Cas individuel (CAS) - Discussion : 1999, Publication : 87ème session CIT (1999)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Eswatini (Ratification: 1978)

A Government representative indicated that Swaziland supported the principles that the International Labour Organization stood for, including all the mechanisms that it had put in place to pursue its mandate. His Government was also aware of the obligations that went with its membership of the International Labour Organization, which included taking part in the formulation of and compliance with international labour standards.

He recalled that Swaziland appeared under the paragraph of special cases until June 1998 when, because of progress made in the reformulation of a consensus Industrial Relations Bill, that effort was recognized during the last meeting of this Committee in June 1998. The Government representative made an undertaking that the industrial relations Bill would be passed if possible before Parliament was dissolved later in 1998, thus allaying expressed fears that the Bill would be left in limbo. The Government representative had further indicated that even if Parliament did dissolve, there could be other legal procedures put in place to ensure progress in this regard. The Government representative was pleased to report this year that the Cabinet of Swaziland had debated the Bill, having placed it on top of its priorities, which resulted in the passage and publication of the Industrial Relations Bill No. 13 of 1998 on 5 August 1998. When the Bill was finally approved by the Cabinet, it essentially did not depart from the thematic and philosophical background characterizing the draft which had been submitted by the Labour Advisory Board to the Minister for Enterprise and Employment for his consideration.

The Government representative nevertheless pointed out that as part of the democratic processes of the country, the term of office for the Sixth Parliament of Swaziland had come to an end in August 1998, thereby necessitating that Parliament be dissolved so as to give way to fresh elections. This happened at a time when the Bill was ready for tabling in that legislative body and, in the circumstances, the Bill was submitted for consideration by the Council of Ministers, which was the legislative body that could pass any legislation in the absence of Parliament. The Council of Ministers debated that Bill at length after which, in November 1998, the Prime Minister issued a public statement explaining that when considering the Bill, the Council of Ministers had concluded that due to the importance of the Bill, it had to be considered and passed by a representative Parliament as against the 16-member Council of Ministers. Thus the Bill was deferred to await the new Parliament. After the elections, and soon after the commencement of its business, Parliament made the Bill its priority, such that when the House of Assembly completed the Appropriation Bill, 1999, on 23 April 1999, the Industrial Relations Bill was immediately tabled on 12 May 1999. On 17 May 1999 the House of Assembly agreed that the Bill would be processed for consideration by the Committee of the Full Parliamentary House which started its work in earnest on 24 May 1999, and so far had progressed very well, having gone through and passed more than 30 sections of the Bill already.

The Government representative believed that, considering the few minor changes that had been made by Parliament so far, even if there were any changes introduced, they were not going to be changes that would contradict provisions which were based on the international labour standards which his country had ratified. Furthermore, while he appreciated that it had taken the country longer than hoped to pass a new industrial relations act, he did not believe that this should be equated to a no-progress situation.

Regarding the fear that both the Public Order Act of 1963 and Proclamation No. 12 of 1973 could be used against organizations exercising their bona fide rights as enshrined in ILO Conventions, he pointed out that the Industrial Relations Bill presently being debated by Parliament would adequately address this fear.

The speaker stressed that good progress was being made towards stable and mature labour relations practices in the country. All the social partners were learning how to play their roles so as to effectively promote workers' rights. Where any party went out of line, the industrial court was there to protect the other party (or parties). For example, government employees had recently and successfully taken their employer (the Government) to court over a certain disagreement and the Government had accepted the court ruling. With the passage of the Industrial Relations Bill, labour relations would mature to an extent that all social partners would understand their responsibilities and how those respective responsibilities factored into the overall national and global initiatives.

In conclusion, the speaker reaffirmed that the Industrial Relations Bill no longer represented the sole interests of a particular component of the tripartite formation. Once again he reaffirmed his Government's support for the ILO's objectives and indicated that it would do everything to observe its obligations.

The Worker members pointed out that Swaziland had become a regular customer in this Committee over the last four years for violating Convention No. 87 in both law and in practice. The Committee on Freedom of Association also continued to examine the follow-up to the complaint against the Government of Swaziland by the ICFTU in 1996. During the discussions in this Committee in June 1997, when in fact this case was mentioned in a special paragraph of the report, the Government gave a firm promise to amend the 1996 Industrial Relations Act by August of that year. Not only did it break that promise, but the Act remains in force today. The Act perpetuates restrictions on trade union rights from the 1980 Industrial Relations Act and seriously violates the right to organize and to strike in many respects, and including imposing penal sanctions for legitimate trade union activities, allowing the Labour Commissioner to refuse to register a union if one already exists in the sector, banning federations from calling rallies or mass meetings, and prohibiting a federation or any of its officers from causing, or initiating, the cessation or slow down of work or economic activity upon punishment of imprisonment.

They recalled that in June 1998, the Government was urged to take urgent measures to introduce a newly drafted Bill into Parliament in order to amend the 1996 Act. It was urged to do so before Parliament was dissolved for elections. An amendment Bill had been prepared by a national tripartite committee with the technical assistance of the ILO, yet the Government did nothing. Instead, in July last year, shortly after the June Conference, press reports said that the Government was threatening to pull out of the ILO because the ILO had criticized it for violating basic trade union rights and civil liberties. Harassment of the Swaziland Federation of Trade Unions, the SFTU, and its leaders had not abated. In October 1998, the Commissioner of Labour suspended the SFTU for one month and threatened to deregister it, because the union had not submitted an annual financial report to the authorities -- yet the accounts were in the process of being audited because the SFTU had changed its financial year to end on 30 September. During the same month, the former treasurer of the SFTU, Mxolisi Mbata, died as a result of police brutality in February 1997 after the police had broken up an SFTU general council meeting on the eve of a national stay away. All the executive members had been forced to go to the police station, including the SFTU treasurer, a wheelchair user, who was thrown from his chair and forced to crawl to the police station. They were all locked in a room full of tear gas, until the next day, when they were beaten up and interrogated.

In November, instead of submitting amendments to the 1996 Industrial Relations Act to Parliament, the Government found time to decree the Swazi Administrative Order, known as the Chiefs Bill. This, in fact, amounted to forced labour and enabled village chiefs to order citizens to provide services, namely to weed their fields, under penalty of imprisonment or a fine for denying an order. During the same month, the SFTU General Secretary, Jan Sithole, and another SFTU official, Donald Dlamini, and two others were arrested. They were later released, except Jan Sithole, who was held incommunicado until the next day. The police said that the arrests were in connection with a bomb blast some weeks earlier, although the SFTU had thoroughly condemned it at the time. An official from the SFTU transport workers' union, Patricia Mamba, was arrested later in November when the police raided the union's offices and confiscated equipment. She was not allowed to see a lawyer.

The harassment and intimidation went on in 1999 and the SFTU President, Richard Nxumalo, and the Vice-President, Eliot Mkhatshwa, were arrested and detained on several occasions. Jan Sithole's family received anonymous and threatening telephone calls. On 12 January the Deputy General Secretary, Barbara Dlamini, and the Assistant General Secretary, Zodwa Nkhonta, were arrested and detained for several hours. In March, during collective bargaining negotiations between civil servants, nurses and teachers and the Government, the Minister for the Public Service called a press conference and announced that everyone who wanted a pay increase, should go to his office and sign a form. They would then receive the money. In this way he flagrantly circumvented the union's recognition agreements. This action was roundly condemned in the Industrial Court which ruled fairly and squarely in favour of the unions. In fact the Court said that the Government "had subverted collective bargaining and breached its duty to bargain in good faith". When the three public sector associations tried to hold a protest march, the police announced that they would use everything in their power to make sure that the march did not take place. The 1973 Decree on meetings and demonstrations was used to stop the march from going ahead, despite the fact that the Government has stated on several occasions in this very Committee that the law was of no relevance to trade union organizations. Marching workers were also brutally beaten by police in riot gear. Furthermore, the Worker members stated that the 1973 Decree was used to prevent group submissions being made to the sham Constitutional Review Commission, which was set up in 1996. Only individual submissions could be made, and, owing to a recent decision of the Government, all submissions had now to be made "in camera". In April, the Swazi Parliament called for the General Secretary of the SFTU, Jan Sithole, and the President, Richard Nxumalo, to be deported, on the false allegation that they were not Swazis. This very same argument had been used four or five years ago to intimidate the SFTU leaders.

Finally, as the Minister told this Committee, just before this year's ILO Conference, on 12 May the Government submitted the Industrial Relations Amendment Bill to Parliament. The Worker members indicated that Parliament had now begun to amend the Bill, and they were concerned that a satisfactory piece of legislation might once again be brought into conflict with the Convention. Parliament had announced that it would not rush the Bill because the SFTU boycotted the 1998 elections. Fortunately, a parliamentary motion to defer the Bill to a select committee for review, failed.

The Worker members then pointed out that the industrial relations climate in Swaziland continued to be far from harmonious. The Government had broken its promises to this Committee on several occasions. Both the 1973 Decree and the 1963 Public Order Act remained in force, and had been, and were used, to suppress legitimate trade union activities. The Industrial Relations Act was still in force and the Bill in Parliament, which was agreed upon by the social partners and the ILO, was now being amended.

They recalled that in the conclusions last year, this Committee requested the Government to establish an independent inquiry into the 1995 abduction of Jan Sithole and the 1996 killing of a child, Noxolo Mdluli, during a demonstration. This also has not been done. They, therefore, reiterated the conclusions of this Committee in June 1998, and requested the Government to report progress to the Committee of Experts. The Government had to apply the Convention in both law and practice, and fully respect civil liberties. It had to cease harassment, threats, malicious arrests, intimidation and victimization of trade union leaders.

In conclusion, in the alarming and frustrating circumstances which continued to exist in Swaziland, the Worker members appealed to the ILO to send another high-level direct contacts mission, to follow-up on the 1996 mission. The Workers' group believed that such a mission would be timely, and looked forward to hearing the Government accept this proposal with good will.

The Employer members stated that this case had been discussed several times by the Conference Committee and that a direct contacts mission had taken place in 1996. It related to numerous discrepancies between the 1996 Industrial Relations Act (IRA) and the provisions of the Convention. A national tripartite committee had been established and had agreed upon amendments to be taken to bring the national legislation into conformity with the principles enshrined in the Convention. The lack of detailed information to the Committee, as to the content of this Bill, was of no importance as long as the social partners and Parliament had agreed on the amendments to the legislation. The Employer members noted that the 1973 Decree and the 1963 Act concerning mass actions could result in a disturbance of the peace. Apparently, these provisions had been used in the past to suppress legitimate trade union activities. The Employer members recalled the 1998 conclusions on the case in which the Government had been urged to adopt the Bill to amend the Labour Relations Act before Parliament was dissolved. However, a new Parliament had been installed before this could take place. In this respect they noted the indication of the Government representative according to which the Bill had been submitted to Parliament in May 1999. In conclusion, the Government should be urged to intensify its efforts with respect to the adoption of its legislation which would amend all provisions contrary to those of the Convention. Moreover, the Government should provide full particulars in order to enable the Conference Committee to examine the case again if necessary.

The Worker member of Swaziland reviewed the background of this case as described in Case No. 1884, which was brought before the Committee on Freedom of Association. Following the ILO direct contacts mission, which took place after complaints were raised by workers, the Committee had concluded that the Industrial Relations Act of 1996 was incompatible with the principle of freedom of association and should be amended, giving consideration to the proposals of the Tripartite Labour Advisory Board. The Committee also noted that section 12 of the 1973 Decree, restricting the rights of organizations to hold meetings and peaceful demonstrations, should be repealed. It asked the Government to immediately institute independent inquiries into the death of a 16-year old schoolgirl allegedly shot and killed by the police during a peaceful demonstration, as well as into the abduction of the SFTU Secretary-General, so that the guilty parties could be brought to justice. Further, the Government was requested to ensure that the Public Order Act of 1963 was not used to ban strikes or to oppress legitimate and peaceful strike action. While the Government had promised to address these concerns, there were no concrete results to date. Instead, there were only continued violations, complacency and new decrees that further eroded human dignity and social justice.

He recalled that the Government had made promises to the Committee last year and in certain formal meetings with high-level ILO officials that the Bill would be adopted before Parliament was dissolved. He noted the Government representative's promise, that, even if Parliament were dissolved, the Council of Ministers had a mandate to enact the Bill in the absence of Parliament. Moreover, the Government had promised Swazilanders that the Bill would be given priority immediately following the debate on the budget. None of these undertakings had been fulfilled. In fact, the Bill was only presented to Parliament on 12 May 1999. Moreover, parliamentarians indicated that they would not rush the debate on this Bill, questioning why they should worry about a workers' Bill when workers had boycotted elections held in October 1998.

He made reference to numerous acts of harassment of union leaders that had taken place during 1997 and 1998. This harassment included police raids of union offices and the homes of union leaders, often without search warrants. A number of the incidents described also involved physical violence and threats against the union officers.

Reference was also made to workers' attempts to celebrate May Day. The local government of the City of Manzini had denied workers permission to conduct their celebration on government property. Their celebration was subsequently held on the premises of a private company. Nevertheless, when workers whistled during the celebrations, presumably to express their excitement, the Government and elders threatened to impose criminal sanctions on the workers.

He considered certain Swaziland legislation to be in conflict with the Convention, describing the so-called Constitutional Review Commission (CRC) as non-democratic and non-inclusive with regard to membership and acceptance of submissions. He cited the Media Council Bill, which restricted the right to free expression and free journalism, and the 1973 Decree withdrawing the protection of the Bill of Rights.

He pointed out that the 1973 Decree was regarded as the supreme law of the country. This Decree had usurped the Swaziland Constitution, including the Bill of Rights guaranteed in that instrument, including freedom of expression, association and assembly. In 1996 and 1998, the Committee of Experts had advised the Government that the Swaziland Administration Order of 1950 was not in conformity with the Convention. On 13 November 1998, the Government enacted an order repealing the 1950 legislation. However, he stated that the 1998 Order was worse than the previous legislation it had repealed. He described the 1998 Order as draconian and maintained that it was intended to exacerbate fear and oppression. He stated that the 1998 Order violated basic trade union rights, pointing out that it permitted local chiefs to introduce forced labour and servitude and impose penalties on citizens for non-compliance. The penalties that chiefs could impose included fines, imprisonment, demolition of structures, eviction without compensation and attachment and sale of citizens' property in the event that they failed to pay the fines imposed. The Order also denied citizens the right to representation before the chief's court and provided that no other court had jurisdiction to set aside the chief's orders. He indicated that these "kangaroo" courts were not acceptable and should not be allowed. In his view, the Government clearly wanted to leave the ILO with the impression that the new Industrial Relations Act would bring Swaziland legislation into conformity with the Convention. However, while the other legislation mentioned was still in effect, any new legislation adopted would continue to be undermined. He indicated that, while the Government was making promises to the Committee at the international level, national laws were being promulgated that undermined those promises. He pointed out that Swaziland had ratified ILO Conventions and was, therefore, internationally accountable with regard to the practical application of those Conventions. He, therefore, called for the Government to bring its legislation into conformity with Convention No. 87 and implement its provisions in law and practice.

The Employer member of Swaziland joined the previous speakers in expressing his regret at the delays in adoption of the Bill. However, he maintained that he still believed progress was being made. He noted that the Bill had gone to Parliament in less than two weeks and believed that the Bill would in fact become law by the end of the year. The amendments proposed so far did not materially affect the agreements made with the social partners. Recognizing that the Government may not have performed well in the eyes of the ILO in the past, he nevertheless expressed his view that the Government needed to be encouraged at this time. He pointed out that it would not be helpful to lambast the Government representative. Instead, he urged the Committee to send a message asking the Government to speed up the adoption of the proposed Bill.

The Worker member of the United States expressed his full support of the comments made by the Worker members, as well as by the Worker member of Swaziland. He noted that the AFL-CIO had submitted a petition to the US Trade Representative's Office, requesting that certain trade privileges currently enjoyed by Swaziland under the US Generalized System of Preferences (GSP) programme be suspended due to its systematic violation of workers' rights. The petition had indicated that the Government's enactment of the draft labour law was the primary measure that should be used to determine whether Swaziland was taking steps to respect basic worker rights and whether it should, therefore, retain its GSP privileges. Given the assurances of the Government representative last year, it was anticipated that the new labour law would now be in place. He expressed his regret that this had not occurred and that the Government had displayed a lack of urgency in introducing the legislation in Parliament. Accordingly, the AFL-CIO would submit supplementary information to the US Government expressing its disappointment at the lack of progress in this regard and renewing its request that Swaziland's GSP privileges be suspended due to its systematic violation of worker rights.

The Worker member of South Africa recalling the strong political, economic, social and cultural ties existing between his country and Swaziland, which justified that the developments in the latter be followed very closely, supported the views expressed by the Worker members. He took note of the information provided by the Government and the commitments made to bring labour legislation in line with the provisions of the Convention. He observed, with some scepticism, that these statements were the same as those made by previous labour ministers over the past five years, without any noticeable practical progress. He insisted on the fact that the extent to which a country complied with the provisions of the Convention could be said to be a measure of how it respected civil liberties, including and in particular, freedom of association. He insisted on the importance that the 1996 Industrial Relations Act, the 1973 Decree and the 1963 Public Order be amended and/or repealed.

The Employer member of South Africa welcomed the Minister's report that the Industrial Relations Bill was presently before Parliament and expressed his appreciation of the Minister's personal efforts to expedite the passage of the Bill. The drafting of this Bill by a tripartite committee with the assistance from the International Labour Office was an important step in bringing labour law in Swaziland into conformity with international standards. He regretted that the Government had been unable to secure the adoption of the Bill before the dissolution of the Parliament last year, as urged by the Committee of Experts and this Committee. However, until this Bill had been adopted and promulgated the present case could not be regarded as having been brought to a successful conclusion. He noted, with concern, however, that the alignment of Swaziland's laws with its international obligations, did not appear to enjoy a particularly high priority or urgency. Reports in the Swaziland press indicated that at least some degree of delay in the legislative process was apparent. As recently as 15 May 1999, a report was published which referred to statements by Members of Parliament that this issue was not pushed because the unions did not participate in the elections last year. This report, as well as a recent report of calls by a Member of Parliament for the deportation of the President and founder of the Swaziland Federation of Trade Unions, were not conducive to a climate in which an expeditious resolution of this matter could be found. The speaker noted, however, that progress was always welcome and he acknowledged that since last year's discussion there had been some progress, but this Committee would not yet record a satisfactory outcome.

The Government representative thanked the members of the Committee for their comments. Taking note of the issues raised, he indicated that his Government was making all efforts to ensure that progress was made. It was willing and prepared to sit down with the social partners to resolve these issues. He indicated that the concerns raised by the Employer member of Swaziland had been referred to the Labour Advisory Board but that, since the Board's report had not yet been received, it could not yet determine the best manner in which to proceed. With regard to the issue raised by the Worker member of Swaziland regarding whistling during the May Day celebrations, he indicated that he did not expect the Committee to understand the full implications of this incident, but that he hoped that the social partners could resolve this issue in Swaziland. He reiterated his appreciation for the concerns raised and assured the Committee that he was doing everything possible to proceed with the adoption of the Bill.

The Worker members appreciated that the Government was attempting to move forward in the direction recommended. However, they requested the Government representative to respond to the comments raised regarding the appropriateness of a direct contacts mission.

Responding to the query of the Worker members, the Government representative of Swaziland indicated that, as a Government, Swaziland had not yet seen the need for a high-level contacts mission. It had extended an invitation to the ILO to visit Swaziland; however, if the Committee concluded that it was necessary for a high-level ILO mission to come to Swaziland, the Government would abide by that decision.

The Employer members could not accept the proposal by the Worker members for a direct contacts mission as the parties concerned had already agreed to introduce changes into the legislation and all that remained was for them to be adopted by Parliament. The question of the mission could be discussed the following year in the light of developments in the case and the information to be given by the Committee of Experts. The Employer members did not object to the request by the Worker members that the present meeting of the Committee reaffirm its conclusions of the previous year on investigations relating to certain acts of violence.

The Committee noted the oral statement made by the Government representative and the discussions which took place thereafter. It recalled with concern that this case had been discussed by the Committee in 1996, 1997 and 1998. It recalled that the Committee of Experts had raised concerns about numerous provisions of the 1996 Industrial Relations Act which considerably limited the right of workers' organizations to organize their activities without interference from the public authorities in contravention of Articles 2 and 3 of the Convention. It regretted that no amendment regarding this legislation had yet been adopted. It further recalled with regret that the Committee of Experts had observed that the 1973 Decree on meetings and demonstrations placed important restrictions on the rights of organizations to hold meetings and peaceful demonstrations and that the 1963 Public Order Act had been used to hinder legitimate trade union activities. Last year the Committee had welcomed the Government's indication that a new Industrial Relations Bill had been drafted, in consultation with the social partners and with the assistance of the ILO, with a view to bringing legislation into conformity with the Convention. Deeply regretting that this new Bill had not been adopted before dissolution of Parliament, it once again strongly urged the Government to take the necessary steps to adopt this Bill and to ensure that the 1973 Decree and the 1963 Public Order Act did not interfere with the rights of workers' organizations to organize their administration and activities and to formulate their programmes. The Committee expressed the hope that the Government would establish independent inquiries into the abduction of the Secretary General of the Swaziland Federation of Trade Unions and the killing of a child during a demonstration. It asked the Government to fully respect the civil liberties essential to the implementation of the Convention. The Committee also urged the Government to supply a detailed report to the Committee of Experts on the concrete measures taken to ensure full conformity with the Convention, both in law and in practice.