluded all the contributions made by the social partners in a properly constituted Labour Advisory Board. Parliament did not take the Bill under consideration before it was dissolved in September 2013 and the Bill was again tabled in Parliament in February 2014 (still without the contributions of the social partners) and withdrawn on 14 April 2014 without any explanation. While the complainant considers that the Bill establishes a procedure for the registration of federation previously pointed out as a lacuna in the IRA by the Industrial Relations Court, it also introduces serious shortcomings when it comes to compliance with rights guaranteed under Convention No. 87.
7. 454. The complainant specifically addresses section 32 of the Bill which provides that a federation seeking registration must complete a prescribed form and submit a copy of its constitution to the Commissioner of Labour who can also require the submission of any other information. The prescribed form that must be “properly completed” on submission of the registration application is not annexed in a schedule to the amendments and it is not clear whether its requirements are of formal or substantive nature. Furthermore, the Bill extends the discretionary powers of the Commissioner of Labour who may require further information in support of the application and “consult whoever” she/he wishes in this decision. There is no time frame within which the Commissioner of Labour is required to have acted upon receipt of application. Paragraphs (a) to (v) of the same section stipulate that the constitution of a federation must include “a provision for a general meeting open to all members at least once a year and for the giving of at least twenty one days’ notice of that meeting to all members”. According to the complainant, this would mean that the TUCOSWA would have to conduct a meeting with its almost 50,000 members on an annual basis to decide on the policies of the federation which is not only not feasible but also violates their right to draw up their constitutions and rules in full freedom.
8. 455. The Committee takes note of the written communication provided by the Government to the Committee on the Application of Standards (CAS) during the 103rd Session of the ILC (May–June 2014) whereby it specified that Parliament was dissolved on 31 July 2013 and Cabinet was fully constituted on 4 November 2013. Parliament officially opened again on 7 February 2014. This situation reduced parliamentary activity by seven months and left the Government with five months to comply with its undertakings before the ILC. It rendered it difficult for the Government to take the necessary legislative steps as there was no legislative authority to ensure that the amendments to the IRA were passed into law. The Industrial Relations (Amendment) Bill No. 14 of 2013, for instance, was one of over 27 bills, which were before Parliament when it dissolved. However, the Government has shown its commitment and prioritized the Bill and it was the first Bill to be tabled after the opening of Parliament (Industrial Relations (Amendment) Bill No. 1 of 2014).
9. 456. The Committee also notes from the Government’s statement to the CAS that the Bill had been withdrawn on 10 April 2014 at the request of a parliamentary committee due to concerns expressed by another country as well as by the Swazi social partners as to its insufficient content. At that time, the Labour Advisory Board was no longer operational since the workers unions had withdrawn from all statutory bodies, citing dissatisfaction with disruption from the security forces of the TUCOSWA activities. However, the Government representative added that due to the importance and urgency of the Bill, negotiations with the social partners were currently under way. As a result of the ongoing consultations, consensus had been reached on 19 May 2014 regarding part of the new Bill, but employers and workers still did not agree on one amendment; broader consultation was required to resolve the matter.
10. 457. The Committee recalls that, following the deregistration of the TUCOSWA, the Government also deregistered two employer federations, namely the Federation of Swaziland Employers and Chambers of Commerce (FSE–CC) and the Federation of Swaziland Business Community (FESBC), and was since called upon by the ILO supervisory bodies to facilitate their registration along with TUCOSWA. The Committee notes that the ILO high-level fact-finding mission had underlined to the Government that, although the IRA (Amendment) Bill was yet to be passed, the urgent registration and recognition of the TUCOSWA, the FSE–CC and the FESBC were critical to ensuring that adequate progress had actually been achieved. The Committee also notes the views expressed by the social partners to the ILO mission that once federations are registered, the relations between the social partners would be enhanced and the remaining issues could be dealt with more effectively.
11. 458. The Committee is bound to express again its deep concern that the matter concerning the TUCOSWA’s registration is yet to be resolved more than two years since its registration was nullified and despite the Committee’s and other ILO supervisory bodies firm recommendations to the Government to amend without delay the IRA so as to ensure that federations of workers and employers may be registered and function in the country. The Committee firmly recalls that the right to official recognition through legal registration is an essential facet of the right to organize since that is the first step that workers’ or employers’ organizations must take in order to be able to function efficiently, and represent their members adequately. If the conditions for the granting of registration are tantamount to obtaining previous authorization from the public authorities for the establishment or functioning of a trade union, this would undeniably constitute an infringement of Convention No. 87 [see Digest of decisions and principles of the freedom of Association committee, fifth (revised) edition, paras 294–295]. While noting from Government statement No. 12/2014 issued in October 2014 that an amendment bill, drafted in consultation with the workers’ representatives and employers, has been prepared for tabling in Parliament, the Committee expects the immediate adoption of amendments to the IRA by Parliament in a manner so as to ensure fully the freedom of association rights of the TUCOSWA and of all workers’ and employers’ federations that have historically represented their members’ interests in the country. The Committee urges the Government to take steps immediately to preserve the workers’ and employers’ federations and allow them to operate while awaiting the amendment of the IRA by the Parliament so as to ensure the continuity of these organizations. The Committee urges the Government to keep it informed of the progress made in this regard.
12. 459. Furthermore, the Committee notes the complainant’s indication that it challenged the constitutionality of the Government’s refusal to register the federation at the High Court of Swaziland on 11 February 2014 and that a hearing on the matter was scheduled for 19 March 2014. But the Government arrested the union’s lawyer two days before the hearing, forcing the union to seek a postponement of the hearing date. Mr Thulani Maseko, the lawyer handling the constitutional challenge, is still in jail. Mr Maseko was sentenced to two years in prison by the High Court of Swaziland in relation to articles in the press whereby he questioned the impartiality and independence of the judiciary. Allegedly, the judge who first ordered his release was then threatened with arrest. The Committee wishes to recall, as a general principle, that the right to express opinions through the press or otherwise is an essential aspect of trade union rights. Moreover, 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]. The Committee also recalls that the systematic apprehension and detention of trade unionists, leaders of employers’ organizations or other individuals linked to actions relating to their legitimate demands constitute an extremely serious restriction to freedom of association. The Committee is deeply concerned by the conviction of Mr Maseko who was handling the union’s constitutional challenge before the High Court of Swaziland and the especially long prison sentence that he has been handed down merely for a statement in the press. The Committee urges the Government to take steps immediately for the unconditional release of Mr Maseko and to provide compensation for the damages suffered.
13. 460. Furthermore, the Committee is deeply concerned by the complainant’s allegations that Justice Mumcy, who first ordered the release of Mr Maseko, was also threatened with arrest. In this regard, the Committee recalls that during the 102nd Session of the ILC (June 2013) the CAS had called the Government’s attention to the principles concerning the intrinsic link between freedom of association and democracy and the importance of an independent judiciary in order to guarantee full respect for these fundamental rights. Therefore, the Committee urges the Government to take all steps to ensure full respect for these fundamental principles and to ensure that Justice Mumcy is not subjected to threats for discharging her duties in accordance with the mandate bestowed upon her.
14. 461. Finally, the Committee requests the Government and the complainant to keep it informed of the decision of the High Court of Swaziland on the constitutional challenge concerning the Government’s refusal to register the TUCOSWA.
15. 462. With regard to its previous recommendation that the TUCOSWA should be able to effectively exercise all its trade union rights without interference or reprisal against its leaders, the Committee notes with concern that the complainants denounce the fact that police and security forces continue to disrupt the union activities. According to the complainant, it requested the Government to take a clear position on its status and its rights in January 2014 during a Labour Advisory Board meeting and, considering that the Government had failed to respond, TUCOSWA withdrew its participation from tripartite structures pending its registration since March 2014. The Committee also notes from the ILO high-level fact-finding mission report that, when asked whether the Government’s General Notice of May 2013 did not provide the federation (albeit not officially registered) with all rights and benefits, as purported to be the case by the Government, the TUCOSWA representatives replied to the mission that the Government had told them that they were a “non-entity” and further referred to a letter by the Attorney-General of September 2013 which stated explicitly that the General Notice did not confer TUCOSWA any rights that would have been afforded by the IRA. According to the complainant, in reality, the General Notice served only the Government’s purposes to have TUCOSWA representatives in the tripartite forums, feigning a semblance of normalcy in tripartite relations, while denying all other rights.
16. 463. In this respect, the Committee takes note, with deep concern, of the allegations relating to the shutting down by security forces of a meeting planned on September 2013 by the TUCOSWA, along with the ITUC and the COSATU. More specifically, the TUCOSWA had planned a Global Inquiry Panel to which it invited international speakers to listen to testimonies and present findings about fundamental rights at work and working conditions. The meeting, planned on 6 September 2013 on the occasion of Swaziland’s 45th Independence Day, was intended to an audience of 200 persons consisting of trade unionists, workers, pro-democracy civil society groups as well as journalists. According to the allegations, on 5 September 2013, a roadblock was allegedly put up by the police and the invited speakers were hindered from pursuing their route and instead taken to the police station for interrogation, and later released. The following day, the police surrounded the building where the meeting was scheduled to take place informing the gathering that it was cancelled.
17. 464. The Committee notes, from the statement of the Government to the ILO high-level fact-finding mission that the invitation from the workers union to, amongst others, a former minister from a neighbouring country, caused a significant challenge to the country as it felt responsible for the security of the former high-level official. The Government added that the workers had not informed the Government authorities in a timely manner – stated to be one day notice only – and that accordingly, the Government did not feel in a position to ensure his safety and security. Moreover, the Government declared that the TUCOSWA deliberately chose to organize such an event on the country’s Independence Day. While the nature of the event would have conflicted with the objectives of Independence Day since, it was reported by the police that, TUCOSWA was organising the event together with the “Swaziland United Democratic Front” and was planning the distribution of a pamphlet.
18. 465. The Committee notes that the TUCOSWA representatives provided the ILO high-level fact-finding mission with a letter from the Attorney-General dated 4 September 2013 indicating that he would seek an injunction against the holding of the event as the General Notice which provides guiding principles for engaging with the TUCOSWA cannot include the possibility for them to take protest action. The letter states that, if that were to be the understanding, then there would be no need for the IRA which governs the rights and responsibilities of registered federations. TUCOSWA is not a registered organization and therefore cannot avail itself of all those rights. The Industrial Court allegedly confirmed this understanding.
19. 466. The Committee expresses its deep concern over the report by the complainants of systematic interference by security forces against the TUCOSWA activities, notably on the argument that it is a deregistered organization enjoying therefore limited trade union rights. The Committee also notes with deep regret reports of similar situations faced by other federations seeking registration.
20. 467. Moreover, the Committee takes note with deep concern from Government press statement No. 12/2014 issued in October 2014 that, pending the amendment of the IRA by Parliament, all federations should stop operating immediately. All memberships of the federations in statutory boards were also terminated. The Committee observes that such governmental decision affects not only the TUCOSWA and other workers’ federation seeking registration but also the FSE–CC and the FESBC. The Committee deeply regrets this action which would appear to be contrary to its previous recommendation that the Government allow TUCOSWA to effectively exercise all its trade union rights without interference or reprisal against its leaders, in accordance with the principles of freedom of association, including the right to engage in protest action and peaceful demonstrations in defence of their members’ occupational interests.
21. 468. The Committee expresses its deep concern that such a situation cannot foster a meaningful tripartite social dialogue or a rapid solution to the outstanding issues in this case and expects that all the workers’ and employers’ federations working within the country will be fully assured their freedom of association rights until such time as they may register under the amended law. The Committee once again strongly urges the Government to take all necessary measures to ensure that the TUCOSWA may fully exercise its trade union rights, including the right to engage in protest action and peaceful demonstrations in defence of its members’ occupational interests, and to prevent any interference or reprisal against its leaders, in accordance with the principles of freedom of association.
22. 469. In conclusion, the Committee expresses its deep concern over the absence of significant progress in the present case more than two years after the registration of the TUCOSWA was nullified, despite clear recommendations from the Committee and the ILO technical assistance provided. The Committee strongly urges the Government to take all necessary steps as a matter of urgency to resolve the case and to keep it informed in this regard.

The Committee’s recommendations

1. 470. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expects the immediate adoption of amendments to the IRA by Parliament in a manner so as to ensure fully the freedom of association rights of the TUCOSWA and of all workers’ and employers’ federations that have historically represented their members’ interests in the country. The Committee urges the Government to take steps immediately to preserve the workers’ and employers’ federations and allow them to operate while awaiting the amendment of the IRA by the Parliament so as to ensure the continuity of these organizations. The Committee urges the Government to keep it informed of the progress made in this regard.
   • (b) In the meantime, the Committee once again strongly urges the Government to take all necessary measures to ensure that the TUCOSWA is able to fully exercise its trade union rights, including the right to engage in protest action and peaceful demonstrations in defence of its members’ occupational interests, and to prevent any interference or reprisal against its leaders, in accordance with the principles of freedom of association. The Committee expects that all workers’ and employers’ federations working within the country will be fully assured their freedom of association rights until such time as they may register under the amended law.
   • (c) The Committee requests the Government and the complainant to keep it informed of the decision of the High Court of Swaziland on the constitutional challenge to the Government’s refusal to register the federation.
   • (d) The Committee urges the Government to take steps immediately for the unconditional release of Mr Maseko and to provide compensation for the damages suffered.
   • (e) The Committee is deeply concerned by the complainant’s allegations that Justice Mumcy, who ordered the release of Mr Maseko, was also threatened with arrest. Observing that an independent judiciary is essential to ensuring the full respect for the fundamental freedom of association and collective bargaining rights, the Committee urges the Government to ensure full respect for this principle and to ensure that Justice Mumcy is not subjected to threats for discharging her duties in accordance with the mandate bestowed upon her.
   • (f) The Committee expresses its deep concern over the absence of significant progress in the present case more than two years after the registration of the TUCOSWA was nullified, despite clear recommendations from the Committee and the ILO technical assistance provided. The Committee strongly urges the Government to take all necessary steps as a matter of urgency to resolve the case and to keep it informed in this regard.
   • (g) The Committee draws the Governing Body’s special attention to the extreme seriousness and urgent nature of this case.