Individual Case (CAS) - Discussion: 2016, Publication: 105th ILC session (2016)

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



A Government representative, the Minister of Labour and Social Security, emphasized the close collaboration her Government had had with the ILO and the social partners since its appearance before the Committee in 2015. She expressed appreciation for the support and technical assistance received from the ILO, in particular in relation to the preparation of regular reports to the ILO and the implementation of the recommendations made by the Conference Committee and the Committee of Experts. She stated that her Government had prioritized implementation of the recommendations, and that the progress report in this regard had been a standing agenda item at the monthly meetings of the National Steering Committee on Social Dialogue. These monthly meetings, together with at least 15 extraordinary meetings held by the National Steering Committee, had resulted in progress on the implementation of the recommendations. Firstly, with regards to the Conference Committee’s request to release unconditionally Mr Thulani Maseko and all other workers imprisoned for having exercised their rights to free speech and expression, she was pleased to report the release of Mr Thulani Maseko in June 2015 after his appeal, heard by the Supreme Court. Further, she categorically stated that there were no workers imprisoned for the abovementioned allegations. Seven cases communicated by the Worker members at the 2015 session of the Conference were investigated and the individuals concerned were found implicated in, charged with, or convicted of, serious criminal activities, including petrol bombing, attempted murder, murder and promoting acts of terrorism with no lawful connection to worker issues. The results of the investigations were contained in the regular Government report of last year and were discussed by a delegation to the ILO in Geneva, in September 2015, and once again with the ILO Pretoria Office, the Southern Africa Trade Union Co-ordination Council (SATUCC) and the International Trade Union Confederation (ITUC) delegation in Swaziland, in February 2016. Secondly, she confirmed that all workers’ and employers’ organizations in the country were fully assured of their freedom of association rights in relation to registration issues, in particular in respect of the registration process of the Amalgamated Trade Union of Swaziland (ATUSWA), without delay. She stated that ATUSWA, the Federation of Swaziland Trade Unions (FESWATU) and other trade unions had been registered. Issues of compliance with the law faced by ATUSWA had been resolved. Furthermore, she provided information regarding the activities of several tripartite structures that involved the full participation of the tripartite partners: the National Steering Committee on Social Dialogue had been held to discuss and review, inter alia, the Public Order Bill, the Suppression of Terrorism (Amendment) Bill, the Public Service Bill, the Correctional Services Bill, as well as the Code of Good Practice on Protest and Industrial Action; the Wages Councils had had several meetings to review terms and conditions of employment for employees in the various sectors of the economy; the Labour Advisory Board had held at least ten meetings and was working with a consultant from the ILO to finalize a new employment bill. The Board considered notices for protest action issued by the Trade Union Congress of Swaziland (TUCOSWA) in terms of section 40 of the Industrial Relations Act (IRA), which resulted in a peaceful demonstration in February 2016. Among the 27 tripartite structures, the following were mentioned: the Training and Localisation Committee; 18 wages councils; the Governing Body of the Conciliation, Mediation and Arbitration Commission (CMAC); the Board of the Swaziland National Provident Fund; the Workmen’s Compensation Medical Board; the Industrial and Vocational Training Board; Pneumoconiosis Medical Board; and the Essential Services Committee. In respect of the Conference Committee’s recommendation to amend section 32 of the Industrial Relations Act to eliminate the discretion of the Commissioner of Labour to register trade unions, she indicated that this matter was discussed in the National Steering Committee on Social Dialogue in February 2016, after a formal submission made by TUCOSWA in November 2015, as well as in May 2016, after which this submission had been referred to the Labour Advisory Board for its consideration. With regard to the recommendation to investigate arbitrary interference by the police in lawful, peaceful and legitimate activities of trade unions, the Government representative indicated that the Ministry of Labour and Social Security had held consultations with the police in this regard and established strong lines of communication to deal with issues as they were reported, aiming to avoid potential conflict. She further mentioned that, while organizations were given autonomy and independence when they participated in lawful, peaceful trade union activities, the police had a duty to maintain law and order, and protect human life and property. In this connection she underlined that the implementation of the Code of Good Practice and Industrial Action had improved the handling of these issues by the police and social partners. For example, a peaceful protest march held by TUCOSWA on 25 February 2016 and May Day Celebrations held by TUCOSWA and FESWATU all took place without incident. The cooperation between the police and social partners had significantly improved, and the Government had further requested technical assistance of the ILO to conduct workshops on the operational aspects of the Code, with an initial workshop to be conducted on 29–30 June 2016. Reiterating the importance of relationship building, on the one hand, and the duty of the police to maintain order and protect public safety, on the other, she pointed out that there had been a high incidence of acts of violence by unions against other workers, employers and police in 2014. This situation had improved in 2015 and 2016, with the exception of a case involving a threat made to the Commissioners of the Conciliation, Mediation and Arbitration Commission by a TUCOSWA affiliate during a strike ballot on 12 May 2016. With regard to the 1963 Public Order Act and the Suppression of Terrorism Act, she stated that the Public Order Bill had been drafted with ILO assistance and in consultation with social partners and other stakeholders. It was tabled before Parliament and was awaiting the conclusion of the legislative process. The Suppression of Terrorism Amendment Bill had been completed in consultation with social partners, addressing three main issues: amending the definition of a “terrorist act”; subjecting the Minister’s decision to determine a specified entity or terrorist organization to judicial review; and ensuring compliance with United Nations resolutions to combat global terrorism. The Bill was a product of consensus by the National Steering Committee on Social Dialogue and was submitted to Parliament. She informed the Committee that the Code of Good Practice was adopted and published as Legal Notice No. 164 of 2015. Furthermore, two bills had been tabled before Parliament: the Public Service Bill, reviewed by the National Steering Committee on Social Dialogue, referred to the Labour Advisory Board and approved by the Cabinet; and the Correctional Services Bill, reviewed by the Labour Advisory Board and approved by the Cabinet.

Finally, she indicated that her Government had accepted ILO technical assistance regarding the legislative reforms and implementation of the recommendations. At the initiative of the Government, a joint mission of the ILO, ITUC and SATUCC had visited the country in February 2016, which had allowed them to obtain information at first-hand on the ground. The Office had prepared a compliance report for four pending bills; the assessment was received on 24 of May 2016. She underlined that rushing the bills without the feedback from the ILO and other stakeholders would have been considered counter-productive, defeating the purpose of amending the legislation in the first place. The Government representative concluded her speech by expressing her appreciation to the ILO and the social partners who worked with the Government in an effective tripartite alliance to achieve the progress made. She also thanked the Africa group, the Southern African Development Community (SADC) – Employment and Labour Sector and Private Sector Forum – and SATUCC.

The Employer members recalled that this case had been discussed last year, and that the Conference Committee had then formulated several recommendations to the Government. They noted with satisfaction that the Government had acted upon the first recommendation by releasing Mr Thulani Maseko, TUCOSWA’s lawyer. They further noted the positive developments with regard to the registration of unions, and urged the Government to provide information on the steps taken to register ATUSWA, as requested by the Conference Committee in June 2015. They welcomed the concrete measures implemented by the Government in respect of the legislative issues previously raised, including the publication of the Public Service Bill in the Gazette, and the production, through social dialogue and with the assistance of the Office, of a draft bill of the Public Order Act. They noted the Government’s information on the steps taken to prevent arbitrary interference by the police, and to implement the Code of Good Practice for protests and industrial action, which had resulted in the improved handling of protests. The peaceful observance of May Day by trade unions this year, for instance, demonstrated an improved relationship between the police and workers’ groups. In concluding, they affirmed that the Government had made genuine efforts to improve the application of the Convention. Noting nevertheless that work remained to fully implement all of the recommendations, they encouraged the Government to continue in its efforts, and to continue engaging the social partners and seeking the assistance of the Office in doing so.

The Worker members stressed that this was the seventh consecutive time that this case was discussed in the Conference Committee. In total, the country had been examined 14 times with respect to the Convention, and had been placed in a special paragraph four times in recent years (2009, 2010, 2011 and 2015). The ILO had also conducted two high-level missions to the country in the previous six years, the last of which, in 2014, recorded that no progress had been achieved within the past decade. In spite of the technical assistance the ILO had provided for the reform of the repressive legal framework, within the framework of the Universal Periodic Review by the United Nations Human Rights Council concerning Swaziland in 2016, it had been submitted that no significant progress had been achieved in the area of freedom of association since 2011. They recalled that a technical report requested by the 2010 ILO high-level mission had criticized the fact that the police had applied the Suppression of Terrorism Act, in a manner that restricted peaceful and legitimate trade union activities. The definition of “terrorist act” was very broad and could include conduct that was non-violent or considered to be driven by an intent to incite fear. Article 2(1) of the Act defined a terrorist act as “an act or omission which constitutes an offence under this Act or within the scope of a counter terrorism convention.” Article 5(3)(b) of the Suppression of Terrorism Act provided that “any person who intentionally or without lawful excuse sends or communicates to another person or institution a false alarm or by any deed causes a false alarm or unwarranted panic” was guilty of an offence and upon conviction liable to serve a term in prison not exceeding three years or a fine imposed by a court. The Government had agreed to amend this Act in the discussion of this case in 2013, yet to date no amendments had been undertaken. Equally the Government had taken no action, for some 20 years, to amend the King’s Proclamation of 1973. The same applied to the Public Order Act, in respect of which the Committee of Experts had been requesting amendments since 1998. The Public Order Act entitled public authorities “to control public gatherings”, and to “give such orders as they may consider necessary or expedient”, which was found to have been used to repress lawful and peaceful trade union activities. They recalled that workers in Swaziland who engaged in peaceful, lawful and legitimate trade union activities were constantly subjected to police intimidation and violence, leading to severe injuries in some instances. The police justified their interference on grounds laid down in the Urban Act, under which unions were required to request a non-objection certificate from the police, two weeks prior to protests planned in urban areas where workplaces with union representation were located. Mr Mcolisi Ngcamphalala, member of the Swaziland National Association of Teachers (SNAT) and Mr Mbongwa Dlamini, Manzini Regional Chairperson of SNAT, were arrested in February 2016 and charged with obstruction for having participated in a protest action called by the public sector unions to demand the publication of a report on the public sector pay review. Their homes were also raided on 4 February 2016 by Swaziland’s serious crimes unit, also known as the Swazi anti-terrorism squad. They were then held in custody before being granted bail of SZL1,000 (US$60) each, pending trial. They deplored that, to date, no police officer had been subjected to disciplinary procedures for having intimidated workers or having used disproportionate violence. Mr Muzi Mhlanga (second deputy of the General Secretary of TUCOSWA and SNAT General Secretary) had filed a demand for compensation as a result of a police beating in February 2015, when he refused to hand over his phone to the police who had intervened in an internal trade union meeting. They stated that the wide discretion afforded to the Commissioner of Labour to register trade unions under section 32 of the Industrial Relations Act continued to constitute a hindrance for workers in applying the right to establish trade unions. In this regard they added that the Government had no reason to congratulate itself for the recent registration of TUCOSWA and ATUSWA, as these cases in fact demonstrated the arbitrary and inconsistent procedures of the registration of trade unions. When TUCOSWA was de-registered in April 2012, and denied registration for another three years, the Government had justified this decision before the Conference Committee on the ground of a “lacuna” existing in the Industrial Relations Act. However, Swazi members of Parliament who spoke before the European Parliament in September 2015 had stated that TUCOSWA had been de-registered for demanding multiparty elections, and for having links with the political party People’s United Democratic Movement (PUDEMO). In the case of ATUSWA’s application for registration, in September 2013, the Commissioner of Labour had placed numerous requirements which went beyond the statutory requirements and what was requested from other unions for their registration. For example, ATUSWA was required to delete the term “amalgamated” in the union’s name and to provide letters from the employers of the founding members of the trade union to prove their employment. While welcoming the registration of ATUSWA and TUCOSWA, they expressed concern at the lengthy registration procedures, which constituted a serious obstacle to the establishment of trade union organizations. Moreover, the contradictory statements by high-level officials made it clear that the Government abused the wide discretion afforded by the Industrial Relations Act by using arbitrary and unclear criteria for trade union registration. They observed that, in July 2015, both Mr Thulani Maseko, TUCOSWA’s lawyer, and Mr Bheki Makhubu were released, but only after having completed their entire sentences. Mr Mario Masuku, President of PUDEMO, and Mr Maxwell Dlamini, Secretary-General of the Swaziland Youth Congress, had been arrested and charged under the Suppression of Terrorism Act, after delivering a speech during the 2014 May Day celebrations organized by TUCOSWA. While they had been released on bail, they continued to face criminal charges and were maybe facing up to 15 years of hard labour. Both activists attended the TUCOSWA congress in 2016, yet were not permitted to address the workers due to their bail conditions. It was troubling therefore that these limitations remained on the exercise of free speech, which was a sine qua non for the right to freedom of association, and that heavy criminal charges continued to be employed to suppress debates during workers’ assemblies. They called for concrete legal changes to be urgently adopted so as to prevent future serious violations of freedom of association. It did not suffice to merely provide reassurances, as the Government had done, that bills had been tabled before Parliament.

The Employer member of Swaziland stressed that it was important to commend the social partners for the dedication they had demonstrated in working to improve the country’s compliance with the Convention. A new era, characterized by robust social dialogue and a shared commitment to producing tangible results, had emerged in the last 12 months. This was demonstrated by the fact that the Minister of Labour and Social Welfare had undertaken two missions, to the ILO in Geneva and to the ILO Regional Office for Africa, respectively, in order to gain a deeper understanding of the challenges. The Minister subsequently reported back to the social partners, thus enabling them to gain a better understanding of the actions the country needed to give priority to. The acceptance of the ILO tripartite high-level mission to the country in February 2016 represented further proof of the partners’ shared dedication to making progress on the application of the Convention. With regard to the Code of Good Practice on protests and industrial action, he noted that the Code was being successfully implemented, as several trade union events had been held in 2016 without interference from the authorities. Despite this progress, extensive awareness-raising activities remained necessary, for both security forces and workers’ groups to ensure a thorough shift in mindset and behaviour with respect to the holding of protests. In respect of the four pending bills, he emphasized the involvement of the social partners in the legislative process. In particular, public inputs to the revision of the Suppression of Terrorism Act were being made through the Parliamentary Portfolio Committee. He underlined in this regard the importance of the ILO input received by the social partners on 20 May 2016. Parliament would continue giving the Bill the priority and urgency it deserved, ultimately enabling compliance with the Convention. He recognized that sound and comprehensive amendments to the Suppression of Terrorism Act and the Public Order Act would enable potential consideration of Swaziland for re-admission to the African Growth and Opportunity Act (AGOA) benefits, driving job creation in the country. In this regard, he committed to continuing to actively participate in the tripartite forums and lobby Parliamentary Portfolio Committees towards finalizing and passing the bills concerned. Regarding the amendment of section 32 of the Industrial Relations Act to eliminate the discretion of the Commissioner of Labour to register trade unions, he indicated that this matter was pending before the National Steering Committee on Social Dialogue and the Labour Advisory Board for due deliberation. Furthermore, the employers had raised a point of principle on the issue of registering ATUSWA during the ILO high-level mission in February 2016. The registration of worker and employer entities should be based on a certain set of requirements in line with defined practice and principle. If requirements were met, entities should have been registered. He was convinced that the Government’s attitude had genuinely changed, as demonstrated by the abovementioned activities and the results achieved. The social partners were therefore encouraged to fully utilize all national social dialogue forums available to them to ensure that ILO procedures were availed of only as a last resort. Underscoring the employers’ desire for an environment conducive to job creation and economic growth, he emphasized that such an environment could only be realized by a high degree of collaboration among the social partners. In this respect he urged that the positive gains achieved so far with respect to social dialogue continue to be built upon, so that dialogue could be used as a means for not only addressing issues of compliance with international obligations but also serve as a platform for addressing such issues as working conditions, poverty eradication and job creation.

The Worker member of Swaziland recalled that this case had been discussed by the Committee on no less than 15 occasions, including the present one, which clearly attested to the seriousness and the persistence of the issues respecting freedom of association. On the issue of police harassment and brutality, he pointed out that although two events had indeed been organized by workers without police interference, this did not mean there had been no reported cases of interference by the police in workers’ activities in 2015. Several instances of police interference had, in fact, occurred, including the following: (1) in February 2016, a TUCOSWA march to deliver a petition to Parliament was blocked, pushed to a distance of 2 kilometres away from Parliament and eventually dispersed; (2) in February 2016, TUCOSWA was also prevented from staging a protest march, on grounds that the King was hunting wild game in this period; (3) in April 2016, the police twice invaded the offices of the Swaziland Union of Financial Institutions and Allied Workers (SUFIAWU) in an attempt to dissuade the latter from continuing with a planned strike, and also prevented SUFIAWU’s General Secretary from supporting a protected strike by the Swaziland Development Finance Corporation (FINCORP) employees; (4) in April 2016, the Commissioner of Police issued a statement that the police should treat trade unionists as a “shishi” (a type of animal considered as vermin) and kill them upon sight; and (5) in June 2016, a trade unionist, Gladys Dlamini, was badly injured by the police and almost lost an eye. In addition to these violations, two trade unionists – Mr Mario Masuku and Mr Maxwell Dlamini – were prevented from speaking at the 2016 May Day rally after having been arrested at the 2015 event. The Government continued to report, year in and year out, on various measures that fell short of actually implementing the changes requested by the Committee, such as tabling bills before Parliament. He urged the Government to ensure that the bills referred to by the Government, particularly those concerning the Public Order Act and the Suppression of Terrorism Act, be passed by July 2016, and that the entirety of the other recommendations issued by the Committee be implemented without further delay.

The Government member of Botswana, speaking on behalf of the member States of the Southern African Development Community (SADC), stated that the Government briefed the member States and social partners of the SADC at their tripartite meetings on 12 May and 1 June 2016 on progress made with regard to the implementation of the Convention. He noted with satisfaction the significant progress made by the Government in addressing the issues to comply with the Convention, and noted in particular, the tabling in Parliament of amendments that had been brought to the legislation. Numerous achievements were made in order to create a conducive environment for effective social dialogue, which was evidenced by the fact that tripartite social dialogue structures were operational. He also noted that the problems related to the registration of federations of trade unions had been resolved and ATUSWA, as well as FESWATU, had been registered. Recalling that there were outstanding issues that needed to be addressed, in particular the need for Parliament to pass various bills in an expeditious way, he expressed confidence in the Government’s commitment to address those rapidly. He stated that the SADC encouraged the sharing of lessons and experiences by member States, and regularly reviewed and monitored the implementation of regional instruments such as the SADC Protocol on Employment and Labour, 2014, and the SADC Decent Work Programme 2013–19, which prioritized compliance with international labour standards. He therefore encouraged and supported the efforts of the Government and social partners to address the outstanding issues to ensure full compliance with the Convention, and urged all stakeholders in Swaziland to work together in this regard. Finally, he commended the ILO for its technical support to the Government and social partners to address these issues.

The Government member of the Netherlands, speaking on behalf of member States of the European Union, indicated that Albania, Iceland, Norway, the member States of the European Economic Area, as well as the Republic of Moldova and Georgia aligned themselves to this statement. He emphasized that the promotion of the universal ratification and implementation of core labour standards, including this Convention, was part of the European Union Action Plan on Human Rights adopted in 2015, including the protection of human rights defenders including social partners. He recalled the commitment that had been made by the Government under the Cotonou Agreement – the framework for Swaziland’s cooperation with the European Union – to respect democracy, the rule of law and human rights principles, which included freedom of association. The European Parliament Resolution of 21 May 2015 (2015/2712(RSP)) had called on the Government to take concrete measures to respect and promote human rights in the country. In that respect, he emphasized that they had engaged in a constructive dialogue with the Government and non-state actors and were monitoring the progress achieved. Noting that this case had been discussed a number of times at the Committee, he was pleased to acknowledge a number of positive steps taken by the Government since June 2015. He welcomed the unconditional release, soon after the Committee’s discussion, of Mr Thulani Maseko, and welcomed the registration of the FESWATU in June 2015 and, recently, of the ATUSWA. He also acknowledged progress on legislative and administrative matters with ILO assistance, and strongly encouraged the Government to complete its legislative reform, including the amendment of the Suppression of Terrorism Act in consultation with social partners, in order to bring its legislation into compliance with international standards. He expressed the hope that all outstanding issues would be addressed promptly, so as to ensure full compliance with the Convention. He reiterated his readiness to cooperate with the Government and the people of Swaziland to promote development, including the full enjoyment of all human rights in the country.

The Worker member of Zimbabwe, speaking on behalf of the Southern African Trade Union Co-ordination Council (SATUCC), recalled that in 2015 the Committee had requested that its recommendations be implemented in full consultation and collaboration with the social partners. In spite of this, the Government had in fact continued to undermine TUCOSWA in its attempts to exercise its trade union rights. Social dialogue, moreover, continued to be conducted in an environment that in all respects remained hostile to trade unions. Such hostility was evident by statements made by the police, to the effect that trade unions were monsters that needed to be crushed, and the fact that the trade unionists, Mr Mario Masuku and Mr Maxwell Dlamini, had been arrested and subjected to grossly unfair conditions of bail. He stated that the delayed and difficult process TUCOSWA had experienced in getting itself registered attested to the Government’s lack of true commitment to social dialogue. Indeed, social dialogue at the national level was not consciously and genuinely cultivated. This lack of commitment was further demonstrated by the Government’s usual pre-Conference mounting of largely formal measures that were intended to convey the illusion of enacting real changes. He concluded by stressing the importance of ensuring social dialogue not only at the national level, but at all levels, including within enterprises. The national situation, in which employers and the Government created and promoted sweetheart unions, was detrimental to the growth of genuine, representative unions, and thus detrimental to the realization of genuine social dialogue.

The Employer member of Zimbabwe supported the statement made by the Employer spokesperson regarding the exhaustive examples of advancements demonstrated by Swaziland. He congratulated the Government on the progress made and acknowledged the need for additional efforts. The report submitted by the Government confirmed that the ILO missions were not being wane in terms of willingness of the counterparts to comply with the ratified ILO standards. The Government should be encouraged further to pass the pending Bills without further delay. The registration of trade unions should be based on the standardized procedures, in line with the Convention. In case the requirements were not to be met, the registration should not be possible. The Government should fully utilize social dialogue, and address to the ILO forum as the last resort.

The Worker member of the United States deplored the lack of progress in the present case. In keeping with its strategy of years past, the Government had once again taken only measures of a superficial nature, by proposing amendments to the laws with no intention of passing the said amendments, much less implementing them. These proposed amendments, furthermore, were still not in conformity with the Convention. Also of particular concern was the failure of the proposed amendments to comply with the requirements of the AGOA – specifically the eligibility benchmarks contained therein which required full guarantees of the exercise of freedom of association. This failure to enact the necessary legislation resulted in the continued denial, to Swaziland, of preferential access to the US market under the AGOA, to the detriment of the nation and particularly the nation’s workers. With regards to section 2 of the Suppression of Terrorism Act, she stated that while the Government’s proposal to include the words “by violent means” was a welcome one, further amendments were necessary to clarify the definition of terrorism; definitions of “lawful activities” and “lawful organizations” were also needed. She also noted with concern that the overly broad definition of a terrorist group could serve as a means of suppressing trade union activity. She underscored that dangerous ambiguities also existed in the Government’s proposed amendments to the Public Order Act. The ground on which meetings and gatherings could be prohibited were vague and overly broad, which was tantamount to giving the authorities virtually complete discretion to quash any union gathering. The penalties for violations of the Act, including even minor offences were overly harsh. For instance, failure to provide seven days’ notice for a public meeting was punishable by a fine and a one-year term of imprisonment. She concluded by urging the Government to immediately enact the amendments necessary for bringing the legislation into conformity with the Convention.

The Government member of South Africa fully endorsed the statement made on behalf of the SADC by the Government member of Botswana and highlighted the positive spirit of the social partners in the region, the SADC Private Sector Forum, and the enthusiasm and role played by the SATUCC and ITUC, which remained critical in the positive developments and notable progress in Swaziland. Acknowledging the challenges the country had faced with regard to compliance with the Convention, the speaker observed that in 2015, the authorities had faced their situation with renewed vigour and commitment, as evidenced by the amendment of the Industrial Relations Act to facilitate the registration of employers’ and workers’ federations. These registrations had led to the reconstitution of all tripartite social dialogue structures and had given a voice to the social partners. The speaker thanked the ILO for the technical assistance it had provided to Swaziland with regard to the legislative reform process, and in particular its support in the amendment of the Public Order Act. The assessment of the compliance of the amendments with the international labour standards was a crucial step in ensuring that the said amendments effectively addressed the shortfalls and gaps in the legislation. Following a recommendation of the ILO, ITUC and SATUCC during a February 2016 mission, the authorities had also submitted the Suppression of Terrorism Act to the social dialogue structures for review and discussion. In the framework of the SADC, the speaker supported and encouraged Swaziland to continue its collaborative efforts. This tripartite position was a testimony of the new spirit of cooperation in Swaziland in pursuit of decent work and respect for fundamental principles and rights at work. The Committee was urged to provide assistance to the country by letting it complete the legislative reform work it had begun without the onerous burden of being included in the special paragraph.

The Worker member of Senegal, speaking on behalf of the members of the Organization of Trade Unions of West Africa (OTUWA), expressed regret about the lack of progress made in this case. Since 2012, the Government had failed to report on the progress made concerning the final adoption of the Public Service Bill and its alignment with the provisions of the Convention relating to public service trade unionists. TUCOSWA was still waiting for Parliament to hold consultations with the general public and stakeholders, as was the usual procedure. Swaziland’s trade partners had expressed their concern regarding certain provisions of the Bill. He condemned the violation of the rights of public servants, as established in the labour legislation and the Constitution, in relation to freedom of association, a violation which contravened the ILO Conventions. TUCOSWA and its public service affiliates had written to several institutions, including Parliament, to request a hearing, but had been unsuccessful. Despite the fact that the Government was attempting to present regressive measures as signs of progress, particularly with respect to the procedure to adopt the Public Service Bill, the Committee should reaffirm its position regarding what genuinely constituted compliance with the provisions of the Convention.

An observer representing the International Transport Workers’ Federation (ITF), while welcoming the early release of Mr Thulani Maseko, indicated that this could not be seen as a real sign of progress: although Mr Maseko had been released unconditionally, he still faced sedition charges for a May Day speech he gave in 2009. Mr Mario Masuku, President of the pro-democracy PUDEMO and Mr Maxwell Dlamini of the Swaziland Youth Congress (SWAYOCO), were arrested during a May Day event in 2014. They were charged, under the Suppression of Terrorism Act, with singing a seditious song and pronouncing seditious statements. The State argued in Court that their statements were serious and threatened the leadership of Swaziland. They were denied bail on two occasions before the Supreme Court finally released them on bail on 14 July 2015. Not only did they suffer from very unfair treatment with regard to the bail conditions, but they were also completely barred from speaking in public. In 2013, leaders of the Swaziland Transport and Allied Workers’ Union were served with notice of prosecution under the Road Traffic Act of 2007 for holding a union gathering in a private car park. Three years later, the charges against them were still pending. In 2014, Mr Sfiso Mabuza, the Chairperson of a local branch of TUCOSWA, was arrested and detained for possession of PUDEMO documents. Despite being released after five days’ detention, he was subjected to unfair bail conditions. In general, trade union meetings were stopped when they included an item in the agenda concerning democracy. Respect of the civil liberties of trade unionists still remained a major problem in Swaziland. The Convention protected the civil liberties of trade unionists. The common understanding that freedom of association was wholly ineffective without the protection of trade unionists’ fundamental civil liberties was enshrined in a resolution of the International Labour Conference in 1970. In this regard, the Committee of Experts had commented that freedom of association was a principle with implications that went well beyond the mere framework of labour law. In the absence of a democratic system in which fundamental rights and civil liberties were respected, freedom of association could not be fully developed. The speaker indicated that the fundamental rights necessary for the exercise of freedom of association included the right to freedom and security of a person, to freedom from arbitrary arrest and detention, to freedom of opinion and expression and, in particular, to freedom to hold opinions without interference, as well as the right to a fair trial by an independent and impartial tribunal. The use of sedition, terrorism, and even road traffic laws to silence free speech struck at the heart of freedom of association. Swaziland would not be in compliance with the Convention until it could guarantee that trade union rights were exercised in normal conditions with respect for basic human rights and in a climate free of violence, pressure, fear and threats. In addition to the legislative amendments requested by the Committee of Experts, it was necessary to repeal the Sedition and Subversive Activities Act and replace it with legislation that was respectful of democratic rights. The Government was also encouraged to take on board the comprehensive comments of the International Commission of Jurists regarding judicial independence and impartiality.

The Government member of Namibia indicated that his Government aligned itself with the statement made by the Government member of Botswana on behalf of the SADC and welcomed the legislative reform and other ongoing initiatives and efforts made by the Government in this regard. He also considered that the release of Mr Thulani Maseko had demonstrated the independence of the country’s judicial system. The speaker applauded the Government for ensuring that May Day celebrations could take place without police interference and called upon the ILO to continue to provide technical assistance to ensure that once adopted, the bills debated in Parliament could be fully implemented by the Government.

The Worker member of the United Kingdom drew attention to the violent repression of trade union and human rights, including mistreatment and deaths in custody. Mr Thulani Maseko, who was released shortly after the 2015 discussion in the Committee, had suffered three weeks of solitary confinement during his imprisonment. The speaker referred to an attack by the police which had just taken place in Malkerns, against a group of workers who were waiting for a confirmation to proceed with a lawful strike. This resulted in workers being seriously injured. The Government’s aversion towards trade unions had been discussed several times in the past. The recent adverse statement against trade unions and collective bargaining in public services by the National Police Commissioner clearly indicated the hostile disposition of the Government towards trade unions and of late, its clandestine manoeuvres to cloud the industrial relations sphere with “sweetheart” trade unions in an effort to sideline genuine workers’ organizations. The Government had continued to act with disregard of rights under the Convention and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The speaker hoped that, with the continued scrutiny of the Committee of Experts and of the Conference Committee, reforms could be brought about for the people and workers of the country who had the right to live, free from repression, attacks and violence from those who should in fact be protecting them.

The Worker member of South Africa referred to active and consistent engagement with TUCOSWA. Swaziland had appeared before the Committee since 1996 in relation to this Convention and Convention No. 98, which were fundamental to the architecture of international labour standards and to the dignity of workers in general. As indicated by the SATUCC at its 28 March 2016 labour symposium in Botswana, it was a struggle for workers and their civil rights to freely organize, associate and bargain without fear and interference. There could be no separation between the rights of workers at the workplace and in their communities, including freely expressing themselves as part of civil society and as human beings. The speaker also noted the report of the Minister regarding the 2015 conclusions of the Committee in this case and aligned himself with TUCOSWA concerning the progress in this regard. However, progress within the legislative framework, aimed at changing the problematic conditions, still needed to be confirmed in practice. The environment of hostility against civil society and other social forces, which related directly or indirectly to workers’ rights, persisted and was characterized by the militarized political climate in the country. The relationship between labour and civil rights could not be subject to a false dichotomy, as they were interdependent and one directly shaped or affected the other. Within the SATUCC and the rest of the international progressive trade union movement, it was clear that the Convention concerned the rights of workers both as workers and as human beings. The speaker considered that the governments and employers of the SADC needed to honestly and consistently join the workers in their endeavour to free the region from workers’ rights’ violations. He assured that the workers and their sister unions would remain committed to defending workers’ rights and democracy.

The Government member of the United Republic of Tanzania noted that the Government had implemented most of the recommendations of the Committee on this case and welcomed its efforts to protect and promote labour rights. Noting with appreciation the Government’s cooperation with the ILO, including through a joint mission in 2016, she encouraged it to continue such cooperation in order to address all outstanding issues. The amendments to the Public Order Act and the Suppression of Terrorism Act had been drafted in consultation with the social partners and with the assistance of the ILO. The Government’s commitment to continue promoting the relationship between the police force and workers, in addressing matters of common concern, was commendable. The Government was encouraged to implement the pending recommendations, as well as to keep up the momentum generated on the protection of labour rights, with the support of the ILO.

The Government member of Zimbabwe indicated that his Government aligned itself with the statement made by the Government member of Botswana on behalf of the SADC member States. Tremendous progress had been made by the Government in addressing the concerns raised by the Committee of Experts. In this regard, the Government had worked with the social partners and was committed to continue this collaboration, in its efforts to address the challenges within the labour market. He commended the Government for the bold steps taken to revise the Public Order Act, the Suppression of Terrorism Act and the Public Service Act in order to bring them into conformity with the Convention, while ensuring tripartism. He urged the ILO to continue to provide technical assistance to address the concerns expressed by the Committee of Experts.

The Government member of Kenya welcomed the information provided by the Government and noted that all of the pending issues had been addressed in some way. There had been significant progress and commitment by the Government with regard to addressing and finalizing the outstanding issues, including the urgent submission to Parliament of the bills to amend the Public Order Act and the Suppression of Terrorism Act. A Code of Good Practice on protests, which was fully operational, had been completed through tripartite participation. The Public Service Bill and the Correctional Services Bill, which had been developed through technical cooperation, were before Parliament, and comments from the ILO had been received on 24 May 2016. The speaker called upon the ILO to continue supporting the country with regard to the consolidation of the progress made and to the continuous improvement of industrial relations in the country.

The Government representative reiterated that the progress made so far was based upon the recommendations made by the Committee in June 2015. This progress had not been achieved singlehandedly by the Government, but had been made with the employer and worker federations and other social partners. Above all, the amendments made to the legislation were a result of tripartite consultations and the agreement of other stakeholders. In addition to its assistance in the drafting of the legislation, the ILO had made comments on the bills, which would be taken into consideration. Once the bills had been adopted, they would represent the spirit and nature of a free and harmonious industrial relations environment. With regard to the issues raised by the social partners, she indicated that the country was moving forward with what it had been urged to do. Regarding the anti-union statements made by the National Commissioner of Police, she clarified that they were made in a private meeting and that the Commissioner had apologized to the nation. Concerning the violence by police against workers in Malkerns, she stated that the information was misguided and that the workers who were exercising their right to strike had been pushing those who wished to work to go on strike. In fact, previously the police had come to rescue the officials of the Conciliation, Mediation and Arbitration Commission who had been held hostage by workers. The official report on the incident was still pending. She thanked the ILO for its patience in addressing the issues raised before the Committee and assured that the remaining legislative issues which were pending before Parliament would be finalized in the near future. The Government was committed to fulfilling all of its obligations under the Convention. She thanked the Committee and the social partners, particularly the governments, who had noted the progress made in the country and assured them that it would continue to make progress, as had been demonstrated in the last six months.

The Worker members recalled that the persistent lack of progress had led the Committee to place Swaziland under a special paragraph in 2015. They regretted that the Government had not addressed the issues adequately and therefore had to once again bring up the same issues. The 2015 conclusions had called for the amendment of section 32 of the Industrial Relations Act in order to ensure that trade unions could be registered without previous authorization. However, this section remained unaltered, despite several letters petitioning the Ministry of Labour to discuss the compliance of the Industrial Relations Act with the Convention. Mr Thulani Maseko and Mr Bheki Makhubu, who were released only two weeks before completing their entire prison sentences, were not awarded any compensation for their arbitrary detention. Contrary to the conclusions of 2015, which called for the unconditional release of all workers imprisoned for the exercise of their trade union rights, Mr Mario Masuku and Mr Maxwell Dlamini were not released unconditionally and continued to be deprived of their right to free speech. In addition, the Government had arrested and charged two more workers. Depriving workers of their liberty for exercising their rights was not only a serious violation under the Convention but also had an intimidating impact on all workers. They reiterated their call for the Government to cease imposing criminal sanctions for legitimate and peaceful trade union activities. It was extremely disappointing that not a single police officer had been held accountable for their arbitrary interference in lawful, peaceful and legitimate trade union activities. Hence, the police interference in trade union activities continued unabated. Although the ILO had provided technical assistance six months ago to bring the Suppression of Terrorism Act and the Public Order Act in line with the Convention, the Government had not yet finalized this legislation. The Correctional Services Bill had not yet been passed and would not, in any case, allow prison staff to establish and join independent trade unions. They would instead be allowed to join staff associations consisting of managers and workers. Workers would be able to benefit from the rights enshrined in the Convention only if it was effectively applied in practice. In order to fulfil the promises made before the Committee and to bring about genuine changes, the Government should stop treating trade unionists as criminals and engage in dialogue with them to bring the country on a path to real reform. The speaker called on the Government to accept technical assistance from the ILO and a direct contacts mission in order to meet all its promises, before the next session of the Conference.

The Employer members recalled that the conclusions of the Committee on this case in 2015 included nine points and were included in a special paragraph of the report. Since then, concrete steps had been taken by the Government to comply with these recommendations. In this regard, the employer members welcomed: (1) the release of Mr Maseko; (2) the progress achieved with respect to freedom of association of employers’ and workers’ organizations, especially with regard to the registration of FESWATU and ATUSWA; (3) the progress made regarding the participation of social partners in a number of tripartite committees; and (4) the steps taken towards building more positive relationships between the police and the social partners, specifically in respect to peaceful protests. With regard to the legislative measures, while noting the steps taken by the Government, they encouraged it to continue its progress, in consultation with the social partners and with the technical assistance of the ILO. The discussion on whether such a legislative process could lead to concrete results was a good opportunity to remind the Government to continue to build upon the progress made in order to ensure real and meaningful results in relation to the legislative review, thus ensuring compliance with national legislation and the Convention. While noting the constructive spirit of the Government, this case had been a long-standing concern of both this Committee and the Committee of Experts. Therefore the Government was encouraged to step up its efforts, which would be carefully monitored.

Conclusions

The Committee took note of the information provided by the Government representative and the discussion that followed on issues raised by the Committee of Experts.

The Committee noted with interest the recent registration of workers’ and employers’ organizations and the Government`s statement that these organizations are now represented in all tripartite structures. The Committee nevertheless expressed concern that legislative matters which have been the subject of previous discussion before this Committee have still not yet been addressed.

Taking into account the discussion of the case, the Committee requested the Government to:

• ■ continue to hold meaningful consultations with social partners in order to bring the Suppression of Terrorism Act and the Public Order Act in line with Convention No. 87;
• ■ continue to conduct investigations into interference and intimidation of trade unionists during legitimate and peaceful trade union activities and hold those responsible for violations accountable;
• ■ amend the Correctional Services (Prison) Bill to ensure that prison staff have the right to establish and join independent trade unions, in consultation with the social partners;
• ■ ensure that freedom of association can be exercised in a climate free of intimidation and without violence against workers, trade unions or employers and act accordingly.
• ■ amend section 32 of the Industrial Relations Act to eliminate the discretion of the Commissioner of Labour to register trade unions.

The Committee urged the Government to complete the legislative processes without further delay. The Government is encouraged to avail itself of ILO technical assistance in this regard, as well as to accept a direct contacts mission to the country in order to assess the progress made before the next International Labour Conference.

The Government representative thanked the Committee for the conclusions and assured the Committee that the Government would continue work with the social partners and would attend to the remaining commitments.