Individual Case (CAS) - Discussion: 2010, Publication: 99th ILC session (2010)

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

A Government representative, Minister of Labour and Social Security, said that his Government attached great importance to the work of the Conference Committee and the goals of the ILO and undertook to continue observing the letter and spirit of ratified ILO Conventions including Convention No. 87. He would seek to demonstrate that Swaziland had achieved significant progress towards compliance with international labour standards.

With respect to the Industrial Relations Act (IRA), the Government had published the Industrial Relations (Amendment) Bill and had tabled it in Parliament where it was currently under consideration. The Bill addressed several issues raised by the ILO high-level mission as well as the Committee in that it: (1) granted the right to organize to domestic workers by broadening the definition of “undertaking” (clause 2(1)(b)); (2) provided for the establishment of a minimum service in the event of strikes in sanitary services; (3) removed the statutory restrictions relating to the nomination of candidates and eligibility for union office (clause 3); (4) shortened the dispute settlement procedures (clauses 5 and 6); and (5) ensured that the Conciliation, Mediation and Arbitration Commission (CMAC) would only supervise strike ballots at the union’s request (clause 6(b)).

With regard to the status of social dialogue, the Government representative announced that the National Steering Committee on Social Dialogue had been appointed and comprised the Minister of Labour and Social Security as the Chairperson, representatives from the two workers’ and two employers’ federations, as well as the Principal Secretary, Labour Commissioner and Legal Advisor of the Ministry. The Committee was fully operational and had agreed to a schedule of monthly meetings for 2010. In addition, the discussions on the Decent Work Country Programme had been concluded and the social partners intended to sign it shortly.

The Government representative vehemently denied the alleged indiscriminate use of the Public Order Act of 1963 to repress lawful and peaceful strikes. The Act did not apply to meetings of lawfully registered trade unions. In the event, however, that a meeting turned violent, police might intervene to maintain law and order. Its presence was essential to protect both the rights of persons participating in strike action and of innocent citizens. He also drew the Committee’s attention to the appointment in September 2009 of the members of the Commission on Human Rights and Public Administration. This autonomous body, the mandate of which covered human rights including workers’ rights, had commenced its work. With reference to collective bargaining for prison staff, the Government had taken the decision to amend the Prisons’ Act in line with the recommendation of the ILO high-level mission.

As to the practical application of section 40 of the IRA concerning civil and criminal liability of workers and their organizations, the Government representative believed that the provision did not impair the right to strike. However, strike and protest action became increasingly violent and destructive to private property. The Government not only had to ensure that workers freely enjoyed the right to strike but also to protect the rights of others. The worker groups should thus ensure that only their members took part in lawful strikes and instil a sense of responsibility in them. Regarding the repeal of the 1973 Decree/State of Emergency Proclamation (1973 Decree), he reiterated that the 2005 Constitution was the supreme law of the country. Finally, the Government representative reaffirmed that Swaziland was committed to complying with international labour standards and would continue to respect its reporting obligations.

The Worker members stated that Swaziland had a long tradition of trade union repression and that the case was therefore regularly discussed by the Committee. The previous year it had even been mentioned in a special paragraph. The facts were unfortunately familiar and, even if the Government’s replies varied slightly, they did not contain much promise of improvement.

With regard to the facts of the matter, it was worth recalling that they involved acts of violence and brutality by the police against trade unionists and union demonstrations, threats of dismissal of union members who had gone on strike in the textiles sector and the summonsing and arrest of union leaders such as the General Secretary of the Swaziland Federation of Trade Unions (SFTU). Only recently, that very week, private houses had been raided and bombed.

In terms of legislation, the Committee had found on every occasion that it had discussed the case that the Government had not adopted the amendments that had been called for years, despite the technical assistance it had received from the ILO and the visit of a high-level mission in 2007. They reminded the Committee that the IRA needed to be amended, specifically on the following points: control over the appointment of union officials, supervision of votes on strike action, the ban on strikes in the health sector and the requirement that a trade union’s membership comprise 50 per cent of the workers for it to be recognized. The Government had only very recently submitted to Parliament the amendments to the IRA to which the Labour Advisory Board (LAB) had agreed upon in 2009. There was therefore no guarantee that the new Act would be adopted and implemented in the near future. There were, moreover, several other laws that directly or indirectly undermined trade union activities: the 1973 Decree, which had supposedly been repealed by the new Constitution, which nevertheless contained the same provisions; the 1963 Public Order Act which had been used to suppress lawful strikes and peaceful demonstrations; the Police Act which had been used to arrest union officials and confiscate union property; the Prisons’ Act prohibiting prison staff from forming trade unions; and, above all, the Suppression of Terrorism Act which served to justify measures taken against union activities.

Social dialogue was also a source of concern. The Government spoke of a high-level commission on social dialogue, but if the commission had ever existed it had been dissolved in 2009 and replaced by a much lower level committee composed of the social partners and only ministers of labour and charged with social affairs, which had not met for months. This wordless social dialogue illustrated the Government’s approach to the subject, which involved announcing reforms and establishing committees without any actually happening in practice.

The Employer members recalled that this case had a long and disappointing history of failure to comply with the Convention. It had been the subject of 17 observations by the Committee of Experts and was being examined by the Conference Committee for the ninth time. With reference to their earlier intervention during the general discussion, the Employer members wished to emphasize that, in their view, Convention No. 87 neither provided for the right to strike nor guarantee certain forms of strike action. They could not therefore agree with the comments of the Committee of Experts in respect of recognizing the right to strike in sanitary services, ensuring that penalties imposed on strikers did not impair the right to strike and guaranteeing that workers might engage in sympathy strikes without incurring sanctions. They also noted that it would have been useful for the Committee’s discussion to be able to consult the 2009 International Trade Union Confederation (ITUC) comments concerning the alleged detention of the General Secretary of the SFTU and the Government’s reply.

The Employer members believed that there remained two fundamental issues in this case: (1) the continuing failure to adopt national legislation guaranteeing freedom of association and the protection of the right to organize; and (2) the failure to engage effectively in social dialogue. Regarding the first issue, the stark fact was that, more than 30 years after the ratification of the Convention and despite last year’s mention of the case in a special paragraph of the Committee’s report and ILO technical assistance, including the 2006 high-level mission, the Industrial Relations (Amendment) Bill had not yet been adopted. It was therefore difficult to remain anything other than highly sceptical that the legislation would finally be amended. Recalling that through ratification of the Convention the Government had committed itself to giving effect to Articles 2, 8 and 11, the Employer members stated that the Government should continue to avail itself of ILO technical assistance, in order to address as a matter of urgency all pending legislative issues mentioned in the observation of the Committee of Experts.

With regard to the second issue, noting that the Special Consultative Tripartite Subcommittee of the High-level Steering Committee on Social Dialogue had not met for several months and in the absence of any information concerning a new lower level committee, the Employer members urged the Government to reinvigorate all efforts to engage in social dialogue without delay. The failure to do so up to now gave rise to serious doubts about the Government’s will to comply with the requirements of the Convention, given the allegations of the continuing violations in this case of repression of freedom of speech, police brutality and oppression. When considering the report of the Committee of Experts, it was challenging to accept that there had been genuine progress. The Employer members therefore respectfully invited the Government to provide today: (1) a clear and unequivocal time frame for the adoption of national legislation giving effect to the Convention, in particular Articles 2, 8 and 11; and (2) a clear and unequivocal commitment to engage effectively in social dialogue.

The Worker member of Swaziland affirmed that the denial of freedom of association had reached deplorable levels in Swaziland and that the atmosphere had become so threatening and oppressive that workers died in their quest to associate and assemble freely. The lack of social dialogue was one of the key contributing factors to the social, political and economic challenges faced by the country. Despite the promise made by the Government at the 2009 discussion to convene the High-level Social Dialogue Committee to be chaired by the Deputy Prime Minister, the Government had done the opposite by dissolving the Committee in December 2009 and replacing it with a low-level committee to be chaired by the Minister of Labour and Social Security. Unlike the previous body, the current National Social Dialogue Committee had no budget, as the social partners were expected to bear the costs, and had not yet discussed any matter of importance, nor was any cluster committee in place. The arrangements were clearly intended to impede the Committee’s work, given the Government’s preference for a socalled smart partnership dialogue process which was not representative, but was fully funded. The above clearly demonstrated that the Government did not support social dialogue.

In relation to the amendment or repeal of inconsistent legislation, the Worker member indicated that the 2005 Constitution could not revoke the effects of the 1973 Decree, since the Constitution only nullified legislation that was inconsistent with its provisions. The Decree therefore clearly remained in force. Peaceful trade union protest actions continued to be violently disrupted under the guise of enforcing the Public Order Act or the Suppression of Terrorism Act. Unions remained civilly and criminally liable for any acts occurring during protest action under section 40 of the IRA. In this context, he contested that there had been any acts of violence initiated by workers during protest action. The Government had only submitted the Industrial Relations (Amendment) Bill to the LAB in May 2010, although the tripartite drafting process had been completed before June 2009, which proved the Government’s claims of progress misleading. Moreover, he was not aware of any proceedings instituted to amend the Prisons’ Act to grant correctional service employees the right to organize.

The Suppression of Terrorism Act was used to repress voices of dissent of trade unions and political parties. It defined the term “terrorist act” as any act or action that compelled the Government to do or refrain from doing something. Given the monitoring role of trade unions as to whether government actions were in the interest of workers, trade union actions could easily fall under this broad definition which covered both peaceful and violent means. The Act was used to suppress union activities under the guise of suppressing terror. The Workers’ Day celebration on 1 May 2010 had been violently disrupted involving physical searches, confiscations and arrests. Mr Sipho Jele was charged under the Suppression of Terrorism Act and, after three days of custody, was reported to have hung himself in prison. Contrary to police instructions to bury him on the following day, the family had requested an independent autopsy. His burial on 15 May was brought to a halt by 400 armed police and at the funeral on 21 May the leader of the Peoples United Democratic Movement (PUDEMO) had been arrested. The Government had since instituted an inquest into the death of Mr Jele, which was, however, limited to the causes of death and did not cover the police conduct on 1 May. In November 2009, police officers had detained organizers of the Swaziland Transport and Allied Workers Union, confiscated membership forms and interrogated all union officers on the grounds of orders to prevent the unionization of public transport workers. The Worker member concluded that Swaziland had turned into a police State. The Government should be encouraged to remove urgently all obstacles to fundamental rights and freedoms.

An Employer member of Swaziland commended the Government for the significant progress made so far on the legislative amendments. The Industrial Relations (Amendment) Bill sought to recognize the right to organize of domestic workers and the right to strike in sanitary services, remove the statutory restrictions on the nomination of candidates and eligibility for union office, ensure that the CMAC could not supervise strike ballots unless requested to do so and shorten dispute settlement procedures. Although practical implementation was still a challenge, she was optimistic that the country had taken a step in the right direction.

It was regrettable that once again the application of this fundamental Convention by Swaziland was being discussed in the Committee. The issues raised in this case could have been easily resolved if the Government had been genuinely committed to the process of social dialogue. The Swaziland employers strongly believed in social dialogue, in particular in light of the difficult economic situation of the country, and appreciated the establishment of the National Steering Committee on Social Dialogue, which had scheduled monthly meetings to address key issues of concern to the social partners. She expressed disappointment at the slow pace of the social dialogue process and indicated that this issue had repeatedly been brought to the attention of the relevant authorities. While the Ministry of Labour and Social Security had displayed good will, this was not evident in other parts of the Government. As long as both social partners and the Government were committed to the process of social dialogue, progress on all pending issues of the case could be achieved. She therefore strongly recommended that an effective social dialogue framework be put in place as a matter of priority and looked forward to the non-inclusion of Swaziland in a special paragraph in the Committee’s report.

Another Employer member of Swaziland saw a solution only in the process of constructive social dialogue and was committed to persuading the Government to deal with all the issues raised by the Committee. Requiring a stable and free political environment in which enterprises could operate, his organization was not involved in politics and aimed to undertake a moderating role. Meetings of the Steering Committee on Social Dialogue had commenced and the social partners had vowed to make it a success and he therefore emphasized that the case should not be included in a special paragraph of the Committee’s report.

The Government member of Norway, speaking on behalf of the Government members of Denmark, Finland, Iceland, Norway and Sweden, noted with growing concern the continued negative developments of the human rights situation in Swaziland in general and the lack of compliance with the Convention in particular. She was further deeply concerned at the aggravated situation in relation to political opposition and trade unions in Swaziland, including freedom of expression, as well as the right to organize. Noting that the ITUC had reported “serious acts of violence and brutality of the security forces against trade union activities and union leaders in general”, she deplored the death in custody of PUDEMO member Sipho Jele, who had been arrested on Workers’ Day.

The Committee of Experts had once again highlighted several pieces of legislation because of their non-conformity with the Convention. While considering the steps taken to amend the legislation, she urged the Government to ensure that its legislation be fully compliant with the Convention. The human rights situation in the country, including the right of workers to organize and to arrange and participate in legal strikes in accordance with Convention No.87, was a long-lasting case and had been discussed in this Committee several times. She therefore urged the Government to continue to benefit from the technical assistance of the ILO in order to bring the legislation into compliance with Convention No. 87 and to ensure the effective enforcement of the legislation. She further urged the Government to provide detailed information regarding the reported acts of violence against trade union activists and those participating in lawful and peaceful strikes.

The Worker member of South Africa regretted that Swaziland had become southern Africa’s tragedy. South African workers had worked closely with Swazi trade unions in support of the struggles for workers’ rights and democracy. It had become clear that there could be no meaningful freedom of association, social dialogue or improvement in the lives of workers without democracy. In the region, patience with the ever-deteriorating conditions in Swaziland was growing thinner and far more drastic steps were required to turn things around. The mysterious death of Mr Sipho Jele and the intensified ruthless persecution of workers and political activists pointed to a regime determined to intensify the harsh treatment of its people. The King’s order for the strangling of opposition, targeting particularly activists of the Swaziland Youth Congress (SWAYOCO) and the PUDEMO, with its President Mario Masuku, had laid the basis for the current unacceptable levels of worker persecution. The Suppression of Terrorism Act, the Public Service Bill and a series of other laws confirmed the increased militarization of society, further limiting and worsening the possibilities for freedom of association. Army personnel were all around intimidating people. The persecution of political and workers’ activists was a systematic attack on those people demanding democracy and social justice. The Swazi State had never felt as threatened and desperate. This was manifested in the increased attacks on workers and all those fighting for democracy and was similar to the tactics used by South Africa’s Apartheid regime, which had also bombed and raided activists’ homes. As Swaziland was permanently represented on the ILO’s list of violators of Convention No. 87, decisive steps had to be taken to achieve the desired impact. She therefore: supported the call for an ILO high-level delegation whose findings should form the concrete basis for real progress; called for meaningful, genuine and lasting social dialogue that would help Swaziland out of the current quagmire; and also called for an independent inquiry into the death of Mr Sipho Jele and the behaviour of the Swazi security forces in relation to workers’ activities.

The Worker member of Ghana observed that the environment for workers to exercise the right of freedom of association and protection of the right to organize, as enshrined in Convention No. 87, remained very bad. The Government had made little progress in ensuring and guaranteeing workers’ rights in general despite, as observed by the Committee in 2009, the country benefiting from ILO technical assistance and high-level missions. This was compounded by the absence of a true pluralistic democratic environment in Swaziland and the suppression of freedom of choice. The repeal of the draconian 1973 Decree through the enactment of a new Constitution in 2005 had merely maintained the political status quo in force since 1973, giving executive, legislative and judicial powers to the King and setting a ban on political parties and meetings, including union meetings, as demonstrated in the brutal disruptions of the 2010 May Day celebrations by state security. Intimidation, arbitrary arrests and brutality against trade union activists had continued with impunity. Of particular concern was the use of state security to intimidate and harass workers and trade union leaders, which had instilled awe and insecurity in workers and the wider society and undermined the very essence of freedom of association.

The enactment of the Suppression of Terrorism Act had further worsened the environment for exercising the rights enshrined in the Convention. Based on this Act, the Government had started categorizing actions of workers, trade union associations, political activists and civil society at large as acts of terrorism. Such criminalization of trade union and workers’ activities was not acceptable as it violated fundamental workers’ rights and to the contrary of the Government’s assertions, social dialogue in its true sense did not exist.

There could be no meaningful progress in respect of workers’ rights in particular as they related to Convention No. 87 as long as the Government denied its citizens, including the workers, a democratic environment and space and continued to apply repressive legislation. The recent amendment of some pieces of legislation, as brought forward by the Government, was not enough, but merely cosmetic, as the practice on the ground showed that little or no improvement at all had been achieved.

Taking into account that freedom of association was particularly important to attain the ILO’s objectives, he strongly urged the Government to work with the social partners and other stakeholders swiftly towards removing all repressive pieces of legislation, including the Suppression of Terrorism Act, and to create a true democratic environment enabling the exercise of the right to freedom of association.

The Government member of Mozambique, speaking on behalf of the Government members of the Committee, Member States of the Southern African Development Community (SADC), endorsed the report and Swaziland’s commitment to apply and respect all ratified ILO Conventions, and notably Convention No. 87. Considering the observations of the Committee of Experts, the SADC countries felt that the steps currently being taken, to which the Employer members had referred, were pointing in the right direction. The meeting of Ministers of Labour and the social partners of the SADC countries had welcomed the fact that all the ILO’s fundamental Conventions had now been ratified. The members of the SADC were endeavouring to ensure the implementation of the Conventions.

The Worker member of the United States emphasized that, since 1997, Swaziland had been reviewed in relation to Convention No. 87 on numerous occasions and the case had been included in a special paragraph of the Committee’s report on several occasions, including in 2009. The Committee of Experts had explicitly called for authentic results to be produced at the 2010 session of the Conference Committee, in particular: (1) abrogating the 1973 Decree, which had been used to destroy the exercise of the right of workers to freedom of association; (2) amending the 1963 Public Order Act to avoid it being used to proscribe peaceful strikes; (3) amending the Prisons’ Act to grant trade union rights to prison staff; and (4) overhauling those civil and criminal liability provisions of the IRA imposed on trade union leaders for having exercised their right to coordinate peaceful strike action. It was unfortunate that in this case the Employer members did not recognize the irrefutable jurisprudence of the ILO supervisory bodies stating that the right to strike was also at the heart of Convention No. 87.

In 2009, the Committee had called upon the Government to “transmit a detailed report to the Committee of Experts” for its 2009 session, containing a “time-line for resolution” of all pending questions. Since the Government had not implemented any of the requests made and even the Bill to amend parts of the IRA remained a Bill, the Government had once again acted in contempt of the ILO supervisory system’s conclusions. The Government continued to use devices such as the 1973 Decree and the Public Order Act to victimize the SFTU through police harassment and arrests, as well as to justify death threats to Mr Jan Sithole’s family. These devices had also been used to bust legitimate trade union activity in Swaziland’s critical textile sector, which was dominated by Taiwanese companies. In March 2008, the police had conducted a crackdown on a strike of thousands of textile workers with tear gas and gunshots.

This was most regrettable as the Government, even in the midst of the great global recession, could easily start overhauling the legislative and executive measures used to justify the arrest, beating, imprisonment and terrorization of Swazi trade unionists, especially in the textile and apparel sectors. It could also easily start complying with all requests made by the ILO supervisory bodies over the last decade. Compliance would be beneficial since trade and market access policies implemented by the United States, such as the African Growth and Opportunity Act, rewarded the observance of core labour standards, including freedom of association. While hoping that the Government would take serious steps to advance both the principle of decent work and those principles enshrined in Convention No. 87, he requested that the conclusions of the Committee be included in a special paragraph of the Committee’s report and that a high-level tripartite mission be conducted.

The Worker member of the United Kingdom had been surprised when, in 2009, he had heard the Employer members’ recollection that since 1997 the Government representative had repeatedly stated that legislation was being changed, the situation was improving and Swaziland would soon be compliant. The only change, however, had been a change for the worse, as shown by the adoption of the new law to remove the right to bail for anyone arrested for participating in protests. Therefore, the Government’s statement had to be taken with a high degree of scepticism, as could be seen when the current discussion was put in a historical context. Swaziland had gained independence and, as was hoped, genuine freedom for its people in 1968 with the establishment of a constitutional monarchy. However, in 1973 the then governing party had effectively ceded absolute power back to the King and established a long-lasting state of emergency which, despite the hope invested in the 2005 Constitution, effectively remained in place today. Swaziland had become a member of the ILO in 1975 and had ratified numerous Conventions without, however, complying with the requirements of several of them, in particular Convention No. 87 and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

With political parties banned, trade unions had continued to play an essential role in representing the interests of ordinary Swazi citizens. Recalling the repressions enumerated by other speakers, he added that recently suspicious burglaries and thefts of computer equipment from union leaders’ homes and a bomb attack on the house of Mr Alex Langwenya had taken place. While the culprits were unknown, the fact that the police had arrived minutes after the bomb attack and arrested Mr Langwenya himself was not very reassuring. One of the most recent violations had taken place on May Day 2010 when a trade unions festivity at the Salesian sports ground had been raided by the police based on the Suppression of Terrorism Act. Searching for people wearing T-shirts of banned organizations, many gatherers, including guest speakers, had been arrested by the police, partly even violently. The head of the Swazi Consumers’ Association had been arrested on the ground that he was not a worker. Most of those arrested had later been released, but nothing had been heard of union member Sipho Jele, whose family had been interrogated for four hours without being told of his whereabouts. On 4 May 2010 his body had been released and it had been stated that he had hung himself from the rafters of the prison toilet and that he had had to be buried immediately. Very few people believed that he had killed himself. In light of the comments of the Committee of Experts, and taking into consideration the statements made by the Government representative, he emphasized that all those, like Mr Sipho Jele, who were fighting in Swaziland for their most basic rights should see that the ILO could take action that would lead to real change.

The Government member of South Africa aligned himself with the statement made by the Government member of Mozambique, who had spoken on behalf of the Government members of the SADC countries, and expressed his condolences to Mr Jele’s family. He welcomed the report of the Committee of Experts and offered his country’s assistance in promoting social dialogue in Swaziland, as dialogue had been key to his own country’s success. He further welcomed the Government’s commitment to working with the Committee and urged the ILO to support the promotion of meaningful and sustainable social dialogue in Swaziland.

The Worker member of Germany, speaking on behalf of the European trade unions, observed that Swaziland had been in a state of emergency for 35 years. All powers were vested in the King, and opposition parties and gatherings were prohibited. The population, of which 70 per cent lived below the poverty line, suffered most. The violation of trade union rights in the country had been included in a special paragraph of the Committee’s 2009 report. Despite the Government’s promises, the situation of trade unionists and worker representatives had not at all improved. Trade union rights had been curtailed and trade unionists engaged in the promotion of democracy and pluralism were persecuted, threatened and often had to pay for their commitment with their lives.

The Government had established national committees containing the word “dialogue” in their title and, according to the Government, “partnership” also seemed to be a concept with which the Government wanted to face national challenges. These were, however, deliberate deceptions and abuses of terms which were normally used to describe an equal exchange. However, the Government still took decisions unilaterally in its own best interests and to sustain its power, but not for the benefit of the people. This was exemplified, inter alia, with the High-level Steering Committee on Social Dialogue which, despite its nice name was not, however, linked to social dialogue, notwithstanding the Government’s assurances that social dialogue was welcome. Social dialogue in Swaziland only meant one thing: the Government talked, if ever, with employers’ and workers’ representatives and at the end acted as it pleased. This was not social dialogue, but an anti social monologue.

Social dialogue meant that workers, employers and government representatives communicated in a way that enabled them to know and understand the respective positions and to reach agreed conclusions. Only on such a basis could a country’s social and economic progress be promoted. Social dialogue was also key for reducing gaps between laws and their implementation. He was very concerned at the fact that, despite the demands of the international community based on the ratification of the Convention more than 30 years ago, the Government had for years been violating Convention No. 87 and had not therefore been in a position to close the big gaps that existed in national laws. The Committee of Experts had noted that the High-level Steering Committee on Social Dialogue had not met for months. He therefore urged the Government to: (1) include the social partners in all decisions in regard to adjusting the Constitution and national laws to the requirements of Convention No. 87; (2) be open to social dialogue not only euphemistically on paper, but to really end its anti-social monologue; and (3) align the legal basis and its practical action with the requirements of Convention No. 87.

The Government member of Zambia aligned his Government with the statement made by the Government member of Mozambique, who had spoken on behalf of the Government members of the SADC countries. He expressed appreciation at the comprehensive statement made and the measures taken by the Government of Swaziland in an effort to respond to the recommendations of the Committee of Experts. He considered that the ratification of over 30 Conventions, including all eight fundamental Conventions, was also a positive and commendable action. He also expressed support for the legal reforms undertaken by the Government.

Another Government representative, Minister of Justice and Constitutional Affairs, recalled that the current Government had only come into office in 2008 and that one of its priorities was to align national laws with the Constitution. Thirty bills were being drafted by the Attorney-General, but this task was challenged by the limited staff of his office. The Commission on Human Rights and Public Administration, appointed in September 2009, would receive reports on human rights issues from all citizens. The amendment to the Prisons’ Act was an executive decision to be taken by the Minister of Justice and Constitutional Affairs. Once the ongoing drafting process was complete, the Bill would be forwarded to the Minister for Labour and Social Security, for submission to the Labour Advisory Board (LAB.) The workers’ allegation that nothing was being done with regard to the Prisons’ Act was therefore misleading. Furthermore, the unions had met with the police prior to the May Day celebrations to discuss security arrangements. The police had not harassed workers, but had attended the meeting to enforce the law in relation to certain individuals who were violating it. The Government regretted the death in custody of Mr Sipho Jele and had immediately initiated a public investigation led by a Principal Magistrate. The Government had nothing to hide on this matter and therefore a family doctor had been allowed to undertake the post-mortem, together with a government pathologist, and a lawyer appointed by the family was attending the investigation to test the evidence. With regard to the previously alleged murder of a worker, he emphasized that the Government had been cleared of all allegations following a high-level mission.

When the 2009 Public Service Bill had been submitted to Parliament, workers had lobbied for the Bill to be referred to the LAB, and the recommendations of the LAB had subsequently been considered by the Cabinet. In case of further issues pertaining to the Bill, he urged the unions to lobby Parliament as the Bill was now before Parliament.

The Government contested the statement that it used the Suppression of Terrorism Act indiscriminately to intimidate workers. The drafting of the Act was in line with UN Security Council Resolution 1373 (2001) and the Model Legislative Provisions on Measures to Combat Terrorism of the Commonwealth Secretariat and had been inspired by the United Nations Office on Drugs and Crime. According to its objectives, the Act was used to suppress all acts of terrorism and all individuals contravening the Act were arrested. In conclusion, he urged the Committee to take note of the significant progress made by the Government in responding to the issues raised and therefore insisted that Swaziland should be removed from the special paragraph in the Committee’s report.

The Employer members specified that, as their position was clear, they would not further address the comments of the Committee of Experts concerning the right to strike and the requirements of the Convention concerning freedom of association and the right to organize. As in the past, it was not possible to assess the technical information provided by the Government to this Committee. The Government’s assertion that significant progress had been made was disputable. The Labour Bill had been tabled before Parliament, but the request for a specific time frame for its adoption had not clearly been answered by the Government. The Employer members expressed their concern at the Minister of Labour’s lack of staff. With regard to social dialogue, there had been no commitment to hold meetings of the High-Level Steering Committee, and the Government’s indication that this Committee was fully operational was disputable. The Government’s only express commitment on these issues had been to continue to provide further reports. The Ministry of Labour required support to ensure that national legislation was adopted in compliance with the Convention, that resources to support social dialogue were made available and that the Government provided reports on the real situation in the country. Thirty years after Swaziland’s ratification of the Convention, scepticism remained. Unless positive measures were taken to comply with the Convention, this case risked remaining on the list of cases discussed by the Committee. The Employer members expressed support for the legislative steps that had been taken thus far. This case merited insertion in a special paragraph in the General Report. A high-level tripartite technical mission should be sent to Swaziland to inquire into the failure to adopt legislation to comply with the Convention, and to assess the current barriers to social dialogue.

The Worker members indicated that the situation in Swaziland had been a matter of concern for many years for a number of reasons: the harassment, persecution and murder of trade unionists; the numerous laws that were still contrary to the fundamental provisions of the Convention; and the lack of will by the Government to restore a climate of nonviolence and full democracy. The Government should therefore cease all violent acts against trade unionists, all repression of trade union activities and any denial of human rights. They also called on the Government to commission an independent inquiry into the events of 1 May this year. The Government should finally complete the legislative reforms that had been recommended by the Committee of Experts, with particular reference to the amendment of the Industrial Relations Act and the 1963 Public Order Act, and to repeal the Decree/State of Emergency Proclamation and the Suppression of Terrorism Act. The Worker members insisted in particular that the Government finally keep its promises and create the conditions for meaningful and lasting social dialogue. They proposed for that purpose the organization of a high-level tripartite mission and called for the Committee’s conclusions to be placed in a special paragraph of its report.

Conclusions

The Committee took note of the statement made by the Government representative and the discussion that took place thereafter. The Committee observed that the comments of the Committee of Experts had referred for many years to the need to amend the provisions of the legislation containing restrictions on the right to organize of prison staff and domestic workers, the right of workers’ organizations to elect their officers freely and to organize their activities and programmes of action, as well as the need to repeal the 1973 Decree/State of Emergency Proclamation and its implementing regulations and to amend the 1963 Public Order Act, which could be used to repress lawful and peaceful strikes.

The Committee noted the information provided by the Government representative that an Industrial Relations (Amendment) Bill, which amended a number of provisions objected to by the Committee of Experts, was now before Parliament under consideration by the relevant committee. The Government representative had indicated that the tripartite National Steering Committee on Social Dialogue for Swaziland had been established and a schedule of monthly meetings had been agreed. He had added that a Commission on Human Rights and Public Administration had been appointed in September 2009 to further strengthen the protection of human rights, including workers’ rights. Finally, the Government representative had repeated the previous statements made on the 1973 Decree/State of Emergency Proclamation and its implementing regulations and on the 1963 Public Order Act.

The Committee recalled that this case had been discussed on numerous occasions over the past ten years and that last year it had decided to include its conclusions in a special paragraph of its report. The Committee noted with concern the continuing allegations relating to acts of brutality by the security forces against peaceful demonstrations, threats of dismissal against trade unionists and the repeated arrests of union leaders, and firmly recalled the importance it attached to the full respect of basic civil liberties such as freedom of expression, of assembly and of the press and the intrinsic link between these freedoms, freedom of association and democracy. The Committee once again stressed that it was the responsibility of governments to ensure respect for the principle according to which the trade union movement can only develop in a climate free from violence, threats or fear and called upon the Government to ensure the release of any persons being detained for having exercised their civil liberties.

The Committee expressed the firm hope that the Industrial Relations (Amendment) Bill would be adopted in the very near future and that its provisions would be in full conformity with the Convention. Recalling that it was the Government’s responsibility to ensure an environment of credibility, the Committee urged the Government to take concrete and definitive measures without delay to effectively repeal the 1973 Decree and to ensure the amendment of the 1963 Public Order Act in order to fully comply with the requirements of Convention No. 87 so that they could no longer be used to prevent legitimate and peaceful trade union activities. The Committee urged the Government to accept a high-level tripartite mission in order to assist the Government in bringing the legislation into full conformity with Convention No. 87, to enquire into the May Day 2010 incident and to facilitate the promotion of meaningful and effective social dialogue in the country.

The Committee expressed the firm hope that the National Steering Committee on Social Dialogue for Swaziland would be immediately convened in order to achieve meaningful and expedited progress with respect to the issues raised. The Committee requested the Government to transmit detailed information in its next report due to the Committee of Experts, including on the progress made in the adoption of the Industrial Relations (Amendment) Act and the concrete steps taken on the pending issues. The Committee expressed the firm hope that it would be in a position to note tangible progress next year.

The Committee decided to include its conclusions in a special paragraph of its report.