Individual Case (CAS) - Discussion: 2013, Publication: 102nd ILC session (2013)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Eswatini (Ratification: 1978)

A Government representative, thanked the social partners and the ILO for the support and encouragement the Government had received when dealing with the issues raised by the Committee of Experts. His Government was confident that the progress achieved demonstrated its commitment to complying with international labour standards both in law and practice. Accordingly, it was appropriate that this case be removed from the special paragraph. With regard to the issue of registration of federations, he stated that while the drafting of the Industrial Relations Act (IRA) of 2000 involved tripartite structures, an error of leaving out a provision for the registration of federations was made, resulting in a lacuna in the law. This lacuna was later discovered by the Attorney-General’s Office which had advised on an amendment to the Act. The advice of the Attorney-General’s Office was subsequently confirmed by the Industrial Court in Case No. 342/12. This lacuna did not only affect workers’ federations, but employers’ federations as well. Initially, the IRA had no provision for the registration of federations until the social partners, in developing the Act, had decided that in order for federations to be legitimate and operate in the country, they had to be registered. Hence, an unregistered federation would not be legitimate under the IRA. When the registration issue had come before the Industrial Court, the Court confirmed that in the current legislative scheme, there was no provision for the registration of federations. Noting that the Government had already started working on the IRA amendment, the Court encouraged the Attorney-General to prevail upon Parliament “to give the matter the urgency it deserve[d] in light of the country’s obligations under the various international Conventions”. Following this judgment, the parties had agreed to work together.

The speaker referred to a written response his Government had submitted in Case No. 2949, lodged by the Trade Union Congress of Swaziland (TUCOSWA) with the Committee on Freedom of Association, in which it had explained the reasons for the removal of the workers’ federation from the Register of Federations. The Committee on Freedom of Association had considered this case in March 2013 and on that occasion had suggested the amendment of the IRA so as to allow for the registration of federations. The Government, working together with the social partners, had taken concrete steps to comply with the Industrial Court directive and to address the recommendations of the Committee. In this regard, several consultative meetings between the Government, Worker and Employer representatives had been held. Following these consultations, the parties had agreed on the principles that would guide tripartite relations in the country. These principles, which were a product of consultation and consensus, had been published in the Government Gazette as General Notice No. 56 of 2013 (cited as Principles Guiding Tripartite Labour Relations between Swaziland Government, Workers and Employers Notice, 2013). They allowed for the restoration of all tripartite structures, collective bargaining and tripartite consultations. The speaker indicated that the Government had received a letter from TUCOSWA advising of its decision to resume participation in all tripartite structures. This demonstrated unequivocally the full resumption of the good relations between the Government and its social partners. Thus, upon the return of the tripartite delegation to Swaziland, a meeting of the Social Dialogue Committee would be called to develop a plan of action for the next 12 months. The Government had approved and published the amendments to the IRA to provide for the registration of federations, which had been prepared in consultation with the social partners and the ILO (Bill No. 14 of 2013). The Bill was now on its way to Parliament, where further inputs were required from all stakeholders.

In October 2010, the Government, in line with the recommendations of the Committee of Experts, had received a Tripartite High-level Mission, which investigated the country’s compliance with the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). A report of the High-level Mission, together with its recommendations, had been received in December 2010. In order to facilitate the implementation of the recommendations, the ILO had provided technical assistance to, among other things, review the selected legislation. The report from the ILO consultancy had been circulated among the social partners in January 2012 and had formed the agenda for meetings of the Social Dialogue Committee, scheduled for February and March 2012. However, these meetings had been cancelled at the request of workers. Following the High-level Mission, the Government had made some progress, but updates in this respect could not be provided, mainly due to the fact that tripartite consultations and social dialogue in the country had encountered serious challenges throughout 2012 and the first quarter of 2013, which resulted in the tripartite structures not being operational. However, now that the tripartite partners had agreed on working arrangements, the Government was of the view that all of the outstanding issues, as set out in the report of the Committee of Experts, would be attended to as a matter of urgency. Notwithstanding the challenges highlighted above, the Government had made progress on the following issues. The Public Service Bill had been resubmitted to the social partners for review and consideration. The Government stood ready to finalize the Bill in consultation with the social partners and the ILO. With regard to the determination of a minimum service in the sanitary services, the Government was confident that, with the restoration of relations with the social partners, this matter would be finalized before the end of 2013. A proposal to amend sections 40 and 97 of the IRA had been tabled before the Labour Advisory Board for consideration in 2012 and formed part of the agenda for the Social Dialogue Committee. The Government firmly hoped that the amendments would be effected. Moreover, a Bill (Correctional Services Bill) had been drafted and tabled before the National Steering Committee on Social Dialogue for its consideration and input in 2012. However, progress on this issue would be realised once the Committee resumed its business. The plan of action would give priority to all issues relating to freedom of association and collective bargaining. With regard to the King’s 1973 Proclamation, in the Government’s view, (given to the ILO and acknowledged in the 2013 Report of the Committee of Experts) there was no state of emergency in the country. Extensive information in this regard had been provided to the social partners. As proposed by the Committee of Experts, the Government would nevertheless convene a meeting with the social partners to discuss this issue and was confident that this would put the matter to rest. Furthermore, the Government had made a decision to amend the Public Order Act of 1963 and to adopt the Proposed Code of Good Practice. In this regard, the Attorney-General was making the necessary amendments in consultation with line ministries and other international organizations. The Government thanked the ILO and the social partners for developing a code/guideline to regulate the relationship between parties during protest action, demonstrations and other industrial action, as an interim measure, while the Public Order Act was being amended. It was necessary to finalize and adopt the code, which should continue to be a blueprint guiding relations in industrial action. The Government had also agreed to amend the Suppression of Terrorism Act, especially the definition of “terrorist” and, in this respect, the Attorney-General was working with the line ministries and international agencies concerned. The Government was committed to streamlining social dialogue activities. In 2012–13, two tripartite delegations had visited South Africa and Norway on study tours. These visits had enabled the team to benchmark mandates, governance structures and best practice for meaningful and effective social dialogue in Swaziland. The Government expressed its thanks and gratitude to the Governments and social partners of these two countries for imparting their experiences, sharing their knowledge and providing advice on good practice.

The speaker noted that May Day was a paid public holiday and that workers celebrated this day. As was the practice, the police meet with organizers of any public gathering in order to discuss, among other issues, logistics and security. The meetings between the organizers of May Day celebrations had been within the normal scope of work of the police. Noting the regrettable misunderstanding between the police and the organizers of the celebrations, the Government requested that it be allowed time to address this matter. The initial investigations indicated, however, that there had been no raids of TUCOSWA offices or house arrests; rather the police had invited TUCOSWA leadership for a brief discussion, which they had duly honoured. The Government nevertheless assured the Committee that such an incident would be avoided in the future once the provisions of the general notice were implemented; the code/guideline were approved to regulate the relationship between the parties during protest action, demonstrations and other industrial action; and the ILO facilitated further training for the Government, including the police and the social partners on various ILO Conventions and human rights instruments. The Government wished to reassure the Committee that the principles of freedom of association, as articulated in the Convention, would be fully adhered to. It hoped that as a member State of the ILO, it could continue relying on ILO technical assistance in this respect. He stressed that the case should be removed from the special paragraph.

The Worker members recalled that the Convention guaranteed the right of workers and employers to establish and to join organizations of their own choosing without previous authorization. Thus constituted, those organizations must be able to manage their affairs freely and could not be dissolved or suspended by administrative authority. Freedom of association was a human right and the precondition for healthy social dialogue – and hence for social peace. The Worker members expressed their concern at the trade union situation in Swaziland, where TUCOSWA, a merger of Swaziland’s three union federations (the Swaziland Federation of Trade Unions (SFTU), the Swaziland Federation of Labour (SFL) and the Swaziland National Association of Teachers (SNAT)) was no longer recognized by the Government and therefore liable to have its registration revoked, in violation of Article 5 of the Convention. The trade unions were currently up against a climate of extreme violence; trade union leaders were harassed, brutalized and arrested. During the 1 May 2013 celebrations for example, the police occupied TUCOSWA’s headquarters and arrested its President, Barnes Dlamini, and its Secretary-General, Mduduzi Gina. At the same time their colleagues Vincent Ncongwane, Secretary-General, Muzi Mhlanga, Second Deputy Secretary-General, and Jabulile Shiba, General Treasurer, were placed under house arrest. As a result, the planned demonstration and festivities had to be cancelled. Previously, on 12 April 2013, Wonder Mkhonza, Deputy Secretary-General of the Swaziland Processing, Refining and Allied Workers Union had been arrested for possession of political tracts. The Worker members recalled that the arrest of union officials and trade unionists, even briefly, because of their union membership or activities was contrary to the principles of freedom of association. Any deprivation of freedom of movement was an obstacle to the exercise of trade union rights and thus a serious violation of civil liberties.

The Worker members observed that the IRA violated the Convention as it did not allow union federations such as TUCOSWA to register. This had been confirmed by the courts in a decision handed down on 26 February 2013 which, in addition, ordered the Government and TUCOSWA to negotiate a solution to the federation’s registration. The Worker members stressed the Committee on Freedom of Association’s declaration that a ban on the registration of a trade union that had previously been legally recognized could not take effect until before the deadline for appealing against the decision had expired, or if a decision taken by a court of first instance had not yet been confirmed on appeal. Setting conditions for registration that were tantamount to requiring prior authorization from the public authorities to set up a trade union or for it to function was incontrovertibly a violation of the Convention. In practical terms, such a situation was liable to hinder severely the possibility of establishing a trade union and thereby constituted a denial of the right to do so without prior authorization. The administrative authorities should not be able to deny an organization registration simply because they considered that it might engage in activities that went beyond normal trade union matters. Respect for freedom of association was part and parcel of a democracy, and vice versa. The Worker members emphasized that, according to the principles embodied in the Convention, the public authorities must refrain from any form of intervention that might restrict the exercise of the right to establish and join trade unions. Yet several legal texts in force in Swaziland did not respect the principle of non-interference at all. Article 14 of the Constitution stipulated that peaceful assembly and association was inviolable, but, at the same time, article 25 provided that the principle could be restricted in the interest, inter alia, of public morality. Although the Committee on Freedom of Association had declared that the right to hold meetings was an essential component of freedom of association and that public authorities must refrain from any form of intervention that was liable to restrict that right, unless its exercise was such as to endanger public morality, reasons that were vaguely defined as involving public morality could not be deemed to be a threat to public order.

With regard to the public service, the Worker members recalled that a Bill was currently being discussed in the two chambers of Parliament but that it had not been adopted within the deadline and the procedure had had to begin all over again, which showed the advantage of the workers’ organizations being freely and broadly consulted during the preparation and implementation of legislation affecting their interests. The Worker members noted for several years that the Committee had been asking the Government to have the 1963 Public Order Act amended, yet the Government had still not supplied any information on steps it might have taken to ensure that the Act was not used to justify interference in union meetings or activities in support of union demands. As to the amendment of the legislation guaranteeing prison staff the right to organize in defence of their economic and social interests, the Minister of Justice and Constitutional Affairs had submitted the Correctional Services (Prison) Bill to the Social Dialogue Committee on 13 July 2011. Not being able to examine the Bill, however, the social Dialogue Committee passed it on to the Cabinet. The Cabinet, in turn, considering that the social partners should have a say in the drafting of the text, had transmitted it to the Labour Advisory Council in September 2012. The Worker members were worried that the Bill appeared to have been set aside.

The Worker members were also concerned about the situation in the education sector, where many teachers were currently employed on fixed-term contracts for several years consecutively. Collective bargaining in the sector was conducted through a joint negotiating forum, but the Government representatives were constantly obliged to refer back to the Minister, which meant that the negotiations never had any real impact. The measures to arrest and detain trade union leaders constituted a serious violation of the principle of freedom of association. The right to organize public meetings, including rallies, constituted an important aspect of trade union rights. The case had unfortunately been on the Committee’s agenda for far too long and there seemed to be no way of pressuring the Government to take appropriate action. The Committee should therefore adopt a firm conclusion.

The Employer members welcomed the information provided by the Government indicating that steps were being taken to deal with the registration of trade unions and to strengthen social dialogue. Although they considered that it was an extremely serious case, they perceived some progress from the information provided by the Government, which would have to be assessed by the Committee of Experts. The Committee of Experts had examined this case on 19 occasions and the Conference Committee had included this case in a special paragraph in 2009 and 2010. This case was also examined in 2011 when this Committee considered the conclusions and recommendations of the Tripartite High-level Mission that had visited the country in October 2010. The following three issues were considered in 2011: the violation of civil liberties; the interference in trade union activities; and the lack of social dialogue. On that occasion, the Employer members had already noted a change in the Government’s attitude. However, they considered that this change of attitude had to be confirmed by future actions and thus encouraged the Government to make use of ILO technical assistance. In 2011, the Committee concluded that as long as the legislation restricting freedom of association and basic civil liberties was in force, compliance with the Convention was not ensured. It thus requested the Government to intensify its efforts to institutionalize social dialogue and to provide a roadmap for the implementation of the long called-for measures. This year, the Committee of Experts’ observation dealt with the same three issues.

With regard to the Public Service Bill, noting the Government’s willingness to work with the social partners in order to enact the law, the Employer members encouraged the Government to provide information on the progress made and expressed the hope that it would be in full compliance with the Convention, and that it would include access to a complaints procedure with the possibility of judicial proceedings with enforcement authority. The Employer members expressed the hope that the Government would resume discussions with the social partners in the framework of the Social Dialogue Committee on the recommendations made by the ILO and that progress could be reported in the near future in this regard. In particular, the Employer members encouraged the Government to provide information on the outcome of the discussions carried out with the social partners on the status of the 1973 Proclamation, as well as on the amendment of the 1963 Public Order Act. They expressed the hope that the progress achieved during the last 12 months would continue and that the Government would pursue its work in cooperation with the ILO.

Regarding the determination of the minimum services in the sanitary services, the Employer members noted that the Committee of Experts had been requesting the Government to amend the IRA in order to recognize the right to strike in the sanitary services. In this respect, the Employer members reiterated their position that the Convention did not contain an explicit reference to the right to strike and recalled that their position had been established in detail during last year’s discussion on the General Report and General Survey. They continued to rely on this position. There was no consensus in this Committee concerning the fact that the right to strike was recognized in the Convention. Accordingly, they were of the view that the Committee of Experts should refrain in the future from requesting the Government to amend the IRA in order to recognize the right to strike in the sanitary services because this fell outside the scope of its mandate. This should not be construed as an indication that this was not an important case. The Government had to reply on many other issues and the Employer members hoped that they would be able to note progress in the next months and that the Government would continue to cooperate with the ILO.

The Worker member of Swaziland recalled that the national Constitution, adopted in 2005, contained a Bill of Rights, which guaranteed freedom of association. However, the Government had continued to violate these rights flagrantly. TUCOSWA had been registered on 25 January 2012, following a consultative process with the Government. It was the only national centre, a product of the merging of the SFTU and the SFL, which had been dissolved in accordance with their constitutions and the national laws, paving the way for the establishment of the new entity. The coming into being of TUCOSWA and the unification of the labour movement had been commended by the Government. However, the Government had deregistered TUCOSWA, allegedly because there was no provision in the IRA for the registration and merging of federations. This was despite the fact that sections 32 and 41 of the Act provided for the existence, regulation and merging of federations. Consequently, workers were not represented within the industrial sphere, in particular in the tripartite structures. Social dialogue was virtually dead in the country. This was a clear violation of Conventions Nos 87 and 98. As a result, tripartism and social dialogue were non-functional; all the federation’s activities had been banned. Furthermore, on 1 May 2012, the police had brutally confiscated all of the Federation’s belongings and arrested and harassed trade union leaders and their members. On 1 May 2013, the police had once again removed and confiscated the Federation’s belongings, brutally arrested and confined, detained and kept under house arrest the TUCOSWA leadership and raided its offices. The commemoration of TUCOSWA’s anniversary on 9 March 2013, had been brutally stopped by a battalion of military and police. The shop stewards meeting for the Federation had also been brutally stopped on 19 April 2013. In an attempt to legalize the unlawful act of deregistration of TUCOSWA, the Government had approached the Industrial Court for an order declaring that TUCOSWA was not a federation in terms of the IRA. The Court had ruled in total disregard of ILO standards and the spirit of section 4 of the IRA, as well as an earlier judgment of the Industrial Court of Appeal, which held that ILO Conventions were part of the labour laws of Swaziland. The Government’s misleading interpretation of the word “organization” in considering that it excluded “federations” was contrary to Article 10 of the Convention. Despite a directive of the Court ordering the parties to agree on a method of operation, the Government had refused to sign the memorandum of agreement which had been agreed to by the parties on 24 May 2013. It was the Union’s understanding that this agreement was the modus operandi as directed by the Court. However, acting in bad faith, the Government unilaterally produced a general notice. Ever since the Government had discovered the alleged lacuna in the Act in 2011, it had not taken any steps to remedy the defect. Notwithstanding the encouragement by the Court in February 2013 that the Government should facilitate the legislative process as a matter of urgency, it had failed to do so until 23 May 2013 when the purported amendments had been published in the Government Gazette. The mere publication did not mean that the amendment was before Parliament. As of now, there had been no prospects of the Bill, whether agreed by the parties or not, being passed into law, given that Parliament was probably bound to be dissolved by the end of June, giving way to national parliamentary elections. It was important to stress that the Bill had been unilaterally crafted by the Government and was not a product of consultation. As a result, the Bill contained provisions which were in conflict with the provisions of the Convention.

The King’s Proclamation was still part of the laws of Swaziland as it had not been expressly repealed by the King, as required by the same Proclamation. It could therefore not be argued that, by virtue of section 2 of the Constitution, the Proclamation had “died a natural death”. He recalled that the Proclamation violated the workers’ fundamental rights and civil liberties and that the ILO consultancy had recommended that the Government institute legal proceedings to obtain a definitive ruling from the country’s highest court as to the status of provisions of the Proclamation. The Government had so far ignored and rejected this recommendation. The Government had also ignored the recommendation to amend the 1963 Public Order Act so as to ensure that legitimate and peaceful trade union activities could take place without interference. Instead, the Government used the police and the army to prevent workers from engaging in legitimate and peaceful activities. Furthermore, all attempts to finalize the Code of Practice referred to by the Government had failed because it had refused to recognize the workers’ representatives in the tripartite structures. In view of the above, it was clear that the situation in Swaziland must be thoroughly investigated.

The Employer member of Swaziland referred to the situation faced by workers’ and employers’ federations in the country, which, though still difficult, had improved. She indicated that the IRA, while defining what a federation was, did not make provisions for their registration. As a consequence, the registration of TUCOSWA, which was the result of a merging of workers’ federations, was considered by the Industrial Court as null and void. This was confirmed by subsequent judicial decisions. According to the speaker, the rights of workers, which were guaranteed by the Constitution, could not be restricted to unions, while excluding federations. As a result, none of the following tripartite statutory boards and committees could function: the National Steering Committee on Social Dialogue, the Labour Advisory Board and the Conciliation, Mediation and Arbitration Commission. Several meetings had been carried out and a mission from the Southern Africa Trade Union Co-ordination Council (SATUCC) had taken place in order to overcome the impasse. Finally, the parties had agreed on a modus operandi and the Government had issued a general notice where it recognised the workers’ and employers’ federations to exist “in terms of their own Constitutions”. Furthermore, the Government issued the Industrial Relation (Amendment) Bill No. 14 of 2013, which provided for the registration of federations. However, as long as this Bill was not approved, the decision of the Court prevailed.

In respect of the May Day reported house arrests, the speaker indicated that following the Court decision, workers’ federations could not participate in the celebrations and that the leaders had been reportedly placed under house arrest. She considered that this was a devastating assault on freedom of association and assembly. Concerning the right to strike, the speaker recalled that the International Organisation of Employers (IOE) had indicated over the years that the right to strike was not mentioned in the Convention. With respect to the Public Service Bill, she indicated that it had been debated by the Labour Advisory Board, that the social partners had had the occasion to point out some provisions as unconstitutional and that ILO assistance was sought in this respect. The Correctional Services (Prison) Bill, which provided organizational rights to prison staff, was on the agenda of the Labour Advisory Board which had recently finalized the Employment Bill 2012. The Code of Good Practices on Managing Industrial and Protest Action was awaiting adoption by the National Steering Committee on Social Dialogue, after having been discussed with the social partners and the police service in order to define the role of the police in protests and industrial actions. Regarding the report requested to assist the Government in aligning its laws with ILO Conventions, which examined the 1973 Proclamation, the 1963 Public Order Act and the 2011 Suppression of Terrorism Act, the speaker indicated that it was tabled in a meeting of the National Steering Committee on Social Dialogue. She noted that the progress achieved justified that her country be removed from the special paragraph and that all technical assistance be provided to ensure that the respect of fundamental rights was balanced with economic growth.

The Worker member of the United Kingdom pointed out that in Swaziland, expressing support for TUCOSWA was proscribed and that being associated with, or mentioning this federation could be the basis for an arrest. She questioned the Government’s stated intention to bring the IRA, the 1973 Proclamation, the 1963 Public Order Act and other legislative acts into conformity with the Convention and refuted the Government’s suggestion that the social partners were somewhat responsible for the delay of consultations in this regard. The truth was very different: TUCOSWA had been registered for only two months in 2012 before it had announced a boycott of the election; the discussions referred to by the Government had been arranged for a time known to be impossible for the Federation to participate; the deregistration of the Federation in April 2012 had ended any chance of discussion with a view to changing the legislation. The Industrial Court had decided that the Government should change the law so as to allow TUCOSWA to operate. If the Government failed to do this immediately, it would show that the Government was still far from being ready to end its persecution and harassment of trade unionists and that further urgent action must be taken to guarantee fundamental trade union and human rights.

The Worker member of Norway, referring also to the trade unions of other Nordic countries, observed that the Committee of Experts had once again noted the continuation of a series of long-standing violations of the Convention in Swaziland, concerning which the Government had already appeared before the Committee on numerous occasions. The Government appeared to be engaged in a campaign against trade unions and had failed to register the new representative trade union, TUCOSWA, which it regarded as illegal, even though it had been entered in the tax register. Examples of the continued repression of activities by trade unions and civil society included the prevention by the police, without a court order, of a prayer session to commemorate the first anniversary of TUCOSWA. A peaceful demonstration and a march had recently been met with police violence, resulting in the shooting of several demonstrators. The 2013 May Day celebrations of TUCOSWA had also been repressed, with the trade union leaders being placed under house arrest. It was clear that systematic violations were continuing of the right to organize, to assembly and to peaceful protest, which were protected by the Convention and the 1998 ILO Declaration on Fundamental Principles and Rights at Work.

The Government member of the United States stated that her Government had been following the case closely for several years, particularly in the context of Swaziland’s continued eligibility for trade preferences under the African Growth and Opportunity Act. The long-standing case essentially comprised three themes: violation of civil liberties, interference in trade union affairs, and lack of effective social dialogue. While acknowledging that some steps had been taken, much still remained to be done to give effect to the recommendations of the ILO supervisory bodies which, together with the technical advice and assistance provided, offered a detailed outline for bringing national law and practice into compliance with the Convention. In that regard, she expressed concern at the continued interference in peaceful public gatherings, including the detention of trade union leaders during the 2013 May Day celebration. Moreover, many legislative texts and orders permitted the authorities to repress or penalize legitimate trade union activities, and there was a continued absence of legislation to recognize labour federations, as demonstrated by the deregistration of TUCOSWA in April 2012. She also noted the continued lack of a robust and institutionalized process for genuine and meaningful social dialogue. As the Government had frequently expressed its commitment to ensuring compliance with the Convention, her Government urged it to promote and protect freedom of association and of assembly, as outlined in ILO Conventions and the national Constitution. The Government should continue to work closely with the ILO to carry out all of the legislative reforms recommended by the Committee of Experts, and to implement those measures with a rigorous system of labour inspection, an administrative complaints process and an independent judiciary with enforcement authority. With reference to TUCOSWA, and noting the Government’s efforts to engage with the federation temporarily under a general notice, her Government urged it to expedite efforts to adopt legislation recognizing the right of labour federations to exist and operate fully under the Industrial Relations Act. Her Government hoped that it would very soon be possible to record concrete and sustainable progress towards full conformity with the letter and spirit of the Convention.

The Government member of Norway, also speaking on behalf of the Government members of Denmark, Finland, Iceland and Sweden, stated that, although action had been taken to give effect to the rights of freedom of expression, organization and association in the Constitution, the social partners had indicated that those rights were not effective in practice. There appeared to be a general lack of progress in giving effect to the constitutional provisions on those matters, despite the present case being examined by the Committee on numerous occasions. They therefore urged the Government to remove all obstacles to the enjoyment in practice of the rights set out in the Convention. The Government should also take action to comply with the request by the Committee of Experts that it take all necessary steps to proceed to the registration of TUCOSWA, including legislative measures if necessary. In that respect, they noted the proposal to amend the IRA and recalled that the Committee of Experts had highlighted several legislative problems, including those relating to the 1963 Public Order Act. They therefore urged the Government to ensure that all its legislation was in conformity with the Convention and to avail itself of ILO technical assistance for that purpose.

The Worker member of Nigeria emphasized that the systematic and consistent violations of the rights of workers, which had been examined by the Committee on numerous occasions, were growing worse than ever and had become entrenched in Government action, with administrative and security measures being used to trample upon fundamental and statutory rights. In particular, the Government and the security agencies had aggressively augmented their attacks against the workers, their organizations, leaders and activities. In March 2013, the workers in the country had been forcibly prevented from holding a thanksgiving prayer meeting to commemorate the first anniversary of TUCOSWA. Earlier, in February, the police had used force to prevent the holding of a prayer session by civil society organizations to address the deterioration in the national socio-economic situation. In so doing, the police had disregarded the national Constitution, which guaranteed the rights of association, assembly and religion. In April, civil society organizations had once again been prevented from holding a session to discuss the state of democracy and human rights in the country following 40 years of the state of emergency. The authorities did not hide their determination to clamp down on the right of workers to assemble freely and independently, and were treating TUCOSWA as an illegitimate organization, in contradiction with the latest judicial ruling on its registration. Examples of anti-trade union repression included the action taken against the May Day celebration, which had led to ten trade union leaders being placed under house arrest and the detention of workers wearing TUCOSWA T‑shirts. Wonder Mkhonza, Secretary-General of the Swaziland Processing, Refining and Allied Workers Union (SPRAWU), had recently been granted bail, after over 45 days in jail, as a result of a global campaign launched out of fear for his physical safety. It should be recalled that Sipho Jele, a trade union activist, had died in a police cell in 2010 in similar circumstances. It had also been recently reported by the media that the Prime Minister had instructed the heads of parastatal institutions not to recognize trade unions affiliated to TUCOSWA. The Committee should therefore take due note of the ceaseless attacks by the Government on democratic and civil liberties with a view to defending and protecting the abused and harassed workers.

The Government member of Zambia stated that her Government commended the Government on the progress made in redressing the core issues that had led to the stand-off between the Government and the social partners. Her Government encouraged the Government to take decisive steps, through a consultative process, to adapt the legal framework to allow for the registration of trade union federations. It should also following the principles of the promotion of tripartism, which would be vital for continued progress at the national level. Her Government commended the ILO for the technical and other support that had been provided to Swaziland. Her Government hoped that the Government would make further progress in putting in place the necessary measures to resolve the other outstanding issues and in ensuring the effective implementation of the legal measures that had been adopted.

The Worker member of Brazil expressed the solidarity and indignation of Brazilian workers. In practice, implementing a democracy was directly linked to the principle of freedom of association. In Swaziland, there was a climate of police violence and persecution against trade unionists and union leaders that was incompatible with both freedom of association and democracy. In Brazil, workers had experienced persecution, having lived through over 20 years of dictatorship. Possibly the best example of the parallel and interdependent growth of democracy and freedom of association in Brazil had been the election of a trade unionist as President. Today, the workers of Brazil were organizing events in 27 of the federal states against a Bill that would reduce rights through flexibility and increase outsourcing. He referred to his own country in order to provide an historical context to illustrate how violations of the rights enshrined in the Convention ended up creating barriers to the development of society by limiting and criminalizing social movements. The violations of the rights of workers in Swaziland were outrageous and it was imperative that the requisite measures were taken to address them.

The Government member of Zimbabwe stated that, having listened carefully to the information provided by all parties, his Government urged the Government and the social partners to continue their engagement in good faith with a view to dealing with the issues under discussion. The Office was also called on to continue providing support to the Government and the social partners. He added that, within the context of the Southern African Development Community (SADC) Employment and Labour Sector, issues of this nature were under discussion in relation not only to Swaziland, but also other countries in the subregion as they moved towards economic integration as part of the efforts made to improve compliance with international labour standards. The discussions, which included workers and employers, were focussed on the need to harmonize labour laws and practices entailed by the process of economic integration.

The Worker member of the United States indicated that Swaziland was part of the Southern African Customs Union and the Common Market for Eastern and Southern Africa, both of which had trade agreements with the United States. It was also eligible for preferential trade benefits under the United States African Growth and Opportunity Act, which established the requirement for the countries concerned not to engage in violations of internationally recognized human rights and to cooperate in international efforts to eliminate violations of those rights, which included the right of association and the right to organize and bargain collectively. It was clear that the Government was utterly failing to protect those rights, and indeed was working to deny them to its citizens. The primary exports from Swaziland to the United States were textiles and apparel. Yet, it was reported that many textile workers were not even paid the national minimum wage, which varied between US$57 and US$81 a month. In addition, the right to freedom of association and to organize, through which working conditions could be improved, were severely restricted and workers who attempted to exercise those rights were faced by a harsh legal environment and often by severe and violent repression. National law required police consent and a permit from the municipal council to hold meetings, marches or demonstrations in a public place, but the authorities routinely withheld their consent for such events. The law also required the registration of unions, but granted far-reaching powers to the Government to determine eligibility for registration, and the decisions taken were not subject to judicial scrutiny. Employers were granted discretion under the law on whether or not to recognize labour organizations where fewer than 50 per cent of employees were members of the organization, while workers in many occupations, including the police and security forces, fire-fighters, health workers and many parts of the civil service, were prohibited from forming unions. The severe and violent repression of trade unionists by the police and the Government sent a clear message that attempts to organize would be met with harsh resistance. The Government therefore needed to cooperate with the ILO and undertake serious reform measures to meet its obligations under the Convention.

The Government member of Morocco stated that the measures adopted by the Government fell into two categories: legislative and regulatory; and promotional, through social dialogue. Respect for freedom of association in practice presupposed tripartite collaboration, the promotion of a culture of social dialogue and negotiation. As the Government had expressed its willingness to respect freedom of association, the Office should support it in the practical implementation of the Convention, especially as the Government acknowledged that there were gaps and shortcomings in the legislation. In addition, as the Government had stated its willingness to amend the legislation, to revise the Industrial Relations Act and to opt for tripartism, it was important that it should be given time to overcome the difficulties identified.

The Worker member of South Africa observed that the contribution made by South African workers to defeating apartheid and the development of multi-party constitutional democracy was well documented. Their recent wretched experiences had taught them that in the absence of pluralism in a manifestly discriminatory regime, civil liberties could easily be undermined. The people, working families and the Government of South Africa had therefore resolved to be involved and to contribute to the struggle against oppression anywhere. In that connection, he recalled that South Africa accounted for over 80 per cent of Swaziland’s trade. South African workers totally rejected a situation in which trade benefits derived from the efforts of workers were used to repress the rights of other workers. And yet, with the persistence of intimidation, harassment and the oppression of trade union rights, the Government remained obstinate and unyielding to offers of assistance to help reform and improve its democratic and human rights processes. The assistance offered by the South African Parliament and of interaction with the National Economic Development and Labour Council (NEDLAC) had been rebuffed and the Swazi Government had never demonstrated any genuine commitment to reform its law and practice with a view to improving respect for civil liberties. The ILO’s efforts to develop arrangements to promote the decent work agenda in the country had been frustrated by the Government. The situation with regard to civil liberties in the country was dire and deteriorating. It was clear that the Government wished to wear out progressive forces and voices of reason so that it could continue with business as usual. He therefore urged the Committee to stand up to those repressive practices and to remain firm in the defence and protection of civil liberties and human dignity.

The Government member of Kenya affirmed his Government’s commitment to freedom of association and noted the progress made in Swaziland, particularly in terms of institutional and legislative change. However, his Government appreciated that there were still some milestones to be covered and that challenges lay ahead. The Government was urged to continue engaging in dialogue with the social partners with a view to further consolidating the foundations for continuous consultation, participation and engagement.

The Government member of South Sudan stated the efforts that were being made by the Government to promote the participation of the social partners, the public and the Labour Advisory Board and ensure their input into legislative amendments. However, her Government urged the Government to adhere to its commitment to ensure compliance with the Convention. As reported by the Worker members, there appeared to be restrictions on freedom of association in the country. It was important for the Government to allow workers the opportunity to organize and to encourage social dialogue. Her Government also called on Swazi workers to acknowledge the efforts that were being made by the Government to address all the challenges and to work as a team to achieve compliance with the Convention. The ILO was also encouraged to continue providing technical support to the Government.

The Government representative thanked all the speakers, and particularly those who had acknowledged the efforts made by the social partners and the Government. In response to the issues raised, he indicated that the question of house arrests and the invasion of trade union offices was still under investigation. He added that, although Wonder Mkhonza was a trade union member, he had been detained and arrested for matters unrelated to his trade union activities. Sipho Jele had never been a trade union member, and indeed had never worked. Moreover, the reports that the Prime Minister had ordered employers not to deal with TUCOSWA affiliates was merely a media creation. In fact, the Prime Minister had referred to unions that were not recognized by law. He stated, with regard to the general notice, that a letter had been received from the Secretary-General of the TUCOSWA that it would resume participation in all tripartite structures. The suspension of those structures had been lifted. It should also be noted that Swaziland was engaged in cooperation with South Africa and other countries, including with NEDLAC, which had been contacted by a tripartite delegation to see how the social dialogue system worked in South Africa. It should be noted that no trade union in Swaziland was proscribed. However, his Government recognized that there was a gap in the IRA, and that action to remedy this gap would have to be accelerated. It should be noted that the amendment proposed had been confirmed by the Industrial Court, which included representation of employers and workers. He stated that progress was being made on the issues under discussion. The Public Service Bill, which had lapsed, was again before the social partners. A Correctional Services Bill had also been prepared, and the Government would inform the Committee of the progress made in that regard. The amendments to the Suppression of Terrorism Act would also be communicated to the Office when they had been prepared. His Government should be given the opportunity to continue the efforts that were being made, without being placed in a special paragraph of the Committee’s report, A report would be provided to the Committee of Experts on the progress achieved, and the Government undertook to work with the country’s employers and workers. His Government hoped that it would be possible to comply fully with the Convention, which would be important in developing the national economy and providing employment for the workers.

The Worker members recalled that in 2011 the Committee had urged the Government to intensify its efforts to institutionalize social dialogue in the long term at the various levels of government and to ensure a climate of democracy in which fundamental human rights were fully guaranteed. A schedule for the discussion of the issues raised by the Committee of Experts should also be adopted as soon as possible in consultation with the social partners and with ILO technical assistance, as well as a roadmap for the effective implementation of a series of measures that had long been identified. They included amending the Public Order Act of 1963 so that legitimate and peaceful union activity could be carried out without interference; receiving ILO technical assistance for police training and the drafting of guidelines to ensure observance of the fundamental rights established in the Convention; amending the Suppression of Terrorism Act so that it could not be used to restrict trade union activities; and placing the Public Service Bill on the agenda of the Steering Committee on Social Dialogue to ensure tripartite discussion before it was adopted. No measures had been implemented since the previous examination. The Committee should therefore adopt very firm conclusions and propose that the Government accept a high-level tripartite fact-finding mission to assess the issue of non-compliance with the Convention with the support of government officials and ILO experts, accompanied by representatives from the Bureau for Workers’ Activities (ACTRAV) and the Bureau for Employers’ Activities (ACT/EMP). The Committee should also ensure that urgent measures were taken to guarantee the establishment of an independent judiciary, without which respect for human rights in general and for freedom of association in particular could not be guaranteed. The Worker members considered that the gravity of the case justified its inclusion in a special paragraph of the Committee’s report.

The Employer members acknowledged the promising developments made by the Government. However, much still remained to be done to achieve full compliance with the Convention. The information provided by the Government showed that there was now a basis for expediting the work towards achieving compliance with the Convention in law and practice with ILO assistance. Efforts should be concentrated on helping the Government to focus its attention on addressing the legislative and practical issues identified in a meaningful manner. ILO technical assistance would be essential for progress to be made and the Employer members therefore called on the Government to continue its cooperation with the Office. They also supported the suggestion that a fact-finding mission should visit the country, consisting of ILO officials and representatives of ACT/EMP and ACTRAV. The Employer members hoped that the Committee’s conclusions would reflect their longstanding views on the right to strike under the Convention. They hoped that the Government would continue to build on the small steps that had been taken up to now to achieve compliance with the Convention and that social dialogue would be improved as part of its efforts to give full effect to the Convention.

Conclusions

The Committee took note of the oral information provided by the Government and the discussion that ensued.

The Committee noted the grave issues in this case concerning this fundamental Convention refer, in particular, to the revocation of the registration of the voluntarily unified Trade Union Congress of Swaziland (TUCOSWA) in April 2012 and the determination that the legislation left a lacuna concerning the registration of any federation of workers or employers; and the impact of the various legislative texts, including the 1963 Public Order Act, on the exercise of freedom of association rights.

The Committee welcomed the information provided by the Government on the publication of the Industrial Relations (Amendment) Bill aimed at providing a legislative framework in which federations of trade unions and of employers could be registered, as well as the principles guiding tripartite labour relations between the Swaziland Government, Workers and Employers, to which the Government asserted all social partners had agreed and which would enable the effective functioning of the tripartite structures in the country pending the adoption of the Industrial Relations Amendment Bill. The Committee also noted the Government’s statement that all pending legislative issues would be attended to within the framework of the relevant tripartite institutions as a matter of urgency, including the recommendations made by the ILO consultancy in relation to the 1973 King’s Proclamation, the 1963 Public Order Act and the Suppression of Terrorism Act. Finally, the Committee noted that the Government reiterated its commitment to observe and implement Convention No. 87 in respect of federations of workers and employers. The Government undertakes to give full updates by the next session of the Committee of Experts in 2013.

The Committee did not address the right to strike in this case as the employers do not agree that there is a right to strike recognized in Convention No. 87.

The Committee strongly urged the Government to immediately take the necessary steps to ensure that the social partners’ views were duly taken into account in the finalization of the Industrial Relations Amendment Bill and that it would be adopted without delay. It is expected that this action will enable all the social partners in the country to be recognized and registered under the law, in full conformity with the Convention. In the meantime, it also expected that the tripartite structures in the country would effectively function with the full participation of TUCOSWA, the Federation of Swazi Employers and Chamber of Commerce, and the Federation of the Swazi Business Community and that the Government would guarantee that these organizations could exercise their rights under the Convention and the Industrial Relations Act of 2000. The Committee further urged the Government to ensure that immediate, significant and concrete progress shall be made within the framework of the social dialogue mechanisms in the country in relation to the other pending matters on which it has been commenting for many years. Recalling the importance that it attaches to the basic civil liberties of freedom of expression and assembly for all workers’ and employers’ organizations, the Committee urged the Government to ensure full respect for these fundamental human rights and to pursue vigorously the training of police forces to this end. The Committee expected that the Government will adopt, in consultation with the social partners, a code of conduct relating to the application of the Public Order Act. The Committee further recalled 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. The Committee called on the Government to accept a high-level ILO fact-finding mission to assess the tangible progress made on all of the abovementioned matters and requested that this information, as well as a detailed report from the Government, be transmitted to the Committee of Experts for examination at its next meeting this year.

The Worker members stated that the Government should immediately proceed to the registration of TUCOSWA and give full effect to all the rights that are recognized to it in the IRA.