Cas individuel (CAS) - Discussion : 2005, Publication : 93ème session CIT (2005)

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

A Government representative said that his country was listed among the 25 countries whose delegates had been invited to supply information to the Conference Committee. In this respect, he expressed deep concern at the still unclear method of listing countries for discussion concerning the application of ratified Conventions adopted by the ILO. He recalled the statements made by certain delegates during the general discussion and called for a more fair and transparent system so that countries could be selected on the basis of scientific criteria that would render the process more just and clear to all delegations. In view of all the positive steps that had been taken to give effect to Convention No. 87, his Government had expected that at least a case of progress would have been recorded with respect to Swaziland.

He emphasized that, while Swaziland had appeared before the Committee on a number of occasions, the country had obviously taken significant steps to implement the Convention in practice, in consultation with the social partners and with the assistance of the ILO. As such, Swaziland had been able to build the necessary confidence with regard to freedom of association and the right to organize. However, he indicated that most of the allegations made in the Committee of Experts' observation were based on incorrect facts and a mistaken assessment of the situation, and should therefore be challenged.

Firstly, with respect to the comments of the Committee of Experts relating to the alleged death of a trade unionist during a protest march organized by Swazi labour federations on the occasion of a meeting of the Commonwealth countries in Mbabane in August 2003, he admitted that there had been an instance where violence had ensued during the protest, but he strongly denied that a trade unionist had died on that occasion. He explained that an agreement had been reached between the authorities and the organizers of the action with respect to the designated areas where it could be held, due to security reasons related to the presence of the Heads of State attending the Commonwealth meeting. Although the protest action had started peacefully, a confrontation had occurred when an attempt had been made to leave the designated area. However, he affirmed that no trade unionist had died and no such death had been reported by the media or by the leadership of the trade unions. His Government aligned itself fully with the view expressed by the Committee of Experts that, whenever a trade unionist died in a protest action, a commission of inquiry should be set up, and he invited the ILO, ICFTU and SFTU to take part in such a commission so that the country's name could be cleared.

Secondly, with respect to the exclusion of prison service staff from the scope of the Industrial Relations Act, he indicated that the prison service consisted of 1,300 employees. He assured the Committee that his Government had not remained indifferent to the comments made by the Committee of Experts on this issue in the past and that it had undertaken a critical analysis of the prison service in order to assess how best compliance with the obligations under the Convention could be achieved. Nevertheless, his Government had come to the conclusion that, in the context of Swaziland, as in the case of many other small developing countries, the prison service should in fact be considered as an "armed force" and did not therefore fall within the scope of the Act, in the same way as the police service and the army. Moreover, it should be noted that the staff in the prison service had not been disadvantaged in respect of wages and conditions of employment, especially when compared to other civil servants belonging to the Swaziland National Association of Civil Servants (SNACS), the Swaziland National Association of Teachers (SNAT) and the Swaziland National Nurses Association (SNA), because the outcome of the negotiations undertaken by these associations had to be applied to the entire civil service.

Thirdly, with respect to the application of section 40(13) of the Industrial Relations Act respecting charges against trade union leaders, he indicated that this section had been amended by the Industrial Relations Amendment Act, No. 8, of 2000, with the full participation of the social partners and in consultation with the ILO. Legal charges against trade union leaders could now only be brought in cases of criminal activities, and malicious and grossly negligent acts. This should therefore no longer be an issue and he wondered why it was still being raised by the Committee of Experts.

Fourthly, turning to the points raised in the Committee of Experts' observation with respect to the process and outcome of the drafting of the Constitution, he stated that the process had benefited from assistance from the Commonwealth and the European Union, and that the draft text would be reviewed by both Houses of Parliament in August 2005. He firmly believed that the draft Constitution would comply with the country's international obligations under the Convention. Part IV on fundamental rights and freedoms provided for: (a) freedom of conscience, expression and of peaceful assembly and association and movement; and (b) respect for the rights of workers. It was clear that a conscious decision had been taken to protect these rights in line with the Decent Work Agenda. The draft text of the Constitution would be made available to the Office and could be consulted on the Government's web site www.gov.sz .

Fifthly, he referred to the comments of the Committee of Experts on the length of time taken in attempting to settle a dispute before an organization could embark on a lawful strike action. He was pleased to report that his Government had relied on tripartite dialogue and ILO technical assistance to amend the Industrial Relations Act. The amendment would enter into force in August 2005. One of the highlights of the amendment was that it sought to cut drastically the dispute resolution period by encouraging the direct reporting of disputes to the Conciliation, Mediation and Arbitration Commission. He expressed the belief that reasonable flexibility should be afforded to the social partners to engage in meaningful dialogue and resolve their disputes amicably. If the tripartite partners still felt that the Act did not comply with the obligations concerning strike action, his Government would be pleased to work with them and the ILO to rectify the situation.

Finally, with respect to the allegations made concerning a Bill to regulate internal security, he stated that there was no record of such a Bill, although a proposal had been submitted in the past but had been abandoned four years ago. No such Bill was currently being discussed in Parliament.

In conclusion, he said that his Government was willing to work with the ILO to achieve the full compliance of its law and practice with the obligations under Convention No. 87.

The Worker members thanked the Government representative for his intervention and the information provided. The Committee was examining the case of Swaziland for the eighth time in 10 years. On several occasions, the Government had committed itself to achieve progress. However, even though some progress had indeed been achieved, the situation was very different in practice. The adoption in 2000 of the Industrial Relations Act had appeared to be a positive step. However, despite the adoption of the Act, the Government was still making use of laws on the state of emergency against workers and their organizations, namely the Public Order Act, 1963, and section 12 of the Decree of 1973 on trade union rights, which had repealed the Declaration of Rights and was contrary to all civil freedoms. Since 1973, the current Government of Swaziland had been running the country through the use of force, impunity, the lack of social dialogue, denial of the authority of the law, ignoring dissidents, brutality against citizens engaged in peaceful demonstrations and failure to respect the judicial authorities.

Once again, the Committee of Experts had referred to several serious violations of Convention No. 87. In the first place, the national legislation did not afford prison personnel the right to organize. In this respect, the Committee of Experts recalled that, under the terms of Article 2 of the Convention, workers, without distinction whatsoever, had the right to establish and join organizations of their own choosing without previous authorization. Once again, the Government had indicated that it planned to include the prison services within the scope of the Industrial Relations Act. Nevertheless, in view of its record, it was difficult to believe that it would keep its promise.

Secondly, the Committee of Experts had once again raised the issue of the length of the compulsory procedure for the settlement of disputes envisaged before strike action could be taken, which was too long and particularly intricate. A procedure of this nature was in violation of Article 3 of the Convention and was intended to discourage any strike action. It was clear that such provisions were unacceptable as they were in violation of fundamental human freedoms. The Government had once again indicated that it was planning to reduce the length of the procedure. However, once more, in view of its record, it was difficult to believe that it would keep its promises.

In the third place, with regard to the possibility envisaged in the Industrial Relations Act to take civil action against federations, trade unions and individuals who participated in protest actions, the Worker members said that such a procedure was a violation of their rights and might expose them to costs which would have the effect of dissuading them from exercising their trade union rights. In this respect, the Government had indicated that the issue of legal action had not arisen. However, it had not provided information on the application of the law in this regard.

Fourthly, the Committee of Experts had once again indicated that the Public Order Act, 1963, and section 12 of the 1973 Decree, abolishing trade union rights, still appeared to be in force. It had requested the Government to keep it informed of the procedure for the drafting of a national Constitution which would accord with international standards and would guarantee respect for trade union rights, and repeal the above Decree. However, the Government had not provided information on this subject.

In the fifth place, according to the information provided to the Office by the ICFTU, the police had dispersed a demonstration in August 2003, making use of violence, and a trade unionist had been killed. In this respect, the Committee of Experts had recalled that freedom of assembly was one of the fundamental trade union rights and that the authorities should refrain from any action likely to restrict this right. It had also called for the holding of an independent judicial inquiry into the case of a participant in the union demonstration who had been killed during the demonstration. It was to be hoped that the Government representative would propose the holding of such an inquiry.

The Committee of Experts had also requested the Government in its observation concerning Convention No. 98 to adopt specific provisions setting out sufficiently effective and dissuasive sanctions to protect workers' organizations against acts of interference by employers or their organizations.

With a view to ensuring the implementation of Convention No. 87, the legislation prohibiting the right to organize of prison staff, the procedure for the settlement of disputes and the 1973 Decree on the rights of organizations needed to be amended or repealed. The fundamental problem in the case of Swaziland was the 1973 Decree on the rights of organizations. This problem was all the more important as the process of the adoption of the Constitution seemed to have been suspended.

In conclusion, the Worker members requested the Government to allow civil society and trade union federations to participate in the drafting of the new Constitution. Furthermore, the draft Constitution should be submitted to the Committee of Experts or, in view of the tight deadline, it would be desirable for an ILO mission to visit the country to provide advice on the draft text. This would make it possible to establish a framework for social dialogue.

The Employer members, after thanking the Government representative for the information provided, emphasized that free speech was a fundamental element of freedom of association. They therefore urged the Government to ensure that the restrictions that were currently placed on free speech were lifted. Referring to the process of the development of the Constitution, which had been under way for several years now, they noted that Decree No. 4 discouraged group submissions, thereby undermining any proper process of consultation. It was of great importance that the provisions of the Constitution were aligned with the obligations set out in the Convention. For this purpose, it would be very valuable if the draft of the Constitution could be analysed by the Committee of Experts and therefore the Government should provide the text of the Constitution once it had been finalized. The paradox in the present case was that the basis for social dialogue appeared to be in place but not used in practice. The Employer members, therefore, urged the Government to build on this platform with the technical assistance of the ILO.

The Worker member of Swaziland responded to the statement by the Government representative, by stating that in Swaziland there was a disregard for the rule of law, extravagance in the face of poverty, a major HIV/AIDS problem, lack of democracy, officially-sponsored violence and poor governance. There was also an attempt to vilify the spokespersons of organizations which had access to the international media.

Swaziland had been ruled by emergency decree for 33 years, there were no political parties, all power was invested in the head of state, and there was no separation of powers.

There had been gross violations of Convention Nos. 87 and 98, arrests of labour leaders and even the death of a young girl at a demonstration. Amnesty International had also reported deaths in prison cells. It was only under great pressure that the Government had acceded to the new Labour Law in 2000. However, there had been no significant improvement in practice, implementation or enforcement. The country had a record of ratifying human rights related conventions and treaties, but was one of the worst violators of these instruments.

The speaker noted that this was the eighth time that Swaziland had appeared before the Conference Committee since 1996 for flagrant disregard and violation of Conventions Nos. 87 and 98 that it had ratified in 1978. The Conference Committee and the Committee of Experts had urged that Swaziland conform with the letter of these Conventions by allowing the police and prison staff to form and join associations of their choice; shortening the process for allowing a lawful strike; addressing section 40(13) of the Industrial Relations Act, making unions liable for losses suffered, if the loss happened during a legal protest; and refraining from use of the public order decrees of 1963 and 1973. The Government was also called on to lay the Security Bill before the Committee of Experts before it passed into law. However, the spirit of the Bill had been incorporated into the Constitution Bill to be shortly adopted by Parliament. The Constitution Bill limited freedom of expression and association, as well as denying a role to political parties in the governance of the country. All powers would be vested in the King.

The speaker therefore demanded that the Government allow police and prison staff freedom of association and collective bargaining rights; shorten the dispute process; remove the liability clause from the Industrial Relations Act, 2000; repeal sections 11, 12 and 13 of the 1973 Decree; repeal the 1963 Public Order Act; repeal section 4 of Decree No. 2 of 1996; engage in social dialogue and allow civil society to participate before finalizing the Constitution Bill; lay the Constitution document before the Committee of Experts to ensure conformity with Conventions; and provide a progress report to the Governing Body in November 2005.

The speaker stated that the people of Swaziland looked to the Committee to deliver human rights, social justice and human dignity.

The Government member of Namibia thanked the Government representative for the information supplied on the comments of the Committee of Experts. It was noteworthy that positive steps have been taken by the Government of Swaziland to give effect to the comments of the Committee of Experts and to adopt legislative amendments that would be in conformity with the provisions of the Convention. The speaker commended the Government for its willingness to cooperate with the social partners and the ILO on this specific subject.

The Government member of Nigeria recalled that the Government representative of Swaziland had in his response informed the Conference Committee that his country was prepared to set up a commission of inquiry, if there were sufficient facts that a trade unionist had lost his life during the noted protest. This was enough evidence that the Government of Swaziland was prepared to work with the ILO in implementing the provisions of the Convention, and with regard to the protection of the lives of trade unionists in that country. Based on the intervention of the Government representative it was clear that there was not only the political will for implementation of the provisions of the Convention, but also to listen to the ILO on issues that pertained to the fundamental rights of trade unionists. The speaker requested that the Conference Committee encourage the Government in its continued efforts to amend and improve other areas that had yet to be worked on.

The Government member of Cuba highlighted the measures taken by the Government and invited it to report whether prison staff enjoyed the right to freely associate in trade unions, bearing in mind that if they were armed forces or police personnel they could be excluded from the application of the Convention. Finally, the speaker pointed out that the Government could take advantage of ILO technical assistance.

The Government member of South Africa welcomed the Government of Swaziland's proposed and apparent improvements mentioned by the Government representative. The speaker stated that the Government had requested technical assistance and further noted that it should be provided to the Government. He called on the Government to engage in social dialogue with its social partners.

The Government representative thanked all speakers for their contributions, which would be taken into consideration as far as they related to the Convention. The future Constitution was in line with Swaziland's international obligations. He reiterated that the Internal Security Bill was no longer pursued and that the Government was encouraged by the assistance provided by the ILO and other countries with a view to promoting social dialogue. They would continue to work towards full application of the Convention.

The Worker members stated that this Committee turned back to the violations of freedom of association in Swaziland almost in every session and that as long as the Committee of Experts would indicate that these serious violations remained, the Committee would not have a choice but to discuss the case once again, and insist that the Government bring its legislation and practice into conformity with the Convention. They recalled that what was expected of the Government was to modify the law prohibiting the right to organize for prison staff; reform the procedure required for strike action to be taken, which was too long and onerous; abrogate the Decree of 1973, which suppressed trade union rights. They also considered that the draft new Constitution should be submitted to consultations with the social partners, or analysed by the Committee of Experts, with regard to its conformity with international labour standards before its adoption.

The Worker members envisaged the dispatch of a high-level mission with the participation of experts, a mission which could bring to light information on the death of a person during the protest of 2003. They specified that a refusal to accept such a mission would justify, in their view, the inclusion of this case in a special paragraph of the report, as a case of continued failure to implement the Convention.

The Employer members recalled that it was of fundamental importance that the Government fully implement social dialogue and address the discrepancies between the Convention and its law and practice as noted in the observation of the Committee of Experts. The Employer members had the impression that the Government had not been totally transparent in terms of the information provided to the Conference Committee and the Committee of Experts and emphasized in this respect the need for the Government to provide a detailed report to the Committee of Experts on the action taken in respect of the discrepancies noted with regard to the implementation of the Convention. The Employer members associated themselves with the proposal made by the Worker members for a high-level mission aimed at establishing a social dialogue framework in the country and examining the possible impact of the new Constitution on the implementation of the Convention in law and in practice. They doubted that the Government representative had authority to agree to a mission today, but urged the Government to agree to such a high-level mission before next year.

The Committee took note of the statement made by the Government representative, as well as the discussion that followed. The Committee recalled that this case had been discussed on numerous occasions over the past ten years. The Committee observed that the comments of the Committee of Experts referred to the right to organize of prison staff and various aspects of the right of employers' and workers' organizations to organize their activities without government interference.

The Committee noted the statement made by the Government that no deaths had occurred during the protest action referred to in the Committee of Experts' report. With regard to the right to organize of prison staff, the Government had indicated that it was reviewing the matter and hoped that it would soon be resolved. With regard to the constitutional process, the Government had stated that Parliament was currently debating the question and the Constitution would be made available to the Committee of Experts once it was promulgated. Finally, the Government had stated that the internal security Bill had been abandoned four years ago and was no longer an issue.

The Committee noted with regret that the 1963 Public Order Act and the 1973 Decree on the rights of organization, upon which the Committee of Experts had been commenting for many years, were still in force and invoked by the Government. Moreover, the Committee noted the serious concerns raised in respect of the Decree which prohibited any involvement by civil society in the drafting process of the new Constitution and its content.

The Committee recalled that social dialogue was a fundamental aspect of the full implementation of the Convention. It urged the Government to hold full and meaningful consultations with the most representative employers' and workers' organizations, and civil society as a whole, on the draft Constitution and to ensure that none of its articles would have the effect of contravening the Convention, and that its adoption would result in the effective repeal of the 1973 Decree and of Decrees Nos. 11, 12 and 13 adopted under the terms of that Decree. It further requested the Government to take the necessary measures to eliminate the remaining discrepancies between the law and practice and the Convention. The Committee requested the Government to provide detailed information in its next report to the Committee of Experts on all the measures taken in this regard and to provide a copy of the Constitution so that the Committee of Experts could examine its conformity with the Convention. The Committee also urged the Government to accept a high-level mission to establish a meaningful framework for social dialogue and to review once again the impact of the Constitution on the rights embodied in the Convention.