Cas individuel (CAS) - Discussion : 2001, Publication : 89ème session CIT (2001)

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

A Government representative stated that during the visit of the ILO technical advisory mission to the country in November 2000, preliminary draft amendments to the Industrial Relations Act were prepared with the authorities. These amendments had received Royal Assent and had now entered into force. Moreover, the Committee of Experts had noted with satisfaction that a number of discrepancies between the legislation and the provisions of the Convention, which had been raised previously, had been satisfactorily addressed by the new Act. These issues were enumerated in the report of the Committee of Experts. His Government had tried to ensure that the recently adopted amendments reflected as closely as possible the advice of the ILO technical advisory mission. The Government representative then referred to the two remaining discrepancies between the Act and the Convention. With regard to the issue of the exclusion of the correctional services from the scope of the Act, the Government representative stressed that this had been deliberate since these services formed part and parcel of the armed forces in his country. This was also the situation in many other countries. With regard to the lengthy procedure to be followed before strike action could be taken legally, the speaker indicated that the period of time of 70 days mentioned in the report of the Committee of Experts was wrong. This period had been decreased from 70 days to 14 days. Concerning the issue of civil liability of federations, unions and individuals under the Act, he indicated that they were subject to civil liability only if they engaged in criminal activities during a protest action, as mentioned by the Committee of Experts. The Government representative wished that the Committee of Experts would examine at length the amendments adopted late last year. He also thanked the ILO for its assistance in ensuring that national legislation conformed to Convention No. 87.

The Worker members stated that this Committee was dealing with a Government which ruled by decree; believed in brute force and impunity as opposed to social dialogue; disregarded the rule of law; ruled under a state of emergency laws since 12 April 1973; was alien to voices of dissent; rewarded armed forces for brutalizing peaceable protesting citizens; had no respect for, but malicious interference with the judiciary. This was the sixth consecutive year since Swaziland had appeared on the agenda of this Committee in 1996. During the last six years, when recommendations were made, Swaziland agreed to make improvements but the reality was that each subsequent year there would be a fresh excuse at the expense of deteriorating human and trade union rights. In the last six years, there had been two major cases presented to the Committee on Freedom of Association against the Government of Swaziland (Cases Nos. 1884 and 2019) and other very important violations against trade unions occurred. The speaker then went on to explain in detail the broad content and aspirations of Convention No. 87. Freedom of association was about the right of organizations to function and organize their administration without interference; the right to protest and picket; the right to free expression, free speech and freedom of assembly; protection against acts of anti-union discrimination; protection against acts of interference; the right to freedom of movement; rights of due process; protection against arbitrary arrest and detention; and the right to demonstrate. However, even after the promulgation of the new Industrial Relations Act, 2000 a series of violations of human and trade union rights had occurred and included the closure of the Observer newspaper and the dismissal of union members at the government-owned television station. Between October and December 2000, union meetings had been banned by the Prime Minister. Trade union leaders were under 24-hour surveillance, were denied freedom of movement and were in detention during mass actions. Union leaders and activists were brutalized and trade union meetings were brutally dispersed, while prayer services summoned by workers' organizations and progressive elements were brutally dispersed and tear-gassed. The independent print media, the Nation and the Guardian had been banned. Charges had been brought against trade union leaders for having led and participated in a protest action. Trade union leaders' passports had been withdrawn. Disciplinary measures had been brought against trade union leaders who were civil servants for having participated in the peaceful demonstration of 13 and 14 November 2000. It was evident that while the enactment of the Industrial Relations Act seemed like a positive step, the Government was still using the state of emergency laws against the workers (section 12 of the 1973 Decree and the 1963 Public Order Act).

It was clear that, without the AFL-CIO, the American Government, and the threat of the suspension of privileges under the Generalized System of Preferences (GSP), no genuine changes would have ever been made. It was clear to the workers of Swaziland that without international solidarity and pressure, there would have been no political will within the Government to adhere to social justice as aspired by the ILO and the Declaration of Philadelphia. The ILO technical advisory mission had been given the impression that draft amendments in line with the Convention would be adopted. As soon as the United States Government removed the GSP threat, the Government reinforced the section on civil liability completely impeding the right to protest on socio-economic issues. The Government had no consideration for the rule of law, the Conventions it had ratified, the national legislation and fundamental human rights. This kind of government would never make positive steps unless it were under pressure. Before the Committee adopted a recommendation on this matter, it should first consider the following questions: First, were the dictates of the Convention applied in law and in practice in Swaziland? Second, could human and trade union rights exist under a state of emergency? Third, could a good and conforming labour law or any good law for that matter in any country supersede the Constitution? The answer was obviously no, but this was the case of the notorious and draconian Decree of 12 April 1973 which had usurped the Constitution and revoked the Bill of Rights and all civil liberties. As a result of this unfortunate situation, despite the merits of the new Industrial Relations Act, it could not be implemented since it contradicted the 28-year-old state of emergency decree. Although the Committee had always advised the Government not to apply section 12 of this Decree and the 1963 Public Order Act against workers' organizations, the Government had always failed to comply. The fundamental problem was the state of emergency decree which was the supreme law of Swaziland, so that it prevented any labour law compliant with the Convention from entering into force. On this basis, the Worker members proposed that a high-level ILO mission be sent to Swaziland to investigate, meet the social partners and assist them to establish a forum for social dialogue to address in particular the political concerns that unavoidably prevented workers from exercising their rights and civil liberties and enjoying freedom of association. Alongside the high level ILO mission, the Government should be assisted to make the necessary amendments to the Swazi administration order as advised by the Committee of Experts since 1989. The tripartite social partners should amend and refine all remaining discrepancies under the auspices of the Labour Advisory Board.

The Employer members indicated that this Committee had dealt with this case since the middle of the 1980s. Since 1996 this case had been dealt with on a yearly basis. The previous year a new Industrial Relations Act had been adopted which appeared to address the shortcomings of former legislation. In fact, the Employer members pointed out that this Act had been brought to the attention of this Committee the previous year. However, it had not commented thereon but had preferred to await the comments of the Committee of Experts in this regard since it had been their experience that new legislation often had shortcomings vis-à-vis the Convention. A technical advisory mission from the ILO had visited the country in November 2000 during which preliminary draft amendments to the Act were prepared. Royal assent had been given to the new Act and according to the Committee of Experts the issues raised by it had been satisfactorily amended. These issues concerned nine points which were listed in the report of the Committee of Experts and which had previously been the subject of its comments. These issues concerned considerable amendments to previous legislation. In this respect, Swaziland had been cited as a case of progress in paragraph 210 of the report of the Committee of Experts. This point should not be ignored by this Committee. Apart from this the report of the Committee of Experts addressed two other issues, the first of which regarded the denial of the right to organize of prison staff. Since the Government representative had explained that the prison staff formed an integral part of the armed forces of Swaziland, this exclusion could be considered to be justified. The Committee of Experts should therefore consider whether their exclusion from the scope of the Industrial Relations Act was legitimate. The second issue concerned the very long procedures (70 days) that were required before legal strike action could be taken. The Employer members were now informed by the Government representative that this had been reduced to 14 days. In any event, in the view of the Employer members the issue of the right to strike was simply not dealt with in Convention No. 87. Hence the details concerning the right to strike were not relevant. Regarding the issue of civil liability of federations, unions and their members, the Government representative had indicated that they were open to such liability only in the event of criminal acts committed by them, and not in the event of protest action undertaken by them. The Employer members indicated that the account given by the Government representative and that of the Worker members were completely different. The new information provided by the Government was not reflected in the report of the Committee of Experts. Moreover, the violations of the Convention referred to by the Worker members were not mentioned at all by the Committee of Experts. Hence the Employer members would await the comments of the Committee of Experts in this respect before making any pronouncements. In any event, in the view of the Employer members, a number of satisfactory legislative amendments had been carried out by the Government in line with the requirements of the Convention with ILO technical assistance and expertise.

The Worker members recalled that this was the sixth time this Committee was called to discuss the application of Convention No. 87 in law and in practice in Swaziland. Even though, at each consecutive session, the Government had committed its goodwill towards change, the practice, particularly with regard to human and trade union rights, was still not in conformity with the letter and spirit of Convention No. 87. The Worker members first of all wished to underline the two remaining areas of discrepancies in the Industrial Relations Act, 2000. The Act still excluded prison staff from its scope which was completely unacceptable under Article 2 of the Convention. The Worker members were also very concerned with the unacceptable limitation on the right to strike contained in the new legislation. Even if the new Act had amended the dispute settlement procedure which foresaw a 70-day delay before lawful strike action could be taken, they strongly denounced the fact that under the amended section 40 of the Act, the procedures required a delay of 32 days before peaceful protest action could be taken. Furthermore, two other elements needed to be recalled. First, the requirements for a strike ballot were so complex that they made strike action very difficult or even impossible. In this regard, the Worker members strongly disagreed with the Employer members that the Committee of Experts and the Committee on Freedom of Association were not competent to interpret a right to strike in Convention No. 87. Secondly, unions, federations and individuals were subjected to civil liability if involved in protest action, de facto infringing their rights and leading to prohibitive costs if they exercised their trade union rights. The Worker members had been pleased to learn at the end of last year that, following a technical advisory mission to the country, a number of discrepancies between the Swazi legislation and Convention No. 87 had been addressed during the Industrial Relations Act, 2000. Unfortunately, their hope that the new legislation would be conducive to a real change and a true recognition of the fundamental role of a free and independent trade union movement in Swaziland did not last long. A concrete example of this was reflected in the breaking up of a peaceful march of workers from all over the country on 7 November 2000 by road blocks and heavy artillery. Several union leaders were still waiting for a decision by the court on their peaceful protest action. They had been prosecuted by virtue of section 12 of the 1973 Decree and the 1963 Public Order Act which the Committee of Experts had previously commented on. To make things worse this incident had occurred after the promulgation of the new Act. This was why law and practice could not be separated. The role of this Committee was to examine the compliance with a Convention in law and practice. Hence, the Worker members requested that the current legislation be amended in order to remove the restrictions referred to above. Moreover, they requested that a high-level ILO mission, supported by ILO technical staff, visit the country and meet freely with the Government, trade unions and employers in order to engage the parties in meaningful social dialogue. There was no social dialogue taking place at this time and this should be recognized by the Committee as contrary to the spirit of cooperation claimed by the Government.

The Worker member of the United States underlined that the work of the ILO, especially its technical assistance and its standards enforcement machinery, were complemented quite effectively with the threat of economic sanctions by the United States to finally produce a long sought-after result of the ILO and this Committee regarding the case of Swaziland. However, not all of the legal changes needed to bring the law into compliance with Convention No. 87 had occurred. Some very important changes promised by the Government were rescinded at the last moment. He emphasized that according to the law, unions and persons involved in lawful protest actions and not criminal activity as alleged by the Government member, were subject to civil liability. These promises were not only made to the ILO but also to the United States Government and it was on the basis of these promises that the United States Government agreed to suspend its review of special trade privileges under its Generalized System of Preferences (GSP). This last-minute backing away from its commitments to the ILO was an act of bad faith on the part of the Swazi Government that revealed continued refusal by it to comply fully with its obligations under Convention No. 87. This attitude was confirmed by the continuing troubles experienced by the unions in exercising their freedom of association. He urged the Government to change its attitude and respect fully all provisions of Convention No. 87 both in law and practice. He wished to inform the Swazi Government that the American unions would be kept abreast of developments in Swaziland and would work closely with the United States Government to ensure that the commitments made by the Swazi Government were honoured. If this did not occur, the American unions would be ready to renew their request to suspend Swaziland's GSP trade privileges.

The Worker member of Austria stressed that the repression used against trade unionists in Swaziland must be stopped. The Government member had made two incorrect statements with regard to the Industrial Relations Act, 2000. Section 40 clearly stipulated what notice period was required before peaceful protest action could be taken. This was a lot more than the 14 days mentioned by the Government member. The second incorrect point concerned the issue of immunity for civil liability. It was clear that federations, unions and their members were open to civil liability in the event of their involvement in a demonstration. The Government had enacted a new law but was not at all serious about implementing it. The speaker called upon the autocratic regime in Swaziland to ensure that freedom of association and human rights were fully respected. He also urged this Committee to send an ILO mission to that country.

The Worker member of Denmark noted that the Nordic trade unions had been following the political and trade union situation in Swaziland for quite a few years, hardly believing that the country having ratified the Convention already in 1978 could neglect its obligations to such an extent. Some of the discrepancies between the legislation and the provisions of the Convention had now been addressed in the new Industrial Relations Act. However, these improvements did not convince them that trade union rights would no longer be violated. Through the years they had seen extreme examples of violations of human and trade union rights, and recent incidents referred to them by the trade unions convinced them that this case should be followed very closely. They were not sure that tripartite consultations would be practised, nor that the new labour legislation would be implemented. It should not be forgotten that Swaziland was still under a state of emergency which meant that the Government disregarded the rule of law whenever it found it necessary and suitable. It did so quite often and especially the trade unions and the media had become victims of this state of emergency. It was especially important to be aware of the discrepancies between the Industrial Relations Act and the requirements of the Convention. The most important issue concerned the right to strike which was now severely restricted. Complex procedures were required to be followed before strike action could take place. The Committee should also be aware of the hostility of the Government concerning the right of trade unions to hold meetings. The Prime Minister had announced that such meetings would be allowed under the condition that the police be present and no general policy discussions take place. Despite some positive signs, the situation of workers in Swaziland was so dramatic that the ILO should continue its pressure to remove the undemocratic procedures from the new Act and its supervision of the applications of the new legislation. The next step, especially in the light of the grave incidents which had taken place since this Committee had last met, should be to send a high-level ILO mission to Swaziland.

The Employer member of Swaziland believed that the Industrial Relations Act, 2000, largely complied with the requirements of Convention No. 87. Whatever discrepancies remained could reasonably be dealt with by the social partners in Swaziland provided there was a will to do so. What Swaziland needed from a forum such as this was a recommendation to the ILO to consider giving technical assistance to promote social dialogue in that country. The case before this Committee was a clear testimony that social dialogue was very weak in Swaziland. Condemnation of the country would not solve the problems of relationships in Swaziland. What was needed was assistance to enable the social partners to deal with their differences in a creative and a constructive manner.

The Government member of the United States recalled that her Government had followed this case closely for some time including on a bilateral basis in the context of trade preferences legislation and had actively encouraged the Government of Swaziland to avail itself of ILO assistance in amending its Industrial Relations Act in order to ensure compliance with the Convention. She welcomed the comments made by the Committee of Experts which noted that as a result of ILO technical assistance the Industrial Relations Act of June 2000 constituted a considerable improvement in safeguarding the ability under the law to form and join trade union organizations and for these organizations to carry out their activities. She also welcomed the fact that further amendments to the Industrial Relations Act had been prepared again with ILO assistance and approved by the King of Swaziland in late November 2000. These amendments appeared to address most of the remaining discrepancies commented on by the Committee of Experts, but the Committee would decide if that was indeed the case. She would also like to make it clear that her Government would continue to follow developments closely. She strongly urged the Government to continue to do its utmost to ensure with continued ILO assistance that the Industrial Relations Act and especially the way it was applied in practice was in full conformity with the letter and the spirit of the Convention.

The Government representative reiterated what he had previously stated. His Government had done everything possible to comply with the Convention. He requested the Worker member of Swaziland to clarify the situation and share information with his colleagues about the recent amendments he was aware of regarding the recent amendments not mentioned in the Committee of Experts' report such as the issue of civil liability, of federations, trade unions and their members, as well as that of the reduced length of time to be followed before strike action could be lawfully taken. He finally emphasized that a tripartite body already existed in Swaziland and all social partners could be involved in its work. Recently, the Prime Minister had initiated a Smart Partnership meeting for all social partners. However, if the Workers chose to ignore social dialogue in order to attempt to overthrow the Government, then the Government would only conceive this as political considerations and not genuine trade union activities.

The Worker members, responding to the statements of the Government representative, stated that it was clear that the Government's anti-trade union practices were continuing and were motivated, in part, by the recognition that the SFTU was the main democratic organization in the country. They had listened to the Government's promises, had seen the relevant legislation and heard the explanations of the Government representative to the Conference Committee. Nevertheless, the law and practice in Swaziland remained in violation of Convention No. 87. The Government had to demonstrate a genuine political will to address the grave situation in the country with regard to trade union rights. The Worker members clarified that it was for the purpose of ensuring respect for the fundamental rights of those nine civil service trade union leaders who had been summoned for disciplinary action for attending and participating in peaceful demonstrations that they requested the Committee to take action today. Moreover, it was for the sake of the six trade union leaders that were prisoners-in-waiting for participating and leading peaceful demonstrations that the Committee should ask the Government to take two necessary measures, to mark its first step in a positive direction. First, the Government should amend its current legislation to eliminate existing limitations on freedom of association. Second, a high-level mission, supported by ILO technical staff, should be permitted to visit the country and meet freely with the Government, trade unions and employers in order to promote meaningful social dialogue, and full observance of Convention No. 87.

The Employer members concurred with the initial statement made by the Worker members which did not distinguish between violations in the law and practice in Swaziland since what ultimately mattered was the practical impact. The Employer members had been saying this for 19 years. However, new facts could not be introduced to examine this case. The Conference Committee had never done this since it had always relied on the comments of the Committee of Experts. However, in this case the facts did not appear to equate with what the Committee of Experts had noted. The Employer members noted with astonishment that the Worker member of the United States had threatened that the United States would use trade measures to bring pressure to bear on Swaziland unless the Government took positive action. This was a new tactic, which the Employer members noted. A number of statements in the Committee had made reference to respecting principles of democracy. While the Employer members assumed that all members of the Committee would be in favour of establishing such principles in Swaziland, including the rule of law, free elections, the independence of the judiciary and perhaps even freedom of association, they noted that it was not the role of the ILO to promote democracy. The ILO was limited to examining elements covered by its Conventions and in this regard its terms of reference were clear. They considered that the Committee of Experts would have to look at the issue of the freedom of association rights of prison staff, to determine whether they could fairly be considered members of the armed forces, as this could affect their freedom of association rights. If, however, the issue involved the right to strike, then they considered that it could not be dealt with by the Conference Committee, as this point was not covered under Convention No. 87. The Employer members therefore requested that the issue of the right to strike not be included in the Committee's conclusions for reasons which they had often stated, namely that this issue was not within the competence of the ILO. However, the Employer members trusted that the Worker members would find a way to include this matter in a review system. Then, this matter could be addressed by the Committee of Experts and the Conference Committee, but not before.

The Committee noted the oral statement made by the Government representative and the discussions which took place thereafter. It noted with interest the adoption of the Industrial Relations Act, 2000, which had brought the national legislation into fuller conformity with the provisions of the Convention on some points previously raised by the Committee of Experts. It further noted the statement made by the Government representative concerning the amendments made to the Act in December 2000 following an ILO technical assistance mission to the country, which took place in November 2000. It recalled that it was for the Committee of Experts to examine the compatibility of these further amendments with the provisions of the Convention. The Committee also noted that the Committee of Experts had pointed out that discrepancies remained between the legislation and the Convention. The Committee therefore hoped that the Government would pursue its commitment to full social dialogue so as to redress any remaining obstacles to the application of the Convention in law as well as in practice. The Committee suggested in this regard that the Government consider the possibility of an ILO high-level mission to collect information on the practical application of the Convention and to assist in the development of meaningful social dialogue in the country. It expressed the firm hope that the Government would be in a position to indicate concrete progress made on the issues raised in its next report for examination by the Committee of Experts.