Individual Case (CAS) - Discussion: 2008, Publication: 97th ILC session (2008)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Zimbabwe (Ratification: 2003)

The Chairperson of the Committee invited the Government representatives to participate in the discussion. In addition, to confirm the absence of the delegation of Zimbabwe, which had been duly accredited and registered before the Conference, she referred to the working methods of the Committee. The refusal of a government to participate in the work of the Committee represented a considerable obstacle to the achievement of the main objectives of the International Labour Organization. For this reason, the Committee could discuss the substance of those cases regarding governments registered and present at the Conference who decided not to appear before the Committee. The discussion regarding such cases would be reflected in the appropriate part of the report, concerning both individual cases and the participation in the work of the Committee.

The Worker members indicated that the Government of Zimbabwe had embarked in a systematic and malicious spate of activities in violation of the Convention, including arrests, detentions, brutality and harassment of trade union leaders, activists and human rights defenders. Under the same government administration, Zimbabwe had once been a democracy and a food basket for the southern African region, with a strong currency, but had since allowed itself to degenerate into a despotic State that had let its economy run into the abyss through bad governance.

The Government's flagrant disregard for the Zimbabwean people manifested itself by discretionary denial of civil liberties through the constant use of the Criminal Law (Codification and Reform) Act of 2006 and the Public Order and Security Act (POSA) to regulate trade union activities. The Worker members reported that, regrettably, Mr Wellington Chibebe had been arrested for the second time, together with Mr Lovemore Matombo, the President of the Zimbabwe Congress of Trade Unions (ZCTU). They had been incarcerated in remand centres for 12 days and were currently out on bail. A request of the subregional ILO representative to visit them had been rejected. Both ZCTU members and ordinary workers had become victims of torture, arrests, victimization and displacement. In the rural areas, many teachers had been victimized and brutally beaten in front of their pupils; 67 teachers had to be hospitalized, and Mr Raymond Mazongwe had been arrested and later released.

The Government should be reminded of the Resolution concerning trade union rights, adopted by the Conference in 1970, which pointed out that the absence of civil liberties such as those enunciated in the Universal Declaration of Human Rights removed all meaning from the concept of trade union rights. Similarly, the Committee on Freedom of Association had stated that the rights of workers' and employers' organizations could only be exercised in a climate free from violence, pressure or threats against the leaders and members of the organizations, and that it was for governments to ensure that this principle was respected.

The Government of Zimbabwe had deliberately boycotted this Committee and perennially undermined its advice concerning trade union rights and civil liberties. The Worker members therefore called upon the Committee to strongly urge the Government to stop using the POSA in trade union affairs; to repeal the Criminal Law that criminalized trade union activities; to stop demanding prior authorization of trade union activities; to discontinue violence, harassment, detentions and brutality against both trade unionists and ordinary citizens; to withdraw all cases against trade union leaders; to compensate all victims of torture; allow displaced citizens to return peacefully to their homes; to resuscitate social dialogue and to apply the Convention in law and in practice. Finally, the Worker members wished to call for an ILO mission to the country and urged the Committee to include the conclusions in a special paragraph.

The Employer members stated that the Government of Zimbabwe continued to enact legislation that paralysed freedom of association, in particular the POSA, and to initiate criminal proceedings against trade union leaders participating in public demonstrations. The Government had also refused a high-level technical assistance mission of the ILO. However, by ratifying the Convention, the Government of Zimbabwe undertook international obligations to bring its law and practice into line with the Convention. This included the protection of civil liberties.

Regrettably, this was the second year that the Government had not appeared before the Committee, although it had participated in the discussions of the Committee this year. In accordance with the Committee's working methods, as revised at the present session, the discussion of this individual case would therefore be included in Part II of the Committee's report, and should also be mentioned in a special paragraph for continued failure to apply the Convention.

This case involved flagrant violations of the most basic elements of freedom of association. There was evidence of assaults, arrests, torture and police violence against trade union leaders. There was an absence of civil liberties, including freedom of speech, movement, association, assembly, as well as freedom and security of persons. This case was about a country that rejected human rights, including the most fundamental cornerstone of the ILO, freedom of association.

The Employer member of South Africa stated that the events in Zimbabwe were a tragedy. The atrocities and human suffering were beyond description. Workers were being denied rights and were persecuted for standing up for justice. The situation also affected employers. The Government's refusal to appear before the Committee was evidence for its disrespect for the ILO and its fundamental principles. Given the continuing violation of the Convention by the Government, it was time for introspection not only for Zimbabweans, but also for African and international leaders to use all appropriate means to avert further human suffering. Millions of workers had left the country and families were being split.

The Worker member of Zimbabwe stated that Convention No. 87, one of the pillars by which democracy was measured and tested, was under threat due to the Government's refusal to abide by the previous conclusions of the Conference Committee. The issue before the Committee was whether Zimbabwe had improved with respect to its observance and application of the Convention since the Committee's discussion in 2007. This was unfortunately not the case.

In 2007, the Committee had discussed the need for labour law reform to allow public servants to be part of mainstream unions, with the authority to negotiate their conditions of service by way of a National Employment Council. He noted with grave concern the Government's dithering on this distortion in the country's industrial relations which had been criticized by the Committee of Experts. Surprisingly, after the 2002 harmonization of the Public Service Act (PSA) with the Labour Act, the Government had reverted to the PSA in 2005 without consultation with relevant industrial relations stakeholders. Furthermore, prison service staff and the police were still not allowed to form trade unions.

The Worker member also recalled that the Labour Act was not in compliance with even the minimum international labour standards. Chapter 28:01, section 2A, merely referred to international labour standards, and the courts refused to apply them because the relevant Conventions had not been incorporated into domestic law. This was the essence of the problem faced by trade unions in their everyday struggle to protect their members.

The Zimbabwe Congress of Trade Unions (ZCTU) had suffered its fair share of brutality from the Government. The Government refused to learn from its previous acts and omissions. On 13 September 2006, a number of workers, among them ZCTU leaders, who had gathered to raise the authorities' awareness of the unbearable poverty levels and the need for access to anti-retroviral drugs, had met with the worst kind of police brutality. The torture they had gone through merely for expressing themselves was beyond any description. Arrests and detentions remained the norm.

After May Day commemorations organized by the ZCTU, on 8 May 2008, police had visited the homes of its leaders, including the speaker himself, and arrested them. They had been charged with "communicating falsehoods which where prejudicial to the State" and later released on bail, on condition that they made no political statements. However, it was impossible to know what exactly was considered political or non-political when dealing with issues in the workplace and at national level. ZCTU members had also suffered violence in the context of the 2008 elections, with civil servants and teachers having been targeted the most because they were thought to be opinion-makers in their communities. Yet, the ILO supervisory bodies had requested the Government to respect the right of workers to operate in a free and democratic environment.

Although the POSA was rarely being used at present, its place had been taken by the Criminal Law (Codification and Reform) Act of 2006. The Worker member stated that this Act had been used to infringe the right of the ZCTU and its affiliates to express their views on the Government's economic and social policy. He himself was due to stand trial under the Act on 23 June 2008.

The Government member of Slovenia spoke on behalf of the Governments of Member States of the European Union, and the candidate countries of Turkey, Croatia and The former Yugoslav Republic of Macedonia, the countries of the Stabilization and Association Process and the potential candidates Albania, Bosnia and Herzegovina, Montenegro, the EFTA countries Norway and Switzerland, as well as Ukraine, the Republic of Moldova and Armenia.

He deeply regretted that the Government of Zimbabwe once again refused to participate in the discussion of the Committee and urged the Government to resume its dialogue with the ILO immediately and to accept a highlevel technical assistance mission of the ILO under the terms requested by the Committee in 2006. The deterioration of the situation relating to trade unions rights in Zimbabwe remained alarming. He shared the continuous concerns of the Committee of Experts with respect to the POSA. The Government should take all necessary measures to ensure that the POSA was no longer used to infringe the rights of workers and their organizations.

He further noted with great concern acts of anti-union discrimination and interference under the Criminal Law related to political activities of trade union members and agreed with the relevant findings of the Committee on Freedom of Association. The Government should drop all charges connected to trade union activities and abstain from measures of arrest and detention of trade union leaders or members for reasons connected with such activities. The Government was requested to provide full and detailed information with respect to the cases of Mr Matombo and Mr Chibebe.

He further stressed the interdependence between civil liberties and trade union rights. A truly free and independent trade union movement could only develop in a climate of respect for fundamental human rights. The Zimbabwean people had the right to enjoy freedom of expression without harassment, intimidation or violence and to live under the protection of the rule of law. He therefore urged the Government to restore full respect for the rule of law and take immediate steps to end the continuing human rights violations.

The Worker member of Botswana declared that the acts of violence in Zimbabwe were also targeting teachers, students and education communities. The Zimbabwe Teachers Association (ZIMTA) and the Progressive Teachers' Union of Zimbabwe (PTUZ) witnessed many acts of violence such as killings, torture and other forms of abuses against teachers in rural areas. In the context of the national elections of 2008, teachers had been accused of influencing the vote as role models of their communities. In some areas, teachers had been told to vacate their schools or to relocate, while others had been threatened. Most violence had allegedly been perpetrated by war veterans and the youth militia. Some teachers had been arrested or abducted by the Central Intelligence Organization operatives. Furthermore, thousands of teachers had been prevented from voting in the first round because they had deliberately been deployed outside their voting wards as polling officers. This was a violation of the constitutional right of teachers to elect their political leaders.

The PTUZ had reported that at least 250 schools in 23 districts throughout the country had been affected by some forms of violence in the period between 3 and 9 May 2008. In some instances, teachers had been beaten in front of pupils and community members. Sixty-seven teachers had been hospitalized in Harare, Kotwa, Karoi, Rusape, Bonda, Howard, Guruve, Marondera and else- where; 139 teachers had to flee their schools and 213 teachers' houses had been looted. Many teachers had fled to neighbouring countries and were unlikely to return, worsening the brain drain in the education sector.

On 15 May 2008, Mr Raymond Majongwe, the General Secretary of the PTUZ, had again been briefly arrested by the police at the High Court of Zimbabwe where he had been attending a hearing of trade union leaders. His arrest had occurred following advertisements posted by the PTUZ deploring the fact that teachers were being beaten and harassed at their workplaces. Mr Raymond Majongwe had regularly been harassed and detained for voicing demands aimed at improving the crippled education system in Zimbabwe. On 6 October 2007, the police had intervened brutally to disperse a World Teachers' Day celebra- tion, arrested Mr Majongwe and interrogated him for hours. Earlier, his passport had been seized to prevent him from leaving the country to attend an international trade union meeting. The acts of violence committed by the Government against teachers and trade unionists were to be condemned. The Zimbabwean authorities were urged to respect all human rights and trade union rights. Public Service International, Education International and the ILO should send special missions to Zimbabwe.

The Government member of the United States stated that her Government noted with profound regret that the Committee was discussing this extremely serious case without the participation of the Government of Zimbabwe. Her Government was deeply disturbed by the pervasive and systematic abuse of worker and human rights in Zimbabwe. The Government of Zimbabwe's unequivocal record regarding trade union rights, confirmed by both the Committee of Experts and the Committee on Freedom of Association, included obstruction, harassment, imprisonment, and reprisals, constituting massive, flagrant and defiant violations of Convention No. 87, freely ratified by Zimbabwe. Recent events demonstrated that respect for the rule of law in Zimbabwe continued to deteriorate.

Despite the fact that the offer of ILO assistance did not constitute a sanction but help which might have positive effects, the Government regrettably and persistently refused to accept an ILO high-level mission to deal with the ongoing violations of Convention No. 87. Regardless of whether it accepted a high-level mission, the Government of Zimbabwe had an immutable international obligation to implement the provisions of Convention No. 87 both in law and practice, and to report to the ILO on its actions in this regard. She hoped that the Government would reconsider its attitude towards the ILO supervisory system, but stressed that as a minimum it must urgently take the necessary steps to grant all citizens their fundamental worker and human rights.

The Worker member of the United Kingdom stated that on 13 September 2006, the ZCTU had planned a demonstration to protest against the high cost of living and high taxation and to demand anti-retroviral drugs for HIV sufferers. The notification under the POSA had been given to the police, which authorized the demonstration. Soon af- ter the demonstration had begun, the leaders of the ZCTU and affiliated unions had been rounded up by the police and ordered to sit on the road. ZCTU leaders, including President Matombo, General Secretary Chibebe and Vice-President Lucia Matibenga had been taken to the Matapi police station. After having been subjected to severe and prolonged physical violence by police officers, they had been charged on the spot under the POSA with planning an illegal demonstration intended to overthrow a constitutionally elected Government.

The ZCTU leaders had suffered numerous injuries, including broken bones and lacerations during this incident, but had been denied medical assistance and access to lawyers for two days. On 15 September, they had been taken to a hospital. Nevertheless, only Mr Wellington Chibebe received treatment and only after the intervention of the ZCTU lawyers and a member of the non-governmental organization Doctors for Human Rights (DHR). Despite having suffered several serious injuries, he had only been operated on four days later and had been tried in secret on the hospital premises. The other colleagues, including Lucia Matibenga, Denis Chiwara, James Gumbi and George Nkiwane, had been returned to the police cells, without any treatment. They had been sent to court the next day and were granted bail. The court ruled that the beatings in the cells had to be investigated and the perpetrators brought to justice. However, since the police had been responsible for the investigation, almost two years after these horrific events, no charges had been brought against the officers who had committed the torture, nor the senior officers who had ordered it.

The Worker member of the United States stated that the case was a testimony of the ZCTU fight against labour injustice and state tyranny. The Government had repressed a peaceful mass demonstration by ZCTU in September 2006. The atrocious detention, beatings and injuries inflicted on ZCTU leaders and members at the time were widely known. The President of Zimbabwe seemed to have thought that the truth could be covered up by refusing entry into Zimbabwe of a delegation of the Coalition of Black Trade Unionists, a constituency organization of the American Federation of Labor - Congress of Industrial Organizations (AFL-CIO). The AFL-CIO had already started distributing information on the repression of the ZCTU's demonstration.

The Government could not hide the truth when it came to de jure violations of the Convention. For example, the 2005 Labour Amendment Act denied public service em- ployees the right to form and join trade unions, collectively bargain or strike. Authentic labour organizations were undermined by the legal recognition of so-called workers' committees. Moreover, the law impeded the right to strike by imposing a 50 per cent voting requirement, compulsory conciliation periods, compulsory two-week advance notice and unilateral referrals to compulsory arbitration. Employers had a legal right to permanently replace strikers, and individual strikers were liable for economic damages. The Government's definition of essential services was not in line with ILO jurisprudence, and illegal strikes could result in five years imprisonment upon conviction. Given these flagrant violations of the Convention, the Committee was urged to mention this case in a special paragraph of its report.

The Worker member of South Africa provided examples of the severe violations of trade union rights and harassment of trade union leaders in Zimbabwe. On 28 February 2008, the General Secretary of the ZCTU had applied for authorization to hold a Women's Day commemoration meeting on 8 March. The Government had not authorized the meeting and the ZCTU therefore had taken the matter to the court, which ruled in favour of the union. For May Day this year, the ZCTU had applied for 34 venues, out of which five had been denied. The reasons for the refusal had not been given immediately in some cases, while in others the refusal had been notified on the day of the event. The ZCTU had had to cancel the com- memoration events despite the fact that some workers had already gathered and that costs had already been incurred for the events.

The harassment and victimization of ZCTU leaders had further escalated on 6 May, when the police had gone to the houses of the ZCTU's General Secretary and President. The two leaders had been arrested, interrogated for more than six hours and charged with incitement to rise against the Government and with falsehoods because they had told workers that people were being killed during the current political violence. Bail had initially been refused on the ground that the two leaders were dangerous. It had later been granted, but under the unacceptable condition that they should not speak at any political gatherings. Their cases would be heard on 23 June 2008, and they were liable to a fine of level 14, imprisonment for a period of 20 years or both. Violence was the order of the day in Zimbabwe. Parents were being beaten in front of their children. People were fleeing to neighbouring countries. She expressed distress at the way the Zimbabwean authorities were treating trade unionists and requested that the charges against the two ZCTU leaders be dropped.

The Government member of Cuba stated that her interventions had always aimed at encouraging the governments to fulfil their obligations regarding both the submission of reports and the cooperation with the ILO supervisory bodies. In this case, the situation was not clear and the reason for the absence of the Government unknown. Consequently, increased efforts should be made to establish contacts with the Government of Zimbabwe. The defiance shown by the Government could be the effect of its dissatisfaction over the results achieved by the Committee. Her delegation did not support any decision regarding the application of measures or sanctions against any government before having exhausted the contacts and technical assistance required.

The Government member of Canada also speaking on behalf of the Government members of Australia and New Zealand, expressed profound concern about serious violations of freedom of association in Zimbabwe, which was essential to the existence of democratic society. He shared the view of the Committee that a truly free and independent trade union movement could only develop in a climate of respect for fundamental human rights. Failure to establish such a climate was among the root causes of the crisis in governance in Zimbabwe.

Following the general elections on 29 March 2008, trade union leaders, including the President of the ZCTU and its Secretary-General, Mr Lovemore Matombo and Mr Wellington Chibebe, and the Secretary-General of the Progressive Teachers' Union, Mr Raymond Majongwe, had been subjected to harassment and arrest. In Zimbabwe, trade unionists suffered serious infringements of their rights. They were subjected to politically motivated violence, killing, intimidation and harassment. In order to overcome the current political and economic crisis, the Government must ensure that social and political actors were given the space to defend workers' rights so that they could play a constructive role in resolving the crisis.

The POSA, despite amendments made, had been used to infringe the rights of workers' organizations. The Government was urged to ensure that trade unions were allowed to carry out their activities and exercise their rights guaranteed under the Convention, to restore full respect for the rule of law and to end human rights violations. Canada, Australia and New Zealand supported the work of the Committee of Experts, especially its effort to solicit further information and its suggestion that Zimbabwe receive a high-level technical assistance mission.

The Worker members pointed out that, while the Government of Zimbabwe advocated impunity, the workers called for dialogue; while the Government propagated violence, the workers called for peace; while the Government advocated injustice, the workers called for justice; and while the Government perpetuated brute force, the workers advocated the force of truth. Evidence of violence after the 2008 general elections was available on the Internet.

The Government of Cuba had supported sanctions against Apartheid in South Africa, but its position concerning Zimbabwe now seemed to be considered hypocritical. The Government of Zimbabwe was now taking people's identification documents away so that they could not obtain food rations or vote. It had also decided to prohibit non-governmental organizations from supplying food. Such desperate and inhuman measures must be discouraged.

The Worker members suggested that the Conference Committee take certain measures. First, the Committee should consider sending a tripartite high-level mission, composed of members of the Governing Body, to conduct inquiries and to assist the Government in finding solutions to the current problems. Second, the Committee should ask all Governments which had a diplomatic presence in Zimbabwe to observe the trial of Mr Chibebe and Mr Matombo, due to start on 23 June 2008. Their presence would serve as the eyes and ears of those who could not be there. The Worker members also called on the Government of Zimbabwe to take various measures. Social dialogue must be restored. The Criminal Law (Codification and Reform) Act must be repealed. All charges against trade unionists must be withdrawn. It must be ensured that the POSA would not be used against trade unions. No victimization, harassment, detentions or arrests against trade unionists or citizens should take place. Victims of torture must be compensated. Those who had been displaced from their homes must be given other accommodation.

The Employer members endorsed the statement by the Worker members and their recommendations. This discussion marked a shameful day for Zimbabwe. The Government had lost its legitimacy and moral authority. It could have and should have accepted an ILO high-level mission, taken ILO advice on how to implement Convention No. 87, provided freedom of speech, guaranteed political freedom, ensured security, provided for a right of assembly, realized the right of association and protected basic civil liberties, but it would not have. The Employer members recalled that the most serious cases could be subject to a complaint under article 26 of the ILO Constitution. The Employer members urged the 147 other Members of the ILO which had ratified Convention No. 87 to join such a complaint against Zimbabwe and the Governing Body to approve a commission of inquiry provided for under this procedure.

The Government member of Cuba specified that the attitude of her Government with regard to apartheid could by no means be considered hypocritical. She recalled that the fight against apartheid, far from having been limited to mere statements, involved the sacrifice of many Cuban people. She reiterated that her Government would not support any decision regarding the application of measures or sanctions against any government before the contacts and technical assistance required had been exhausted.

The Worker members highlighted the exceptional statement of the Employer members on this case and expressed their thanks in this regard.

Conclusions

The Committee deeply deplored the persistent obstructionist attitude demonstrated by the Government through its refusal to come before it in two consecutive years and thus seriously hamper the work of the ILO supervisory mechanisms to review the application of voluntarily ratified Conventions. The Committee recalled that the contempt shown by the Government to this Committee and the gravity of the violations observed had led this Committee to decide last year to mention this case in a special paragraph of its report and to call upon the Government to accept a high-level technical assistance mission.

The Committee further deplored the Government's refusal of the high-level technical assistance mission that the Committee had invited it to accept. The Committee observed with profound regret that the comments of the Committee of Experts referred to serious allegations of the violation of basic civil liberties, including the quasi-systematic arrest and detention of trade unionists following their participation in public demonstrations. In this regard, the Committee further regretted the continual recourse made by the Government to the Public Order and Security Act (POSA) and lately, to the Criminal Law (Codification and Reform) Act of 2006, in the arrest and detention of trade unionists for the exercise of their trade union activities, despite its calls upon the Government to cease such action. The Committee also observed that the Committee on Freedom of Association continued to examine numerous complaints regarding these serious matters.

The Committee took note with deep concern of the vast information presented to it concerning the surge in trade union rights and human rights violations in the country and the ongoing threats to trade unionists' physical safety. In particular, it deplored the recent arrests of Mr Lovemore Matombo and Mr Wellington Chibebe and the massive violence against teachers as well as the serious allegations of arrest and violent assault following the September 2006 demonstrations.

The Committee emphasized that trade union rights could only be exercised in a climate that was free from violence, pressure or threats of any kind. Moreover, these rights were intrinsically linked to the assurance of full guarantees of basic civil liberties, including freedom of speech, security of person, freedom of movement and freedom of assembly. It recalled that it was essential to their role as legitimate social partners that workers' and employers' organizations were able to express their opinions on political issues in the broad sense of the term and that they could publicly express their views on the Government's economic and social policy. The Committee therefore urged the Government to ensure all these basic civil liberties, to repeal the Criminal Law Act and to cease abusive recourse to the POSA. It called upon the Government immediately to halt all arrests, detentions, threats and harassment of trade union leaders and their members, drop all charges brought against them and ensure that they were appropriately compensated. It called upon all Governments with missions in the country to be present at the trial of Mr Matombo and Mr Chibebe and follow closely all developments in relation to their case.

The Committee urged the Government to cooperate fully in the future with the ILO supervisory bodies in accordance with the international obligations that it voluntarily assumed by its membership in the Organization.

The Committee firmly urged the Government to ensure for all workers and employers full respect for the civil liberties enunciated in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights without which freedom of association and trade union rights were void of any meaning. It urged the Government to accept a high-level, tripartite, special investigatory mission in this case of flagrant disregard for the most basic freedom of association rights. It urged the other governments that had ratified this Convention to give serious consideration to the submission of an article 26 complaint and called upon the Governing Body to approve a commission of inquiry.

The Committee decided to include its conclusions in a special paragraph of its report. It also decided to mention this case as a case of continued failure to implement the Convention.

The Worker members highlighted the exceptional statement of the Employer members on this case and expressed their thanks in this regard.