Individual Case (CAS) - Discussion: 2011, Publication: 100th ILC session (2011)

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

The Government communicated the following information concerning the progress made on the recommendations by the ILO tripartite high-level mission (HLM), that had visited the country 25–28 October 2010.

A. Matters in progress

With respect to the National Steering Committee on Social Dialogue’s consideration to pursue the recommendation of the 2006 high-level mission to review the provisions of the Constitution in so far as they may have an impact on the Convention. The issue was placed on the agenda of the above Committee scheduled for 13 and 21 April 2011. These meetings had to be postponed due to a workers’ protest action on 12–15 April 2011. The issue will now be placed in the next scheduled meeting of the above Committee to be held on 13 July 2011.

With respect to the recommendation that the Government pass a formal decree or proclamation explicitly nullifying all provisions of the King’s Proclamation of 1973, during a social dialogue meeting held on 10 March 2011, the Minister of Justice and the Attorney General took part in the discussions with the social partners. The Attorney General would provide legal direction and guidance on how to address this recommendation. On 26 May 2011, the Minister of Justice and the Attorney General reported that the Cabinet reiterated its previous position that the King’s Proclamation of 1973 was automatically nullified by the coming into effect of the Constitution of 2005, as the supreme law of the country. Every law that was in conflict with the Constitution was automatically nullified by the coming into force of the Constitution. There were other legislations that also were nullified and it would not make sense only to single out the Proclamation at this stage. The Constitution stipulated the manner in which laws were passed. In terms of obtaining dispensation, laws were made by the King in Parliament. The Constitution allowed for Proclamations to declare a state of emergency. The country was currently undergoing law reforms, and had approached several international organizations including the Commonwealth, the European Union and the United Nations Development Programme for technical and financial assistance to conduct a legislative review and provide drafting expertise. Currently, the Commonwealth was assisting the country with the drafting of legislation to enable the Constitution to be fully functional. In view of the concerns and issues raised by the social partners and taking into consideration their implications for the economic development of the country, the Minister of Justice requested permission to go back to the Cabinet to further consult on the matter.

The ILO had been requested to carefully examine the Suppression of Terrorism Act, 2008, on the application of the Convention and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and give expert advice on the areas that were offensive and might be used to intimidate. This Act was drafted in line with the provisions of the United Nations standards and with technical assistance from the European Union and was used in line with its objective to suppress all acts of terrorism. Still awaiting the ILO’s guidance and advice on the matter, as requested in the letter dated 30 March 2011. On 26 April 2011, during a consultative meeting with the Director of the ILO Office in Pretoria, the Director was again reminded about the matter.

The ILO had been requested by the Government, in letters dated 20 August 2010 and 30 March 2011, to give expert advice on the provisions and the impact of the Public Order Act, 1963, on the application of Conventions Nos 87 and 98. The ILO Office in Pretoria had been given copies of the Police Act and regulations to facilitate the drafting of guidelines on the conduct and responsibilities of the social partners during protest actions. During the consultative meeting of 26 April 2011 with the Director of the ILO Office in Pretoria, the matter was raised again. He made a proposal to have a workshop with the police, the Government, workers and employers on how to manage protest actions in the future. This workshop would be facilitated by the ILO on 27–28 June 2011. All parties had been consulted and encouraged to participate.

With respect to the agreement between the Government and social partners on a timetable for the finalization of the Prisons (Amendment) Bill, the Minister of Justice and the Attorney General attended the social dialogue meeting on 10 March 2011 and were expected to come back with a progress report. During the social dialogue meeting held on 26 May 2011, the Minister of Justice and the Attorney General reported that the above Bill would be presented to the social partners during the social dialogue meeting scheduled for 13 July 2011. The social partners were in agreement that the draft Bill would be submitted to the Labour Advisory Board before it was published as a Bill.

With respect to the recommendation that the Public Service Bill be placed on the agenda of the National Steering Committee on Social Dialogue for consideration (social partners were calling for the withdrawal of the Bill so that their comments be incorporated), the Minister of Public Service, who also attended the social dialogue meeting on 10 March 2011, explained that it was currently being debated in Parliament. Further proposals for amendment could be forwarded through the parliamentary structures. However, arrangements were being made to assist the parties to have a meeting with the relevant Committee to make their submissions. Before debating the Bill, the Assembly published a notice in the local media, calling upon the public to make their input, and the Swaziland National Association for Civil Servants submitted their proposals. A formal request was made with the Clerk of Parliament to facilitate a meeting with the relevant Committee. The Clerk was given an indication that the Senate would prefer to meet with social partners once the Bill had been tabled in the Senate.

Pursuant to recommendations that formal discussions take place between the social partners and the Commissioner of Police regarding the application of the Public Order Act and its impact on freedom of association and the right to collective bargaining, these discussions, including the participation of the Commissioner of Labour, took place before the last protest action in September 2010 and were fruitful. The ILO had requested to be given all the relevant pieces of legislation to draft guidelines to the National Steering Committee on Social Dialogue. The police, workers and the Ministry of Labour would have workshops on their responsibilities during protest actions. Recently, workers had expressed a wish to meet with the Prime Minister to discuss some of their concerns. The Prime Minister had agreed, subject to confirmation of a date by the social partners. A meeting with the social partners and the Commissioner of Police was scheduled for 6 April 2011. This meeting discussed the role and responsibilities of the social partners during the protest action which took place on 12–13 April 2011. The police were commended for the good work as there were no incidences of violence during the protest march of 18 March 2011. Teachers and labour organizations were also applauded for monitoring the proceedings during the march, although there were some incidences of stone throwing directed at the police who did not retaliate. The May Day celebrations, 2011, were peaceful and there were no incidences of violence towards the workers. This achievement was a result of constant consultations between the police and the social partners.

In order to build the capacity of the police and sensitize them on international human rights instruments and Conventions Nos 87 and 98 relating to freedom of association, collective bargaining and protection of the right to organize, a formal request was made to the ILO to hold workshops with the police, workers, employers and the Ministry of Labour on their role during protests, as requested in the letters dated 20 August 2010 and 30 March 2011. This capacity-building workshop will be held on 27–28 June 2011 as proposed.

With respect to the recommendation that progress be made on the National Steering Committee on Social Dialogue, the Government had reconsidered the structure to operationalize social dialogue. The current structure was officially launched by the Prime Minister in July 2010. Members of the National Steering Committee on Social Dialogue were appointed under Legal Notice No. 127 of 2010. The National Steering Committee on Social Dialogue had been meeting monthly since February 2010 and a lot of ground had been covered to ensure meaningful and effective dialogue in the country. In September 2010, the Committee and relevant social partners held a workshop on the social dialogue process. This training was facilitated by the Director of the ILO Country Office in Pretoria. The Committee was currently in the process of drafting and finalizing a Constitution to institutionalize and guide the process of social dialogue. The recommendations of the ILO high-level mission had dominated the agenda of the social dialogue meetings. The Chairperson of the Committee had successfully invited two ministers, the Minister for Public Service and the Minister of Justice, and also the Attorney General to dialogue with the Committee on the Public Service Bill, the nullification of the King’s Proclamation of 1973 and the amendment of the Prisons Act, to ensure the right to organize and to negotiate collectively for prison staff. The Committee would be undertaking a study visit to the National Economic Development and Labour Council (NEDLAC) in South Africa to learn from their good practice as they had benefited through dialogue. This visit was rescheduled for July 2011, as the one planned for April 2011 could not take place after cancellation by NEDLAC. New dates had been proposed for early July through the ILO Office in Pretoria.

B. Summary of completed matters

The Government pursued the giving of royal assent to the Industrial Relations (Amendment) Bill, to ensure that the identified areas of the Industrial Relations Act were properly addressed, which was received, and the Act came into force on 15 November 2010. This Amendment Act provided for: (i) an enhanced union right to collective bargaining (section 42) by requiring employers with more than two unrecognized unions to give bargaining rights to such unions; (ii) no requirement for compulsory supervision of strike balloting by the Conciliation Mediation and Arbitration Commission (section 86); (iii) strike notice period had been reduced (section 86); (iv) removal of the statutory restriction on the nomination of candidates for union office (section 29); and (v) establishment of a minimum service in sanitary services (section 2), so that certain categories of workers in the sanitary services were not unduly denied the right to strike.

Finally, with respect to the coroner’s investigation on the death of Mr Sipho Steven Jele, the coroner completed this investigation and submitted a report, which was shared with the social partners. The conclusion in the report was that Sipho Jele committed suicide. The coroner’s hearing was made public and the Jele family were allowed to use their own pathologist and they also had their own legal representative, throughout the hearing. Copies of the report were given to the workers’ and employers’ federations. The report was forwarded electronically to the ILO Office in Pretoria.

In addition, before the Committee a Government representative recalled that, during the presentation of the report of the ILO tripartite high-level mission, his Government had pledged its full commitment to addressing the issues identified by the Committee of Experts. With a view to giving a detailed account of the progress achieved to date, he provided the following additional information.

In the first place, he highlighted the written information provided concerning: first, the adoption of the Industrial Relations (Amendment) Act No. 6, of 2010; second, the national social dialogue structure; third, the coroner’s report on the death of Mr Sipho Jele; fourth, the timetable for the amendment of the Prisons (Amendment) Bill; and fifth, the situation with regard to the King’s Proclamation to the Nation of 12 April 1973. He added that, sixth, the Suppression of Terrorism Act, 2008 had been drafted in line with the Model Legislation Provisions on Measures to Combat Terrorism, developed by the Commonwealth Secretariat and approved by the Experts of the Commonwealth Security Council, also known as the Counter Terrorism Committee. Seventh, the consultations that had taken place between the social partners and the Commissioner of Police on the application of the Public Order Act, 1963 had been either organized under the umbrella of the National Steering Committee on Social Dialogue or initiated by the Ministry of Labour and Social Security prior to protest actions with a view to achieving understanding by all parties and ensuring peaceful actions. He reported, however, that protest actions on 12 to 14 April 2011 had not been peaceful as they had coincided with demonstrations by other groups advocating for regime change. No government could reasonably be expected to take a casual approach to serious threats of regime change. Every government had the responsibility to ensure the safety of its national interest. Despite the progress made in the management of strikes and protest actions, he recalled that a formal request had been made to the ILO to help develop guidelines on the conduct and responsibilities of the police and social partners during strike and protest actions. Copies of the Police Act and Regulations had been provided to the ILO to facilitate the drafting of such guidelines. Eighth, in relation to the Public Service Bill, the workers had been able to make their input to the text which had been examined by the Labour Advisory Board. The Bill had already been debated by the House of Assembly and would be presented to the Senate. Ninth, on 26 April 2011, the Government had requested the ILO to provide assistance with the review of the provisions of the Constitution and their impact on the Convention. Tenth, in relation to the issue of anti-union discrimination in export processing zones (EPZs), the speaker indicated that a joint inspection of the textile and apparel industry had been conducted in November 2010, covering 23 establishments employing up to 15,939 workers, that follow-up inspections were currently being conducted and that those deliberately failing to comply with labour laws were being prosecuted. Finally, sections 40 and 97(1) of the Industrial Relations Act, 2000, respectively covering civil liability and criminal liability of organizations or their office bearers for damage and other unlawful behaviour during strikes and protest actions, were on the agenda of the Labour Advisory Board.

The Worker members said that it was not surprising to see Swaziland before the Conference Committee, following a special paragraph the previous year and the ILO tripartite high-level mission in October 2010. Swaziland had a long history of repressing trade unions, and the Government’s replies promised only scant progress. The country continued to be scarred by police brutality in the face of non-violent demonstrations, which on 1 May 2010 had led to the death of a demonstrator in custody. Trade union leaders were still being arrested and harassed in their homes, for example following the entirely legal days of protest held at the beginning of April 2011. In terms of legislation, the amendments and repeals requested for years were still being awaited, despite ILO high-level missions in 2006 and 2010. The Government was in the habit of systematically citing the drafting of bills which subsequently turned out not to exist. After all of these years, the Industrial Relations Act (IRA) had been amended only in certain areas relating to restrictions on the appointment of trade union leaders, the supervision of strike ballots and collective bargaining in enterprises with more than two trade unions. However, those amendments would remain empty words unless other articles of the IRA, such as provisions on the civil and criminal liability of trade union officials and their unions, were amended and a number of other general acts directly or indirectly seriously affecting trade union activities were repealed or amended. The Public Order Act, the Police Act and even the 1973 Proclamation of a State of Emergency, which had formally been revoked but was incorporated in the new Constitution, all allowed legitimate trade union activities to be repressed or penalized. Within the long list of such legislative texts, the recent 2008 Suppression of Terrorism Act was particularly formidable in so far as it provided a basis for justifying a wide range of attacks on freedom of association. In its statement this year, the Government had again contented itself with giving updated information on bills and discussions it said were under way, so as to delay any change. The situation with regard to social dialogue was equally worrying. The Government had referred to a National Steering Committee on Social Dialogue, the structure of which had apparently been bolstered. Genuine social dialogue, however, could not exist when one of the parties lived under permanent threat of arrest or aggression. The developments reported in that regard illustrated once again the false promises made by the Government to the ILO.

The Employer members, while stressing that this was a serious case, indicated that their view was slightly less negative than that of the Worker members, in light of the written and oral information supplied by the Government which necessitated the examination and appraisal of the Committee of Experts. The Conference Committee was examining this case for the tenth time and had included its conclusions in a special paragraph of its report in 2009 and 2010. Following its 2010 conclusions, an ILO tripartite high-level mission had visited the country in October 2010. The present case dealt primarily with three issues: violation of civil liberties, interference in trade union affairs and lack of effective social dialogue. The information provided by the Government appeared to indicate a change of attitude that needed to be acknowledged but that would need to be evidenced by future action. The Employer members had therefore adjusted their position so as to focus on approaches accelerating the Government’s attempts to solve the long-standing issues. However, the information submitted by the Government only constituted a small first step. Legislation needed to be brought into line with the requirements of the Convention and needed to be implemented with a rigorous system of labour inspection and administrative complaints process with recourse to an independent judiciary with enforcement authority. While this year’s May Day had been peaceful, police interference in peaceful protest activities persisted and needed to cease. Stressing that many measures remained to be taken to give effect to the Convention, the Employer members believed that ongoing ILO technical assistance was crucial to tackle the issues relating to legislation, social dialogue and police interference. They called for a commitment by the Government to taking advantage of the technical assistance of the ILO so that by the end of 2011 concrete proposals would be enacted and measures would be taken to ensure their implementation. It was critical that the Government provide substantial evidence that its change of attitude was sustainable.

The Worker member of Swaziland drew the attention of the Committee on the governance and human rights crises in the country. Indicating that workers could not meet, march or use the media freely, he stated that social dialogue in such a context was a farce for the following reasons: (i) the continuous arrests and harassment of trade union and civil society leaders did not create a climate favourable to genuine negotiations; (ii) the lack of serious political will relegated the negotiation process to the level of a mere talk-shop; (iii) social dialogue was being organized only as a public relations exercise to give the impression that human rights and trade union rights violations were being addressed; (iv) the authorities, including the head of State, publicly demonized any form of negotiation with the trade union movement and civil society; (v) the public institutions such as the judiciary, the media, security and religious institutions were used against trade unions and civil society; and (vi) it would be fundamental that the process be inclusive, transparent, accountable and binding. In this context, any claim of progress would only be intended to mislead the Committee. As regards the legal framework, the speaker noted that the Government had refused to withdraw the Public Service Bill from Parliament for discussion by the National Steering Committee on Social Dialogue. Sanitary workers were still denied the right to strike despite the recommendations of the ILO tripartite high-level mission. Section 40 of the Industrial Relations Act had still not been amended, leaving trade unions and their leaders open to criminal and civil liability, a brutal tool used by the Government to suppress trade union activity. There was no agreed timetable for the finalization of the Prisons Amendment Bill, and prison staff was still denied the right to organize and to bargain collectively. Defying the ILO tripartite high-level mission recommendations, the Government refused to issue a decree or proclamation explicitly nullifying all of the provisions of the Proclamation of 1973. The speaker dismissed the findings of the coroner’s report as wanting and speculative and requested the Committee to assist the Government in setting up an independent inquest into the death of Mr Sipho Jele. The Public Order Act of 1963 continued to be used by the Government to suppress trade union activities in the country, including during the 12 to 15 April 2011 demonstrations and, more recently, on 14 May 2011 in relation to a trade union workshop. He noted with concern the statement made by the Government representative concerning set and agreed time frames with various institutions to address the violations and questioned the seriousness of this commitment undertaken before the Committee. Finally, he called for the Committee to retain its conclusions on Swaziland in a special paragraph of its report and to ask the Governing Body, in November 2011, to consider setting up a Commission of Inquiry on the issues at stake.

The Employer member of Swaziland noted the significant progress on this case since last year: (i) the provisions of the Industrial Relations Act had been amended and had received royal assent; (ii) the National Steering Committee on Social Dialogue had been launched in July 2010 and had been meeting on a monthly basis, sometimes in the presence of Ministers, a protocol for social dialogue had been established, and a study tour to the National Economic Development and Labour Council (NEDLAC) in South Africa was scheduled (she thanked the ILO Office in Pretoria for the support provided with several of the abovementioned points); (iii) the ILO tripartite high-level mission had highlighted the issues to be addressed, which the Government should endeavour to resolve as a matter of urgency; (iv) the coroner’s report on the death of a protester who had been arrested on 1 May 2010 had been communicated to the ILO, and the 2011 May Day celebrations had not been tainted by violent incidents (she applauded the maturity displayed by the police force on that day and congratulated the workers for the formation of the Trade Union Congress of Swaziland which was a positive development); and (v) the ILO Office in Pretoria had been requested to provide expert advice on the provisions of the Public Order Act of 1963 and to conduct a workshop with the police, government officials, workers and employers on how to manage protest actions in the future. Having noted these positive developments, she condemned in the strongest terms the frequent dawn raids by the police targeted at union leaders against whom no charges were brought, the invasion of lawful trade union meetings by the police and the latter’s growing tendency to interfere with lawful protest actions. As regards the status of the Proclamation of 1973, this matter should be addressed in a different forum as it did not fall within the purview of the tripartite structure. She expressed her concern at the extremely slow process of aligning national legislation with the provisions of the Constitution. In conclusion, drawing the attention of the Committee to the very difficult economic situation currently faced by Swaziland and recalling the significant progress made in relation to the issues raised by the Committee of Experts, she asked the Conference Committee not to include the conclusions concerning Swaziland in a special paragraph of its report, but to strongly encourage the Government to finalize the outstanding report.

The Government member of Hungary, speaking on behalf of the Governments of Member States of the European Union (EU) attending the Conference, as well as the candidate countries (Turkey, Croatia, The former Yugoslav Republic of Macedonia, Montenegro and Iceland), potential candidate countries (Albania and Bosnia and Herzegovina), Norway, the Republic of Moldova, and Switzerland, recalled that the human rights situation in Swaziland in general, and the lack of compliance with the Convention in particular, was a long-lasting case that had been discussed by the Committee several times. She shared her deep concern about allegations of Government-sponsored actions against trade union activities and dismissal of workers who had taken part in lawful actions and exercised their right to participate in peaceful strikes, including the disruption of the 2010 May Day demonstrations and the arrest and death in custody of a participant. Taking note of the comments of the Committee of Experts as well as the steps taken so far to amend the legislation, she urged the Government, with the assistance of the ILO, to bring its legislation into conformity with the Convention, preferably in a tripartite manner, and to ensure its effective enforcement. Issues remained to be addressed, among which the right of certain groups of workers to organize and to take lawful industrial actions. She called on the Government to provide detailed information regarding the reported acts of violence against trade union activists and participants in lawful and peaceful strikes.

The Worker member of Nigeria, recalling the history of repression of trade unionists by military governments in his country, expressed solidarity with the situation of Swazi workers. The legislation negatively affected the rights of trade unionists, and the Government still showed open disdain for processes that could help reform those laws. Thus, the Proclamation of 1973 was still in force, although the 2005 Constitution was supposedly in operation, and had continued to close democratic spaces including for trade unions and workers. The Suppression of Terrorism Act, 2008 had become, consciously, a tool for the Government to harass, raid and detain trade union members and leaders and to legitimize the disruption of trade union activities by police and security agents. The Public Order Act, 1963 was still being used by the police to harass workers, their families, neighbours and communities, and to undertake dawn raids and detain trade union leaders to prevent their participation in planned protest marches. Such treatment had been experienced by Mr Dlamini, President of the Swaziland Federation of Trade Unions (SFTU); Mr Kunene, President of the Swaziland Federation of Labour; Ms Mazibuko, President of the Swaziland National Association of Teachers; Mr Ncongwane, Secretary-General of the Swaziland Federation of Labour; and other leaders. Workers continued to be routinely and tacitly labelled as terrorists, and their activities continued to be disrupted, even after the inclusion of the Committee’s conclusions in a special paragraph of its report and the ILO tripartite high-level mission. The speaker expressed the strong conviction that a Commission of Inquiry would help establish the truth in terms of the status of legislation and the violations in practice of the workers’ right to organize.

The Government member of Zimbabwe, having followed closely the Government’s statement and in light of the submitted written information, noted the Government’s eagerness to implement the recommendations of the ILO tripartite high-level mission. He called on the ILO to extend more technical assistance to the Government with a view to enabling it to fully implement these recommendations.

The Worker member of Denmark observed that despite the ILO tripartite high-level mission, the Government had yet to demonstrate progress towards compliance with the Convention. Since 1973, the Government had ruled the country through the use of force, brutality and the absence of the rule of law and of social dialogue. There was a long tradition of trade union repression and, despite the Government’s promises, the situation had not improved. Highlighting the gravity and extent of the violations and the fact that the harassment, arrest and detention of trade union leaders had simply been triggered by their exercise of democratic rights, he indicated that those violations had a disturbing effect on wages and working conditions in every sector of the economy, including export. Poor rights and labour standards were used by some governments as a way to attract investments. In particular, labour standards violations might be used to encourage foreign direct investment, especially inside EPZs, where fiscal and legal exemptions were granted to enterprises. The EU was, together with South Africa, the largest trading partner of Swaziland whose main export to European countries was sugar. While evoking the fact that European workers were also consumers, he emphasized the importance of remembering that this sweet-tasting product was produced in the shadow of workers’ rights violations. The speaker hoped that European countries would draw the obvious conclusions from the lack of progress with respect to democracy and human rights in Swaziland. Given that ratification of and compliance with labour standards was a necessary precondition for sustainable development, governments and leaders in Europe needed to investigate the continued violations of fundamental workers’ rights in that country. Finally, he hoped that the EU would withdraw the preferential trade arrangements enjoyed by Swaziland at present if national laws were not brought into line with ILO standards, and that African countries would also take action against these violations.

The Employer member of South Africa declared that individuals were the products but not the prisoners of their past and were thus free to craft a new future. The progress made was encouraging, inter alia, the approval of minimum services for sanitary workers and the clear statement of the Government concerning the hierarchical superiority of the Constitution as compared to the 1973 Proclamation. According to South Africa’s experience, genuine social dialogue was essential to build democracy, enable the exercise of fundamental human rights, resolve social tensions, lay the basis for durable social dialogue institutions and create an environment conducive to business prosperity. The speaker was pleased to recommend to the social partners of Swaziland to undertake a visit to NEDLAC. The Government should create the environment for social dialogue, end the arrests of union and civil society members, eliminate laws limiting freedom of association and ensure access to information. Emphasizing the need for the Government to acknowledge the importance of social dialogue, he expressed support for all future efforts to address the issues raised in this Committee and called for the full commitment of all partners and the international community.

The Worker member of South Africa, recalling that this case had been discussed for several years, was concerned that it might become a perennial stigma before the Committee. Drastic measures were needed so as to bring the country towards a lasting solution, to ensure the end of impunity and unfulfilled promises and to prevent the accentuation of the crisis which had equally been felt by South African workers, not least because their own members had also been direct victims of Swazi police brutality. With reference to his country’s experience in seeking the achievement of social dialogue, the speaker indicated that Swaziland was currently facing a serious and protracted economic crisis. While security had been the only persistent expenditure increase despite growing poverty, workers were used as scapegoats by the regime, with looming massive retrenchments, pay cuts and reduction in social expenditure. Trade unions had become the targets of State brutality since the banning of political parties. He wished to record his disappointment with the failure of the Government to address the underlying causes of the crisis and called for more serious action to ensure that the necessary steps towards the fulfilment of its obligations were taken. The speaker concluded by supporting the call for further economic pressure and the inclusion of the conclusions of this case in a special paragraph of the Committee’s report.

The Government member of Namibia referred to the several consultations held between the ILO, its Office in Pretoria and the Government. He stated that the country’s openness and willingness to engage at the regional and international level, in order to address domestic issues, together with the progress made on the matters raised during the 99th Session of the ILC (June 2010), including the granting of the Royal Assent to the Industrial Relations (Amendment) Act of 2000, were commendable. The speaker encouraged the Government to show more commitment towards the safeguarding of workers’ rights, including the right to bargain collectively, and recommended the acceleration of the application of the Amendment Act. He also commended the Government on the institutionalization of social dialogue, which showed the existing positive engagement between the Government and the social partners. The monthly meetings held by the National Steering Committee on Social Dialogue, since February 2010, indicated that a lot had been done, in order to ensure meaningful and effective social dialogue on labour issues. The speaker concluded by calling on the ILO to provide the necessary technical assistance in order to address any shortcomings with regard to the Suppression of Terrorism Act of 2008, while also calling upon the international community to render the necessary support to the tripartite process.

The Government member of Lesotho noted the measures taken by the Government to implement the recommendations of the ILO tripartite high-level mission and commended the Government for its efforts in this regard. The social partners should continue to work together harmoniously to finalize the implementation of the recommendations and to accelerate the finding of solutions to the outstanding issues. She called on the international community, and on the ILO in particular, to continue to assist the Government in its endeavours, stressing that the experienced delays could be due to capacity limitations at the national level.

The Worker member of Guinea, based on the experience of Guinean trade unions of freedom of association breaches, highlighted the serious violations of freedom of association that had occurred in Swaziland since the death in detention in 2010 of Mr Sipho Jele, following his arrest during the May Day celebrations. On 6 September 2010, during a peaceful meeting of activists supporting democracy, 50 persons, including trade union activists from Swaziland and delegates from the Congress of South African Trade Unions (COSATU), had been arrested by the police. The activists from Swaziland had been released and the South African activists had been immediately expelled. On 12 April 2011, the police and the army had violently repressed peaceful demonstrations and arrested hundreds of demonstrators, including eight trade union leaders. Mr Maxwell Dlamini, President of the National Union of Students of Swaziland, had been arrested and tortured by the police even before those peaceful demonstrations; he had been obliged, together with his fellow accused, to sign a declaration recognizing the possession of explosives and had been refused bail and access to his lawyer, as well as the right to pass his exams. The speaker emphasized the need to drop the charges against Mr Dlamini, to guarantee his physical integrity and to order his immediate release. The speaker hoped that the Committee would duly take into account such facts when drafting its conclusions.

The Government member of Mozambique stated that Swaziland was a friendly neighbouring country, and he therefore understood its political and labour problems. Dialogue should be frank and open, and the Government’s efforts should be encouraged. The country should continue developing so as to be able to promote development in the region as a result. It was to be hoped that the Government would have the opportunity to engage in dialogue with the social partners and would continue moving forward, with technical assistance from the ILO.

The Government representative emphasized that substantial progress had been made in a short period of time to address the recommendations of the ILO tripartite high-level mission. In addition to the indications given in his opening statement, the speaker affirmed the Government’s commitment to addressing all issues, including those reported as works in progress, such as the review of the Prisons (Amendment) Bill and the Public Services Bill. The Government would also address issues relating to the King’s Proclamation of 1973 and the Public Order Act of 1963, despite the complexity involved. It was hoped that the ILO would continue to provide technical assistance to address the outstanding issues, and assistance would also be sought from other organizations, such as the UNDP and the EU. In conclusion, the speaker reiterated that the Government was fully committed to addressing the challenges faced in a meaningful way, to ensure compliance with the Convention.

The Employer members disagreed with the representative of the Government that substantial progress had been made. However, some small and incremental changes had occurred. The Committee’s conclusions should address the root causes of the issues in the country. There was no meaningful social dialogue process, and the National Steering Committee on Social Dialogue did not constitute a sufficient response. A robust institutionalized social dialogue process need not be entirely at the national level, but could occur at different parts in the governmental structure. Moreover, the Committee’s conclusions should list all the existent statutory gaps and gaps in practice. Both the legislative and civil liberties issues needed to be meaningfully addressed and expedient time frames were required in this regard. Lastly, ILO technical assistance, on an ongoing basis, was essential in this respect.

The Worker members underlined that the situation in Swaziland had been worrying for many years due to the harassment and persecution of trade unionists, numerous acts which contravened fundamental provisions of the Convention, and the lack of will shown by the Government. The Government should put an end to acts of violence against trade unionists, repression of trade union activities and the denial of human rights. Furthermore, the events that had occurred during the commemoration of May Day 2010 should form the subject of an independent investigation. The Government should carry out the legislative reforms recommended by the Committee of Experts and the high-level tripartite mission. In particular, amendments should be made to the Industrial Relations Act, the Public Order Act and the Prisons Act, and the Proclamation of a State of Emergency and the Suppression of Terrorism Act should be repealed. More particularly, the Government should create the conditions needed for significant and sustainable social dialogue. It should also be observed that the situation had barely changed, despite assistance and recommendations from the ILO. Consequently, the Government should submit, before the next session of the Committee of Experts, information allowing that Committee to assess whether significant progress had been made. If it had not, a complaint could be brought under article 26 of the Constitution. In conclusion, the Worker members requested that the Committee’s conclusions on the case be included in a special paragraph of its report.

Conclusions

The Committee took note of the written and oral information provided by the Government representative and the discussion that followed.

The Committee took note of the Government representative’s statement that, following the high-level tripartite mission which visited the country in October 2010, a number of steps had been taken by the Government. In particular, the Industrial Relations Act was amended in accordance with the requests of the Committee of Experts and came into force on 15 November 2010. The coroner’s report into the death of Mr Sipho Jele had been shared with the ILO and the workers’ and employers’ federations. In addition, the National Social Dialogue structure was now fully functional and had been meeting on a monthly basis. In addition, it was agreed that a prison bill had to be submitted to the Labour Advisory Board for consideration. As regards the outstanding questions in relation to the 2008 Suppression of Terrorism Act and the 1963 Public Order Act, he stated that his Government was awaiting ILO feedback and expert advice on the matters that were affecting the application of the Convention. The 1973 King’s Proclamation had been discussed in the Steering Committee on Social Dialogue and the question of the compliance of constitutional provisions with the Convention had been placed on the agenda for the Steering Committee’s July meeting. As regards police intervention in protest actions, he stated that while a number of demonstrations over recent months had been peaceful, unfortunately one planned protest coincided with other groups advocating for regime change and the Government was therefore obliged to ensure the safety and security of the nation and its people. The Committee further noted the detailed written information provided which indicated the status of each of the recommendations of the high-level tripartite mission and the steps taken or envisaged.

The Committee recalled that it had discussed the question of the application of the Convention in Swaziland for many years and that it had placed its conclusions in a special paragraph in 2009 and 2010. The Committee welcomed the visit of the high-level tripartite mission to the country in October 2010, as well as the subsequent legislative changes as requested by the Committee of Experts and other plans to address policy concerns and civil liberty issues that had been raised. It deeply regretted, however, that this progress did not appear to be transposed into the practice in the country and that, as long as certain legislative texts restricting freedom of association and basic civil liberties remained in force, compliance with the Convention could not be assured. In particular, the Committee deplored the continuing allegations of arrest and detention following peaceful protest actions, and regretted to be obliged once again to recall the importance it attached to the full respect of rights and 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 could only develop in a climate free from violence, threats or fear.

The Committee firmly called upon the Government to intensify its efforts to institutionalize social dialogue and anchor genuine social dialogue through durable institutions at various levels of the Government, which could only be assured in a climate where democracy reigned and fundamental human rights were fully guaranteed. It urged the Government, in full consultation with the social partners and with the ongoing technical assistance of the ILO, to establish time frames for addressing all issues on an expedited basis. In this regard, it requested the Government to elaborate a roadmap for the implementation of the long called-for measures:

– to ensure that the 1973 King’s Proclamation had no practical effect;

– to amend the 1963 Public Order Act so that legitimate and peaceful trade union activities could take place without interference;

– to avail itself of ILO assistance in training the police and drafting guidelines to ensure that their actions did not violate the fundamental rights consecrated in the Convention;

– to ensure, including through necessary amendment, that the 2008 Suppression of Terrorism Act may not be invoked as a cover-up to suppress trade union activities;

– to place the Public Service Bill before the Social Dialogue Steering Committee to ensure full tripartite debate prior to adoption;

– to consult the Social Dialogue Steering Committee on the proposed amendments to ensure the right to organize to prison officers, as well as the outstanding matters in the Industrial Relations Act; and

– to establish an effective system of labour inspection and effective enforcement mechanisms, including an independent judiciary.

The Committee expressed the firm hope that significant progress would be made on these matters by the end of the year and that the Committee of Experts and this Committee would be in a position to note significant and sustainable progress in this regard.

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