Individual Case (CAS) - Discussion: 2014, Publication: 103rd ILC session (2014)

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



The Government provided the following written information.

During the 102nd Session of the International Labour Conference, the Conference Committee welcomed the information provided by the Government on the publication of the Industrial Relations (Amendment) Bill No. 14 of 2013 and noted the report that all outstanding legislative amendments would be attended to and the Government’s commitment to observe and implement Convention No. 87. The Government made an undertaking with time lines to demonstrate its commitment to take the issues forward, in consultation with the social partners. With regard to progress made to date, the Committee will recall that the year 2013 was the national election year for the Kingdom of Swaziland. National elections are, by any standard, a very challenging task for any government. Peace, stability and socio-economic development are, to a greater extent, a function of a successful election process. Parliament was dissolved on 31 July 2013 and Cabinet was fully constituted on 4 November 2013. Parliament was officially opened on 7 February 2014. This effectively reduced parliamentary activity by seven months and left the Government with five months to comply with its undertakings. This situation rendered it difficult for the Government to take the necessary legislative steps as there was no legislative authority to ensure that the amendments to the Industrial Relations Act (IRA) are passed into law. The Industrial Relations (Amendment) Bill No. 14 of 2013, for instance, was one of over 27 bills, which were before Parliament when it dissolved. However, the Government has shown its commitment and prioritized the Bill and it was the first Bill to be tabled after the opening of Parliament. The progress to date is set out below. With regard to the amendment of the Industrial Relations Act to allow for registration of federations, the current problems related to freedom of association emanate from a lacuna in the law regarding registration of federations. The Government has now tabled in Parliament an amendment bill which seeks to comprehensively provide for the registration of federations. Following the opening of Parliament on 7 February 2014, the Bill was prioritized and tabled as the first Bill (Industrial Relations (Amendment) Bill No. 1 of 2014). In terms of the Constitution of the Kingdom of Swaziland, 2005, bills are debated after the debates on the Appropriation Bill, which by its very nature is an urgent bill. However, in this case and in recognition of the urgency of the matter, the Bill was tabled before the Appropriation Bill. The Bill was quickly referred to the Parliamentary Portfolio Committee of the Ministry of Labour and Social Security. However, at the request of the Portfolio Committee the Bill was then withdrawn. According to the Committee, the withdrawal was necessitated by the intervention of the US Department of Trade, which expressed concern that the amendments of sections 40 and 97 of the Industrial Relations Act, as requested by the ILO, had not been included. Workers and employers also expressed their dissatisfaction with a number of sections of the Bill as it stood, and made written proposals for further refinement of the Bill, notwithstanding the fact that the Bill was published in May 2013 and no written objections were received from the social partners. The Portfolio Committee was of the strong view that rushing the Bill through the legislative process was futile if the end product would not serve its purpose. The Government noted the position of Parliament and the Bill was withdrawn from Parliament for further consultations as requested. It should be further noted that when the Bill was withdrawn from Parliament on 10 April 2014, the Labour Advisory Board, which should provide advice to the Minister, was no longer operational, following the withdrawal of workers from all tripartite structures. However, considering the importance and urgency of the Bill, negotiations are ongoing with the social partners. As a result of the consultations, on 19 May 2014, amendment proposals to section 97 were agreed upon; however, for section 40 of the Industrial Relations Act, employers and workers cannot agree. It is clear that broader consultation is required to unlock this deadlock. With regard to the operationalization of tripartite structures, following the undertaking to work together with social partners through General Notice No. 56 of 2013, the Government is pleased to report that, in all areas of action that require the involvement of social partners, especially legislative review activities, social partners were fully consulted and consultations went well and were held in full freedom. A lot of the progress achieved so far is credited to the smooth operation of all social dialogue structures. This is so, despite the fact that, on 28 March 2014, workers withdrew from all statutory bodies, citing dissatisfaction with the provisions of General Order No. 56 of 2013 and allegations of disruption of the Trade Union Congress of Swaziland (TUCOSWA) programmes and activities.

The Government accepted and hosted the high-level ILO fact-finding mission from 27 to 29 January 2014 (two months after the new administration came to office). The mission held consultations with the Government and its social partners to gather information on steps taken to assess progress made in all outstanding issues. In its report the mission urged the Government to: (a) fast-track the process of facilitating the adoption of the amendments into legislation, for the registration of the workers’ and employers’ federations by the end of April 2014 and to see their actual and immediate registration thereafter and in time for the ILC in June 2014; and (b) consult with the social partners and the ILO Pretoria Office to draw up a timetable by the end of April 2014 for the finalization of all other outstanding matters. With regard to progress made on other legislative amendments, as advised by the ILO, the Public Service Bill was indeed tabled before the National Social Dialogue Committee, which in turn referred it to the Labour Advisory Board for review. Since the Government’s report to the ILO, dated 28 October 2013 (stating that the Bill has been referred to the Labour Advisory Board) it has been reviewed by the Board and is now with the Ministry of Public Service for adoption. Thereafter it will be submitted to Cabinet for approval, publication and brought to Parliament for processing. By any standard of measure the Government has achieved tangible progress which should be noted and acknowledged as such. With respect to the determination of minimum services in sanitary services (to ensure that workers are not unduly denied their right to strike). This is so particularly in light of the fact that whereas the Government was requested to ensure a minimum service in sanitary services, the Government agreed with the social partners that sanitary services be removed altogether from the list of essential services as per the Industrial Relations Act. The Government wishes to reiterate that the King’s Proclamation to the Nation of 12 April 1973 is superseded by the Constitution which is now the supreme law of the land. As such, the exercise of all executive, judicial and legislative power and authority is guided by the Constitution and not at all by the 1973 Proclamation. The continued presence of this issue on the agenda of outstanding issues for Swaziland is unfair to the Government. Progress is being made on the issues concerning the 1963 Public Order Act. Swaziland, because of shortage of Legislative Drafters and expertise, approached the ILO to assist and the request was accepted. The ILO requested terms of reference and these were given to the ILO Regional Office in Pretoria on 17 April 2014. As soon as the legislative drafter has been identified and made available, the drafting process will commence. The Labour Advisory Board has finished debating the draft Correctional Services (Prison) Bill which, among other things, deals with the right to organize for prison staff, and has compiled a report of its views on the Bill. The Board’s comments will be sent to the ministry responsible for correctional services. Progress so far is that the draft Code of Good Practice for protest and industrial actions has been considered by the social partners and the police and technical assistance to facilitate the process of finalization and implementation of the Code was requested from the ILO in June 2013 and again in April 2014. It is hoped that the consultation between the Government and the ILO will continue. The Suppression of Terrorism (Amendment) Bill has been considered by Cabinet, published in a Government Gazette as Bill No. 18 of 2013 and awaits Parliamentary debate for passage into law.

In addition, before the Committee, a Government representative, with reference to the Committee of Experts’ request to ensure the registration of employers’ and workers’ federations, explained why the amendment bill of the Industrial Relations Act (IRA) had still not been passed. The bill had been drafted with the social partners’ input and issued on 23 May 2013. In line with the commitment made by the Government, the bill had been tabled in Parliament in June 2013. Progress had then been stalled, however, because Parliament was involved in debating six key election bills at the time, and had not had time to include the IRA amendment bill on its agenda before its dissolution. Following the reopening of Parliament, the bill had been given priority, and had been rapidly referred to the competent parliamentary committee. However, it had subsequently been withdrawn at the request of the parliamentary committee due to concerns expressed by another country as well as by the Swazi social partners. When the bill had been withdrawn from Parliament on 10 April 2014, the Labour Advisory Board was no longer operational. Due to the importance and urgency of the bill, however, negotiations with the social partners were currently under way. As a result of the ongoing consultations, consensus had been reached on 19 May 2014 regarding part of the new bill, but employers and workers still did not agree on one amendment; broader consultation was required to resolve the matter. The Government had accepted the proposed high-level ILO fact-finding mission, which it had hosted from 27 to 29 January 2014. During the mission, the Government had requested the ILO’s technical assistance with regard to outstanding matters; the logistics of that assistance were being organized. In the context of the Committee of Experts’ request for concrete information on progress with regard to various legislative texts, she explained that, since the Government’s report to the ILO of 28 October 2013, it had begun processing the Public Service Bill, which would be submitted to Parliament for deliberation. With regard to the need to determine a minimum level of sanitary services to ensure that workers were not unduly denied their right to strike, the Government had agreed with the social partners to remove sanitary services from the list of essential services, as per the IRA. The 1973 Proclamation had been superseded and made irrelevant by the Constitution, which guaranteed freedom of association for all in specific terms. Its continued presence on the Committee of Experts’ list of outstanding issues was unfair to the Government, and it should be removed. The Government representative said that much progress had been made since the ILO fact-finding mission, and requested an extension of the deadline for meeting the requests of the Committee of Experts. If an extension was not granted, there would potentially be massive trade and job losses, threatening the country’s stability. She reiterated the Government’s request for ILO technical assistance with regard to, inter alia: validation of the Code of Good Practice; the drafting of the Public Order Bill; and the determination of best practices on the issue of the right to organize for correctional services staff and the matter of defining trade unions’ civil and criminal liability in the IRA.

The Employer members appreciated the information provided by the Government regarding efforts made to bring law and practice in compliance with the Convention, as well as the Government’s willingness to accept ILO technical assistance. They encouraged the Government to continue to cooperate with the ILO Office in Pretoria. In light of the seriousness of this longstanding case, they expressed their surprise at the Government representative’s view that the case should no longer be examined by the Committee. During the discussion of the present case in 2013, the Employer members had pointed out, as regards the Committee of Experts’ request relating to the right to strike in sanitary services, that Convention No. 87 did not include the right to strike and that, in view of the lack of consensus, the Committee of Experts should refrain from requesting the Government to amend the IRA in this regard. In its 2013 conclusions, the Committee: (i) strongly urged the Government to immediately take the necessary steps to ensure that the social partners’ views were duly taken into account in the finalization of the IRA amendment bill and that it would be adopted without delay; (ii) expected that this action would enable all the social partners in the country to be recognized and registered under the law, in full conformity with the Convention; (iii) in the meantime, expected that the tripartite structures in the country would effectively function with the full participation of TUCOSWA, the Federation of Swaziland Employers and Chamber of Commerce (FSE&CC), and the Federation of the Swaziland Business Community (FESBC) and that the Government would guarantee that these organizations could exercise their rights under the Convention; (iv) urged the Government to conduct certain activities to ensure that progress was made within the framework of the social dialogue mechanisms in the country in relation to the other pending matters; (v) urged the Government to ensure full respect for freedom of association for all workers’ and employers’ organizations; and (vi) called on the Government to accept a high-level ILO fact-finding mission and requested that this information, as well as a detailed report, be transmitted to the Committee of Experts for examination at its next meeting.

In its 2013 observation, the Committee of Experts: (i) noted the Government’s indication that the tripartite structures in the country were functioning with the full participation of the federations of employers and workers (FSE&CC, FESBC and TUCOSWA); (ii) noted with regret the Government’s indication that the IRA amendment bill, approved by Cabinet, could not be tabled to Parliament due to other pressing parliamentary issues; (iii) observed with deep regret that TUCOSWA was still not registered and urged the Government to ensure that the necessary steps were taken for the registration without delay of TUCOSWA and the other workers’ and employers’ federations affected; and (iv) firmly trusted that the Government would report in the near future on concrete progress made on the Committee’s long-standing requests concerning amendments to several laws, such as the Public Service Bill, the Industrial Relations Act, the 1973 Proclamation and the 1963 Public Order Act. In light of the above, the Employer members: (i) looked forward to receiving the Committee of Experts’ review of the information collected during the 2014 high-level mission which would hopefully indicate that concrete and tangible measures had been taken; (ii) recommended that the Government follow a fast-track process to facilitate the adoption of amendments to the legislation concerning the registration of employers’ and workers’ federations by the end of 2014; and to ensure that they were registered immediately thereafter; (iii) noted that the present Committee would not deal in its conclusions with any issue related to the right to strike as there was no consensus that Convention No. 87 included the right to strike; and (iv) highlighted their concern about the lack of tangible progress to date and requested the Government to draw up, in consultation with the social partners, a timetable on the finalization of the outstanding matters, which would signal the Government’s commitment to compliance with the Convention.

The Worker members emphasized that the Committee had noted every year since 2009 that the Government was not complying with the Convention and still appeared not to realize that the ILO constituents expected results. In June 2013, in order to avoid having the present case included in a special paragraph of the Committee’s report, the Government had signed an agreement in which it undertook to adopt a number of time-bound measures. None of those commitments had been honoured, either with regard to legislative matters, such as the finalization of the bill amending the IRA, or with regard to the registration of TUCOSWA. Moreover, that lack of progress had been confirmed by the high-level ILO fact-finding mission which had visited the country in January 2014. The Government had continued to repress trade union activity, to arrest and imprison trade unionists and to prevent the registration of trade unions by invoking laws that did not comply with the Convention and which it had undertaken to amend. TUCOSWA had been established in January 2012 and had received legal recognition from the Ministry of Labour. When TUCOSWA had announced in April 2012 that it would boycott the 2013 legislative elections, the Government had revoked its registration on the grounds that the IRA only applied to “organizations” and not to “federations”. Furthermore, the Amalgamated Trade Union of Swaziland (ATUSWA), which was affiliated to TUCOSWA, had applied for registration in September 2013 and was still awaiting a reply. TUCOSWA had filed an appeal with the High Court claiming that the refusal to register it as a federation was unconstitutional. But after the union’s lawyer (Mr Maseko) had been arrested by the authorities on 17 March 2014, the hearing initially scheduled for 19 March 2014 had been postponed. Mr Maseko had initially been released on the order of a judge, who had then been arrested in turn, and he had subsequently been re-arrested and imprisoned. At the present time he was still in prison, after being accused of obstructing the course of justice for questioning the independence of the national judiciary in a newspaper article. The Secretary-General of TUCOSWA (Mr Ncongwane), who had been wrongly accused of instigating an illegal demonstration, had also been arrested in September 2013 and placed under house arrest. The legal assistant of the Swaziland Transport and Allied Workers Union (Mr Thwala) had been imprisoned for a year, under the Road Traffic Act and the Public Order Act, for taking part in a strike. The police and security forces continued to disrupt trade union activities, especially those of TUCOSWA, by preventing or curtailing demonstrations, and had prevented an international delegation of the International Trade Union Confederation (ITUC), which had come to collect testimonies from Swazi workers, from doing its work by confronting its members and dispersing meetings.

With regard to the legislative issues, the Worker members emphasized that the current legislation placed severe restrictions on the right to freedom of association. The IRA, the interpretation of which formed the basis of legal arguments for refusing to register trade unions and imposing civil and criminal liability on trade unionists, was still in force. Even though the amendment bill had been adopted in 2013, freedom of association was still limited since the draft conferred absolute power on the Labour Commissioner with respect to the registration of trade unions. The Public Order Act, which conferred extensive powers on the police, applied to trade unions in practice even though they were excluded from its scope. In that respect, a 2011 ILO report had recommended replacing the Act with another law clearly establishing the procedure for requests to organize public gatherings. The unions had been clamouring for revision of that legislation. Regarding the Suppression of Terrorism Act, the amendments submitted to Parliament for consideration in February 2014 had still not been examined. The Government also refused to repeal Decree No. 2 of the King’s Proclamation banning political parties and concentrating power in the hands of the King. The Correctional Services (Prison) Bill, which had been submitted to the Labour Advisory Board in 2012 and recognized employees’ right to establish associations – but not trade unions – provided for strict controls by the Commissioner of Correctional Services and, by already establishing the name of the association in question, suggested that a trade union monopoly was being established in the sector. Lastly, the Public Service Bill, which had been under discussion since 2005, contained restrictions on freedom of expression and on civil servants’ right to collective bargaining. The Worker members regretted that the Government had not followed up on any of the Committee of Experts’ observations or recommendations and that it had failed to honour the written commitments it had given at the previous session of the Conference. Deploring the Government’s unacceptable conduct, they strongly condemned the serious and constant repression, in law and in practice, of the workers in Swaziland and expressed the hope that the Government would take the present opportunity to honour its obligations and international commitments.

The Worker member of Swaziland said that the violation of the Convention by the Government had reached deplorable levels. By refusing to register TUCOSWA, the only national federation of trade unions in the country, it had stalled the prospect of any meaningful and productive social dialogue. It had deliberately misled the Committee by setting unrealistic deadlines for the revision of various pieces of legislation, not one of which had been met. Although it had agreed before the Committee to allow TUCOSWA the full exercise of its rights under the Convention and the terms of the IRA, the Government continued to brutally prevent TUCOSWA from conducting its activities. With regard to the IRA, the Government had tabled an amendment bill in July 2013 that excluded proposals made by the social partners. TUCOSWA had been pushing for the speedy amendment of various acts, especially the IRA, when Parliament was dissolved before it had been able to consider the IRA amendment bill. Although TUCOSWA had notified the Government in January 2014 that the bill was not the product of the Labour Advisory Board, the Government had tabled it again in February 2014, only to then unilaterally withdraw it, without any explanation to the social partners. This illustrated a complete absence of political will on the part of the Government to register TUCOSWA. It was also important to note that the so-called lacuna in the IRA, which necessitated its amendment in the first place, was a politically motivated concept: if the IRA was to be interpreted strictly in accordance with the Convention, it would necessarily guarantee the same rights to federations that it guaranteed to unions. TUCOSWA had made its contributions to the amendments of the following pieces of legislation by mid-February 2014: the Public Service Bill, the Correctional Services Bill, the Code of Good Practice for protest and industrial action and the Suppression of Terrorism Act. The social partners had not been given an opportunity to discuss the Public Order Bill, as the Government had alleged that its amendment was still being drafted by the Attorney-General’s Office, and that the person responsible for the drafting had died. In June 2013, the Government had reiterated its position with regard to the 1973 Proclamation, namely that it would not institute legal proceedings to obtain a definitive ruling from the highest court on the Proclamation’s status. Thus, the practical effects of the Proclamation remained in force. Social dialogue structures, having been disrupted in April 2012, had later been restored by General Notice No. 56, which provided that “all processes and programmes whose progress was affected by the issue of registration of federations shall be continued in line with principles of tripartism and shall be recognized as legitimate and all decisions made or resolutions reached shall be binding on the tripartite partners as if they had been registered in terms of the Industrial Relations Act, 2000 …”. However, the Government had continued to disrupt the activities of TUCOSWA, and a letter to the federation from the Attorney-General dated 4 September 2013 had stated that the General Notice did not, in fact, grant any rights that the IRA provided for. In light of this, TUCOSWA had requested clarification of the Government’s position regarding its participation in social dialogue tripartite structures. Receiving the promised response a month late, TUCOSWA decided to withdraw from all legislative tripartite forums. Its withdrawal had not obstructed any legislative process, however, as it had already submitted its proposals for amendments to the legislation long before. Following the 2013 ILC, the Government had continued to disrupt TUCOSWA’s activities as follows: among other incidents, on 22 July 2013, the Government had violently brought an end to a meeting of the Manzini shop stewards local council; and on 5 September 2013, security forces had arrested and detained ITUC panellists who were to hear testimonies from textile workers on violations of their rights. Furthrmore, the Government refused to register ATUSWA to date without any justification. In light of the above, the Government must be encouraged, in the strongest possible terms, to honour its obligations under the Convention for industrial and economic peace to prevail in Swaziland.

The Employer member of Swaziland indicated that in January 2014 the employers had met the ILO high-level mission which had visited the country to assess the progress achieved with respect to the commitments made at the 2013 ILC Conference. He recognized that his country had not been able to fully adhere to those commitments. In this regard, he stated that it was the employers’ view, in line with the recommendations of the high-level mission, that the registration of the workers’ and employers’ federations enabling full legal recognition by all stakeholders would ensure speedy progress. The employers had therefore been actively engaging as social partners to enable progress in the adoption of the IRA amendment bill. Recalling the employers’ concerns raised with the high-level mission that the bill did not actually reflect the agreement reached by the social partners, he indicated that they had been addressed in the meantime and trusted that, if the bill was introduced in Parliament in its current form, it would be compliant with the requirements of the Convention. The only issue on which the employers and workers were not able to agree related to criminal and civil liability during protest actions. The employers’ proposal had been that such liability be removed from individuals and be placed on the federations, as body corporates, which did not exclude the liability of employers’ federations. It was the employers’ view that once the liability on individuals had been removed, the Committee’s concerns would have been addressed. He pointed out however that the employers remained open to advice on best practices in this respect so as to reach consensus by the social partners and move forward. Finally, he stated that, while his country had not been able to meet the deadlines, there was tangible evidence and desire of the social partners, indicating that these issues could be finalized once and for all. He therefore urged the Committee to provide guidance, allow time and assist the country in moving towards full compliance with the Convention. This would ensure that Swaziland did not lose out on any of the trade privileges with its international partners, a loss that would entail a negative impact on business as well as job losses. He requested the Committee to consider allowing the completion of processes already under way to address the current compliance issues, and expressed the employers’ commitment to unlock bottlenecks wherever possible.

The Government member of Namibia took note of the information provided by the Government. Fully understanding the complexity of the matter at hand as well as the current circumstances in Swaziland, her Government encouraged the Government of Swaziland to take all measures to address the comments raised by the Committee of Experts. The Government of Namibia also requested that the Government of Swaziland be allowed more time to work on the outstanding issues, taking into account the circumstances that had prevailed during the period when it was required to comply with the issues raised by the Committee of Experts. Lastly, her Government called upon the ILO to consider the Government of Swaziland’s request for technical assistance.

The Worker member of South Africa, speaking also on behalf of the Worker members of Angola, Botswana, Democratic Republic of the Congo, Lesotho, Malawi, Mauritius, Mozambique, Namibia, Zambia and Zimbabwe, stated that the Swazi Ministry of Labour had described the formation of TUCOSWA in January 2012 as an “important milestone in the history of industrial relations”. However, when TUCOSWA had started to call for genuine democratic elections, it had been deregistered and its activities prohibited. The Government had considered, suddenly, that there was no law that allowed for the registration of union federations – a right guaranteed by the Convention. This decision had been confirmed by the industrial court on 26 February 2013. When TUCOSWA went to the High Court to challenge the decision, its lawyer had been arrested days before the scheduled hearing. The Government was clearly aware that it was in violation of the Convention, and its statements were no longer credible. Although it had issued General Notice No. 56, with the stated aim of ensuring that union federations were able to exercise their rights and participate in tripartite bodies, this had not yielded any results to date. The Government did indeed permit TUCOSWA to participate in tripartite bodies, but its opinion on important topics, such as the reform of the IRA, was largely ignored. Moreover, the Government had intensified its attacks on workers’ rights. Unions in numerous sectors had decided to merge in September 2013 to form ATUSWA. Prior to its launching congress, the union had requested registration, which had been denied up to the present, with the Government putting forward various reasons that were far removed from normal practice. Even during the era of apartheid in South Africa, trade unions and federations had been registered and free to operate. Trade union rights were human rights.

The Government member of Greece, speaking on behalf of the European Union (EU) and its Member States, as well as Turkey, The former Yugoslav Republic of Macedonia, Montenegro, Iceland, Serbia, Albania, Norway and the Republic of Moldova, stated that the EU attached importance to the rights of freedom of expression, opinion, assembly and association, without which democracy could not exist. She wished to recall the commitment made by Swaziland under the Cotonou Agreement – the framework for Swaziland's cooperation with the EU – to respect democracy, the rule of law and human rights principles which included freedom of association. Compliance with the Convention was essential in this respect. The case had been discussed by the Committee several times over the past decade. The EU was very concerned by recent developments in Swaziland that infringed on the rights of freedom of expression, opinion, assembly and association. Considering that the arrest of political activists and trade unionists on 1 May 2014, as well as the arrest and detention of human rights lawyer, Thulani Maseko and journalist Bheki Makhubu, constituted clear infringements, the EU called on the Government to respect these rights at all times. Noting that the Committee of Experts had requested the Government to take all necessary steps, including legislative measures, to proceed with the registration of TUCOSWA, the EU asked the Government to urgently amend the IRA so as to provide for that federation's registration and to urgently take forward this legislation, ensuring that it was in line with the Convention. Noting also that the Committee of Experts had highlighted several legal acts for their non-conformity with the Convention, the EU urged the Government to make sure that its legislation was fully compliant with the Convention. While appreciating that a high-level ILO fact-finding mission had been able to visit Swaziland in 2014, the EU expressed the hope that its results would be taken into consideration to produce tangible progress in all pending issues. It called on the Government to cooperate with the ILO and to respond to the requests of the Committee of Experts. The EU also urged the Government to avail itself of ILO technical assistance and expressed its continued readiness to cooperate with the Government to promote the implementation of fundamental rights.

The Worker member of Angola expressed grave concern that the Government had failed to meet its commitments made in 2013. In Swaziland, workers were harassed and intimidated with impunity. In March 2013, police had violently put an end to a meeting held on the anniversary of the founding of TUCOSWA, the only federation that brought together unions from all sectors in Swaziland. TUCOSWA remained unregistered, against workers’ wishes and against international legal instruments that promoted and protected freedom of association and the right to organize. On 6 September 2013, police had abruptly ended a Global Inquiry Panel that had been organized by TUCOSWA with the aim of hearing workers’ testimonies about conditions of work in Swaziland. While this was happening, the offices of TUCOSWA were raided by the armed police. On 5 September 2013, the Royal Police had put the Secretary-General of TUCOSWA, Mr Ncongwane, under house arrest, allegedly for taking charge of logistical arrangements for the Global Inquiry Panel. On the same day, trade union officials and other delegates arriving in Swaziland for the event had been detained by police upon their arrival and instructed to leave the country the following day. The Government had withdrawn the IRA amendment bill from Parliament. This action made it clear that the Government had no intention of recognizing or registering workers’ and employers’ federations in line with the commitment it had made to the Committee in June 2013. In light of the lack of progress it had made, she requested that the Committee include Swaziland in a special paragraph of its General Report.

The Government member of Morocco thanked the Government representative for the information supplied in response to the Committee of Experts’ comments on the exercise of freedom of association, the registration of workers’ organizations and a number of parliamentary bills. The Convention was difficult to implement because of constantly evolving industrial relations and required the adoption of regulations and institutional measures. According to the Government, considerable progress had been made, particularly with regard to the IRA amendment bill, the Public Service Bill, amendments to the Suppression of Terrorism Act and the efforts to promote social dialogue and tripartite consultation. The adoption of those measures testified to the Government’s determination to bring national legislation and practice in line with the Convention. He therefore proposed that the Government’s efforts be endorsed and that it be given time to pursue those efforts and to address the issues that were still outstanding.

The Employer member of Zimbabwe expressed his solidarity with the Employer member of Swaziland. He acknowledged that the Government had not kept its word and still had to complete what it had undertaken to achieve. The Government representative had been very eloquent in presenting its accomplishments and the reasons for which other matters had not been addressed. The bottom line was, however, that the registration of workers’ and employers’ federations was critical – at present it was the workers’ federation that was denied registration, in the future it could be the employers’ federation. Moreover, the placing of criminal and civil liability on individuals had an intimidating effect. While acknowledging the unique circumstances of Swaziland, the speaker underlined that the Government had been aware of the requirements when joining the ILO and ratifying the Convention. According to an African saying, when two elephants fought, it was the grass that got hurt – this was to illustrate that the situation between the Government on the one side, and one or the other or both social partners on the other side, was negatively affecting the national economy and thus the well-being of the population. The conclusions of the Committee should therefore be unequivocal as to the need for the Government to honour its commitments and the Committee should expect no less.

The Government member of Zimbabwe urged the Government and its social partners to avail themselves of the ILO’s technical assistance in order to resolve the outstanding issues that had been raised by the Committee of Experts. It had been pleased to note that the Government of Swaziland was cooperating with the ILO supervisory bodies. The ILO was encouraged to continue supporting the efforts made by providing the much needed technical support. It was recalled that, if nurtured, social dialogue at the national level could provide a platform to collectively deal with socio-economic issues. Investing and strengthening social dialogue became one of the ILO’s entry points, in its endeavour to improve labour markets in member States.

The Worker member of the United Kingdom said that Swaziland’s failure to respect the Convention was long-standing. Freedom of association and trade union activity had been restricted both in law and in practice, often with severe and violent consequences for trade unionists. The Public Order Act and the Suppression of Terrorism Act were used to silence dissidence and in recent months the number of arrests of those criticizing the regime had increased. The King had proclaimed Swaziland a monarchical democracy. It was not, however, a democracy, as there was a ban on political parties, a restriction on political information and the people of Swaziland could not participate meaningfully in organized political activity. Legislative and judicial powers were all vested in the King which had been consolidated by the revised Constitution of 2005. The State encroached on all civil and political rights and freedoms. The fact that trade unionists were brought before the courts for breach of laws, such as the Public Order Act, was a breach of ILO standards. The judiciary was not independent. Two senior members of the justice system had been dismissed; the first for allegedly criticizing the King and the second for refusing to support the dismissal of his colleague. A high-level ILO mission had visited Swaziland but no changes to the law had been made. Trade and other agreements with partners, such as the European Union, required that respect for international commitments, including freedom of association and freedom of assembly and speech, were met.

The Government member of Botswana said that freedom of association and the right of workers and employers to organize were preconditions for meaningful social dialogue and collective bargaining. Countries voluntarily ratified Conventions that promoted these principles but, on occasion, circumstances arose that undermined intentions. Some progress had been made towards compliance with the Convention, including the drafting and tabling of the Industrial Relations (Amendment) Bill in Parliament. Although it had not been adopted, these efforts bore testimony to the Government’s commitment. Challenges had been encountered in the process of amending the Industrial Relations Act, which pointed to the need for capacity building to ensure effective social dialogue on a variety of matters, including the obligations arising from the Convention. It was hoped that collaboration with the ILO would assist Swaziland in overcoming the challenges it was facing in this regard. In the light of the meaningful efforts made by Swaziland, the speaker requested that it be granted additional time to complete its work.

The Worker member of the United States referred to the previous comments made by the Committee urging the Government to amend its legislation and to the high-level ILO fact-finding mission which had visited Swaziland in January 2014 which reported that no measurable progress had been made toward amending the problematic legislation. The speaker also referred to the African Growth and Opportunity Act which provided for the “protection of internationally recognized worker rights, including the right of association and the right to organize and bargain collectively”. Swaziland’s laws had to be amended by 15 May 2014 to ensure continued eligibility for trade benefits under the Act; another deadline that had not been respected. The speaker referred to some of the legislative issues raised by the ILO supervisory bodies over the past decade that had still not been resolved, including with regard to the Industrial Relations Act, the Public Order Act and the 1973 Proclamation. Prison staff were still legally excluded from the right to establish or join unions and a bill proposed in 2012 to address the issue was no longer being discussed. Moreover, the Government had recently re-introduced the Public Service Bill, prior to consultation with the social partners. If passed, this law would permit the termination of public sector workers for making political statements, limit the subjects public sector workers could negotiate, and provide that these workers had no access to grievance processes. In conclusion, there was much work needed for the Government to bring its labour laws into compliance with the Convention. The speaker therefore urged the Government to cooperate with the ILO in order to complete those reforms.

The Government member of South Sudan stated that the Government had shown its strong political will towards ensuring compliance with the Convention. However, due to circumstances beyond its control, such as the dissolution of Parliament in July 2013 which was reinstated in February 2014, the whole process was delayed. The Committee of Experts was called upon to take note of the progress made so far. In addition, the ILO was requested to provide its technical assistance to the Government, in order to speed up the legislative reform process undertaken. The speaker invited the Government to continue its negotiations with the social partners in order to prevent further delays.

The Worker member of Nigeria said that workers and citizens could not exercise their rights on freedom of association, assembly and participation in democratic processes. The Government had continued to wilfully and arbitrarily circumvent the application of the Convention and other similar instruments, thus failing to deliver on the promises it had made. There were a number of areas of concern. TUCOSWA, a legitimate trade union, was banned. The police and other state security agencies continued to harass and intimidate union leaders. Four workers had been arrested and detained for wearing T-shirts that allegedly belonged to a political party. A student, who had joined his parents and co-workers to celebrate May Day, was detained. Associating with workers was considered a serious crime in Swaziland. Trade union activists had been forcefully prevented from participating in legitimate trade union activities and TUCOSWA’s lawyer had been in detention for having expressed an opinion on the arrest of a trade unionist from one of TUCOSWA’s affiliates. The treatment received by TUCOSWA was in breach of Swaziland’s Constitution.

The Government member of the United States stated that the situation of freedom of association and trade union rights in Swaziland was a matter of grave concern to the United States. The situation had been followed closely for several years, particularly in the context of Swaziland’s continued eligibility for trade preferences under the African Growth and Opportunity Act. The United States Government fully endorsed the recommendations of the ILO supervisory bodies regarding Swaziland’s application of the Convention, as well as the technical advice that the ILO had provided to the Government with a view to implementing those recommendations. Her Government was concerned by the lack of concrete, tangible progress to date; these issues had been pending for a very long time, some for over a decade. The speaker was pleased that the Government had accepted a high-level ILO fact-finding mission in January 2014. Nonetheless, she deeply regretted that TUCOSWA was still not registered. It was imperative that TUCOSWA be able to effectively exercise all of its trade union rights without interference or reprisal. It was equally important that employers’ organizations were registered and able to fully represent their members’ interests. Legislative omission that had resulted in the de-registration of workers’ and employers’ organizations, and the Government of Swaziland’s subsequent lack of meaningful recognition pursuant to its General Notice, had had serious consequences for genuine freedom of association and meaningful tripartite social dialogue in Swaziland. The speaker urged the Government to take the necessary measures to ensure that TUCOSWA and other workers’ and employers’ organizations were registered without further delay. The Government was also urged to take all of the measures recommended by the ILO supervisory bodies with regard to legislative amendments and their effective implementation. Moreover, she urged the Government to implement a Code of Good Practice for managing industrial and protest actions. In this regard, she called on the Government to cooperate closely with the ILO.

An observer representing the International Transport Workers’ Federation (ITF) indicated that in 2014, the ITF had sent a fact-finding mission to Swaziland to investigate anti-union measures taken by the authorities against the Swaziland Transport and Allied Workers’ Union (STAWU). In addition to the Public Order Act used to target trade unionists, including the STAWU, another law had also been used to that end. Five STAWU union leaders, including the Secretary-General, had been served notice of prosecution under the Road Traffic Act of 2007 for holding a union gathering in the airport car park. Although this law was supposed to cover offences on public highways, it had been applied to the airport car park – another way in which statutory instruments were creatively used to suppress unions in Swaziland. Furthermore, in 2014, the Civil Aviation Authority had submitted an application to the Government’s Essential Services Committee requesting that a range of airport services be classified as essential services. This would bring airport staff under specific legislation restricting their employment and trade union rights, and would be a step backwards in the application of the Convention. The speaker also referred to their visit of STAWU’s legal officer, Basil Thwala, in prison. He had been arrested following a demonstration in July 2012 and had been charged and convicted for offences under both the Road Traffic Act and the Public Order Act. Although he was initially granted bail, it was later revoked by the High Court of Swaziland allegedly on the ground that he had breached his bail conditions. No witnesses were called before the court to verify this allegation and Mr Thwala himself had not been in court when his bail was revoked. Mr Thwala was then sentenced to two years of imprisonment. Even though he had lodged an appeal two months after being convicted, his appeal, filed on a certificate of urgency, was never dealt with. Mr Thwala was released in 2014 after serving his full sentence. ITF’s mission had questioned the independence of the judiciary in both Mr Thwala’s case and that of the STAWU leaders. STAWU’s plight showed the Government’s non-compliance with the Convention. He urged the Government to amend the legal texts that had been subject to scrutiny. Moreover, the Government should be asked to report on the Road Traffic Act and its misuse aimed at targeting legitimate activities of the trade unionist.

The Government member of Egypt stated that the Government had taken a series of measures to fully implement the provisions of the Convention despite the difficulties the Government had faced, especially during the national elections which were held after the dissolution of Parliament in July 2013. These difficulties had delayed the adoption of legislative measures that would allow the provisions of the Convention to be implemented. The Government had demonstrated its full commitment to making the necessary amendments, particularly with regard to the registration of trade unions. In conclusion, the speaker asked the Committee to grant the Government additional time to enable it to take the necessary measures and bring national legislation in line with the requirements of the Convention. In this regard, he supported ILO technical assistance for the Government.

The Government representative thanked all the members of the Committee for their positive criticism and wished to assure the Committee that Swaziland was committed and was tirelessly working on the pending issues. Given the required time and technical assistance, the Government would be able to report tangible results at the Committee’s next meeting. In response to the issues raised during the discussion, the Government representative stated that all the relevant information had been provided with respect to the 1973 Proclamation and clarified that it was only on this specific issue that further examination and supervision did not appear to be required. With respect to the new allegations of non-compliance raised during the discussion, the Government representative asked that the normal process be used, namely that these complaints of non-compliance be channelled through the government structure in order to afford the Government the opportunity to provide information or a report on the new issues raised. Some of the issues raised had been a distortion of the facts. The speaker added that TUCOSWA was not banned in Swaziland and enjoyed the right to organize and to meet and the right of freedom of expression. TUCOSWA celebrated May Day in 2014 and had invited representatives of the Government to attend the celebration. This was proof that their relationship was not as it had been portrayed. With respect to the Bill amending the Industrial Relations Act (Bill No. 14 of 2013), it had not been the Government who had withdrawn the Bill from Parliament but a Parliamentary Committee. A bill could not be promulgated overnight and the Government therefore asked the Committee for some time in order to move forward with the process that had already started. The Government representative requested the ILO’s technical assistance to help resolve the pending issues and stated that the Government would report on solid results at the Committee’s next meeting.

The Employer members thanked the Government for the information submitted. Some measures had been taken but highlighted that there was a lack of concrete progress with regard to this case. They recalled that the Committee did not address the right to strike in this case as the employers did not agree that there was a right to strike recognized in the Convention. The Government was urged to implement in law and in practice real change that would see the Government’s legislation come into compliance with the Convention. Priority should be given to establishing a fast-track process to allow the immediate registration of workers’ and employers’ organizations and federations, including the immediate registration of TUCOSWA which had to be dealt with as a matter of urgency. Once organizations were registered, the Government could turn to consulting with the social partners in order to draw up a timetable to finalize the revision of the outstanding legal texts that had been discussed. Revision of legislation presented challenges but with the assistance of the ILO and in consultation with the social partners it would be possible to deal with those challenges. Given the Government’s willingness to achieve progress, the Employer members expected that the recommendations would be taken seriously and given priority.

The Worker members expressed the view that the evidence provided was irrefutable and proof enough of the systematic attacks on the workers’ right to establish and join trade unions freely. The Government was trying to prevent the creation of TUCOSWA and ATUSWA by refusing to register them and by prohibiting them from engaging in trade union activities. Freedom of movement and expression of the leaders and members of the unions was limited and they risked criminal charges and prison if they denounced the Government’s repressive tactics. The police and security forces had been watching the workers closely and, citing abusive legislation that the Government refused to change, had threatened to use force if they tried to assert their rights. On several occasions the Government had pledged to stick to a timetable of reforms, but had failed to do so. The ILO mission that had recently visited the country had not been able to record any progress. The Worker members felt that they could not allow the Government any more time and reiterated their demands: the Government must register TUCOSWA and ATUSWA immediately and ensure the full exercise of their rights under the Convention and national legislation, with particular reference to the IRA. The Government must release Thulani Maseko immediately and abandon the legal proceedings regarding his freedom of expression and legitimate trade union activities, and take urgent steps to institute an independent judiciary; the Government must provide the police and security forces with relevant information and hold them responsible for any violent intervention in peaceful and legitimate trade union activities; the Government must immediately amend the IRA, the Correctional Services (Prison) Act, the Public Service Act, the Suppression of Terrorism Act and the Public Order Act so as to bring them into line with the Convention; the Government must initiate judiciary procedures conducive to a definitive Supreme Court ruling on the status of the provisions of the 1973 Proclamation. Given that the Government was persisting in its ways, the Worker members would use all the facilities available to them under the ILO Constitution. Considering the seriousness of the case, the Government’s systematic refusal to act for the past ten years and the complete absence of progress, the Worker members were in favour of the Committee’s conclusions being included in a special paragraph.