Cas individuel (CAS) - Discussion : 2009, Publication : 98ème session CIT (2009)

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

A Government representative, Minister of Labour and Social Security, underlining the enduring value of freedom of association, protection of the right to organize and trade unionism, expressed unease at the selection of the case of the application of Convention No. 87 in Swaziland for examination by the Committee, given the steps taken by his Government to comply fully with ILO Conventions, mainly with ILO assistance. Nevertheless, it was a positive opportunity to share his country’s progress on applying the Convention with the Committee. Referring to allegations made by the International Trade Union Confederation (ITUC) and the Swaziland Federation of Trade Unions (SFTU) of harassment, arrest and detention of trade union leaders who had participated in a march and the presentation of a petition, he denied any such action by his Government. The Secretary-General of the SFTU, Mr Sithole, had indeed been questioned by police, but his fundamental constitutional rights had not been violated, nor had those of his family. His Government did not believe in threatening and harassing people, least of all for exercising their trade union rights. He explained that Mr Sithole had been questioned in connection with insulting statements made against the King of Swaziland at a march held in Johannesburg, South Africa, on 16 August 2008. The statements were close to constituting a criminal offence, and he suggested that any person making or connected with such statements could expect to be questioned by the police. On 21 August 2008, Mr Sithole had voluntarily presented himself for questioning at Manzini Regional Police Headquarters, accompanied by two other trade unionists, after officers, only two of whom were armed, had visited his home to invite him to do so, which was common police practice. It should be noted that there was no allegation that Mr Sithole had been threatened with a firearm. He had left after being interviewed for less than an hour, and although an offence had been suspected, he had been neither harassed, arrested or detained. The police had simply done its duty to enforce the laws of the land and ensure that no double standards existed. It was not a violation of trade union rights to question someone in connection with any perceived violation of the law, provided that such questioning observed the principles of justice. He stressed the need for accusations to be accompanied by evidence to substantiate them.

He noted that issues had also arisen with regard to trade unionism in the prison and police services and the fact that some individuals had exercised their constitutional rights and brought legal proceedings against the Government. Although they had lost an appeal regarding the formation of trade unions, the judicial ruling handed down had suggested that the Government should consider amending certain laws. The Government would review all laws in order to bring them into line with the Constitution, and the Tripartite Drafting Committee’s report on the Industrial Relations Amendment Bill had made some important proposals in that regard.

Turning to the allegation that the police had arrested several union leaders on their way to stage a peaceful protest action, thereby violating Convention No. 87, which Swaziland had ratified and incorporated into its domestic legislation, he expressed the view that the allegation was exaggerated. Swaziland had taken various legislative steps to ensure full compliance with international labour standards, including by monitoring and amending legislation as necessary, with ILO support. The allegation concerning serious violations of workers’ rights during a peaceful and lawful strike by textile workers, including beatings and shootings with live ammunition, contained serious factual inaccuracies. Workers had not been shot at using live ammunition, and there was no evidence to support such a claim. The complaint also omitted to state that the originally peaceful strike had deteriorated into violence, particularly against non-striking workers and the police. He refuted claims that the strike had been stopped by police brutality, and that police officers had stolen medical reports and warned doctors against issuing medical reports without police permission, as there was no evidence and the police was not authorized to do so. In fact, the striking workers had taken an independent decision to end the strike, which had by then lasted around a month. Despite provocation, the police, some of whom had sustained injuries during the course of their duties, had maintained law and order by applying only minimum force where necessary. With regard to the allegation that an unidentified worker had been drowned by police, he underlined the public expectation that the police would operate within the law. Anyone with evidence to support this allegation should pursue justice through the courts. Several allegations made, concerning shootings and death threats, also lacked any evidence to substantiate them and unduly portrayed tyranny by the police. It had also been alleged that workers engaged in protected strike action had been dismissed, which automatically constituted unfair dismissal under Swaziland law and could be costly for employers. The Government did not support such dismissals.

He drew attention to the increasing tendency of peaceful socio-economic protests to become violent, which went against the spirit of Convention No. 87. Under section 40 of the Industrial Relations Act, workers not engaged in an essential service were entitled to take part in peaceful protests to promote their socio-economic interests, but many such actions were hijacked by political groups to pursue their own agenda, which was often at variance with those of the workers concerned. Violence towards police and the public during such events was increasingly frequent and threatened public order. In such circumstances, the police was expected to carry out its mandate. He gave several examples of marches and other demonstrations that had ended in violence, including one scheduled to coincide with national elections in September 2008. The Government had denied permission for the demonstration to be held on the grounds that it was purely political, but the workers had gone ahead with their protest, seriously threatening the election process. Although the line between socio-economic and political matters was always thin, the protest in question had clearly been political in nature, as it had been aimed at regime change. It should also be noted that a demand for changes to the Constitution had already been tabled with the High-Level Steering Committee on Social Dialogue, in line with the recommendations of the ILO high-level mission to Swaziland in June 2006.

He emphasized that social dialogue had been welcomed in Swaziland, where much had been achieved in terms of its institutionalization. Lists of issues prepared by the social partners were discussed by committees within the structure. The Labour Advisory Board had recently reached agreement on the draft Industrial Relations Amendment Bill, and the proposed amendments covered most of the comments made by the ILO supervisory bodies. While he acknowledged that the process had taken time, that was only to be expected when tripartite consultation was involved. He outlined some of the proposed amendments, which demonstrated that the comments of the Committee of Experts and other bodies had been fully taken into account. In his view, the rights of workers received further support from the Constitution, the provisions of which prevailed over any other law. He reaffirmed his country’s commitment to observing the letter and spirit of all the ILO Conventions it had ratified, both in law and in practice, and looked forward to further cooperation with and support from the ILO.

The Worker members expressed the view that the case of Swaziland should be considered in the light of previous observations by the Committee of Experts and the ILO high-level mission in 2006, as well as the continuous, deliberate, systematic and well-calculated violations perpetrated by the State through various legislative acts. Recalling previous discussion of the application by Swaziland of Convention No. 87 and the direct contacts mission of 1996, they said that persistent violations of the Convention had prompted the ILO to send a high-level mission to the country to review the impact of its Constitution on the rights of workers and to make suggestions for a meaningful framework for social dialogue in the light of steps already taken. The high-level mission had noted a number of laws that were interfering directly with the operation of trade unions and civil society in general and had requested the Government to keep it informed of the progress made in a number of areas. The mission had held meetings with interested parties at all levels, from the Prime Minister to civil society groups; however, neither the direct contacts mission nor the high-level mission had persuaded the Government to fulfil its obligations. They added said that the Government had claimed to have submitted a copy of the Media Council Bill to the ILO, but that it had not done so. The Bill placed statutory restrictions on the nomination of union candidates and their eligibility for office, in direct contradiction with the aims and objectives of Convention No. 87. In response to calls from the ILO supervisory bodies to amend certain sections of the Bill, the Government had asserted that it needed more time. With regard to provisions allowing employers to dismiss workers during a strike, the Government had claimed that they were intended to act as a deterrent for workers against flouting striking procedure before a strike. Many other laws contained similar provisions, but no action had been taken on the recommendations made by the high-level mission. Despite various ILO missions to Swaziland, the arrest, detention and brutalization of trade union members, human rights defenders and peaceful demonstrators continued. Workers engaged in lawful strikes in the textiles industry had been dismissed and protesters had been maliciously attacked, in clear violation of workers’ rights. Swaziland had voluntarily ratified Convention No. 87 and was therefore obliged to recognize the trade union freedoms provided for therein, implementing the letter and spirit of the Convention in law and practice. They outlined various measures taken against trade unionists by the police, which demonstrated that no pluralism was accepted in Swaziland. The autocratic governance system was stifling civil society, including trade unions. Workers suspected that the Government of Swaziland was maliciously resisting the right to freedom of association by prison staff, denying them even the possibility of forming a trade union, in part because of acts committed against incarcerated trade unionists.

Expressing the view that decrees had always been used to circumvent the law-making process and only served the interests of the authorities, they affirmed that, if the practice were allowed to become a way of life, workers in Swaziland would never enjoy democratic values in their workplaces. The ILO had always encouraged its member States to engage in social dialogue in order to ensure that workers’ rights were guaranteed. In that regard, they highlighted the punitive effects on Swaziland’s workers of various acts and decrees that remained in force. In an echo of the country’s colonial past, the police forced themselves into trade union meetings and conferences. In its current form, the Industrial Relations Act was divisive and unnecessary, particularly given that the Southern African Development Community was encouraging its members, which included Swaziland, to harmonize their laws with a view to comprehensive regional economic integration. They recalled that the Committee of Experts had duly noted the previous tripartite undertaking to establish a special consultative tripartite subcommittee within the framework of the High-Level Steering Committee on Social Dialogue, the purpose of which was to review the impact of the Constitution on the rights embodied in Convention No. 87 and to make recommendations to the competent authority to eliminate discrepancies between existing provisions and the Convention. This had been promulgated in October 2007, with notice given of the appointment of members of the Steering Committee. However, the initiative had failed to obtain any result. There was still no sign of commitment to a programme to review laws and, if anything, the situation was worsening. They emphasized that the Government of Swaziland did not exist in isolation, but had to coexist with its citizens. Arrest, detention and other forms of oppression and suppression did not present a good image of Swaziland. Its decrees contradicted peace-making, yet peace and social justice were at the foundation of the ILO and were the desire of all humanity. The Government of Swaziland seemed intent on continuing to inflict pain on its workers, throwing the concept of social dialogue out of the window. The establishment of a functioning tripartite structure and a subcommittee to examine the Constitution and the concept of constitutionalism was fundamental to ensuring genuine democracy in the world of work. They cautioned against referring to regime change in the context of sub-Saharan Africa, given the unfortunate connotations of the phrase. The basic rights of workers had nothing to do with regime change. The statements by the Government representative on several issues served only to support the workers’ case against the actions of the Government, the police and other bodies. Trade unions had evidence of the arrest and torture of a number of individuals, but they raised the question of what action the Government would take. Even as the Committee continued its deliberations, the Government was preparing to approve new laws that would have a detrimental effect on workers’ rights.

The Employer members were sceptical about the progress alleged by the Government of Swaziland. National legislation had basically remained unchanged since the first examination of the case in 1996, and the 50 per cent threshold for workers to organize did not constitute progress, since it was far too high. The present case constituted a seamless history of repression of free speech, police brutality and oppression. The Employer members expressed their disbelief in the Government’s statement that the issues raised would be solved, and raised serious doubts as to the possibility that the situation could improve in the near future.

The Government member of Norway, speaking on behalf of the Government members of the Nordic countries, Denmark, Finland, Sweden and Norway, stated that the human rights situation in Swaziland, including the right to organize and to arrange and participate in legal strikes in accordance with Convention No. 87, was a long-standing case and had been discussed by this Committee several times. She took note of the allegations of repercussions on trade union activists and of the dismissal of workers who had taken part in lawful industrial action. She expressed concern that the ITUC had also reported serious acts of violence and brutality by the security forces against trade union activists and leaders. She called on the Government to respond to these allegations in detail. Her Government also noted that the Committee of Experts had once again highlighted the non-conformity of some of the laws with Convention No. 87. While the Committee of Experts had acknowledged that the Industrial Relations Amendment Bill had taken into account some of its comments, certain issues still remained unaddressed. Among others, the national legislation still did not provide for the right of workers to organize and to take lawful industrial action, as provided for in the Convention. She urged the Government of Swaziland to continue to make use of the technical assistance of the Office to bring the legislation into conformity with Convention No. 87 and to provide detailed information regarding the reported acts of violence against trade union activists and those who had participated in lawful and peaceful strikes.

The Worker member of Swaziland stated that, unfortunately, Swaziland was again listed among the countries violating Convention No. 87. For over ten years, the Government had been advised by the ILO not to use the 1963 Public Order Act and to repeal the 1973 State of Emergency Decree. However, the 1963 Act continued to be applied and the Government had stated that the contents of the 1973 Decree had been included in the new Constitution. As a result, the new Constitution, like the 1973 Decree, did not respect the doctrine of the separation of powers, banned political parties and provided for a very limited Bill of Rights. He referred to a number of examples of continued gross violations of the Convention by the Government, such as the arrest and detention of a number of textile workers, mostly women, who had participated in a legal strike, some of whom had been severely injured by the police; the detention and interrogation by the police of trade union leaders and other workers who had participated in marches in Sandton and Johannesburg to deliver a petition at the SADC Summit; the interception of workers by the police in a lawful demonstration in September 2008; and the interference by the police in other events organized by workers and arrests of activists. He added that certain political parties had been banned under the Suppression of Terrorism Act, and that a Bill on Public Servants was being prepared by the Government without consulting the tripartite Labour Advisory Board. In conclusion, he said that the system of governance in Swaziland was profoundly anti-democratic, economically unjust and socially discriminatory. The Government systematically evaded the only tool of conflict management, which was social dialogue accompanied by ILO technical assistance.

The Employer member of Swaziland indicated that the Tripartite Drafting Committee had completed its work, and that the Bill had recently been adopted by the Labour Advisory Board. All the issues raised by the Committee of Experts had been adequately addressed. With regard to the application of the Convention in practice, she indicated that she was not aware of any dismissal of workers engaged in lawful strikes, but if that were the case, the Swaziland Industrial Court was the competent authority to review such cases of violation and to effectively punish the employers found guilty of infringing workers’ rights. She urged all members of her Federation to comply with the law in this respect. Generally speaking, employers were not always in favour of strikes because of their negative impact on the economy and business in general. A significant number of strikes and protests were due to reluctance to engage fully in social dialogue. While the Government of Swaziland was committed to social dialogue, progress was desperately slow, and the recently established infrastructures were not frequently utilized. However, in the context of the current economic meltdown, it was only through social dialogue that a country could forge a way forward.

The Worker member of South Africa recalled that the Committee of Experts had been examining this case for several years and that, despite the Government’s commitment to achieve progress, the situation had not improved in practice. The adoption of the Industrial Relations Act in 2000 had appeared to be a positive step. However, the Government was still applying the state of emergency legislation, such as the Public Order Act of 1963 and section 12 of the Decree of 1973 on trade union rights, against workers and their organizations, thereby violating civil freedoms. Since 1973, the current Government of Swaziland had been ruling the country through the use of force, impunity, absence of social dialogue, lack of the rule of law, brutality against citizens engaged in peaceful demonstrations and failure to respect the judicial authorities. In May 2008, the Parliament of Swaziland had passed a controversial Act empowering the Prime Minister to declare virtually anyone or anything a terrorist activity. The Parliamentary elections of September 2008 had been declared by the Pan-African observation mission as infringing basic democratic rights, and a Commonwealth expert team had made recommendations for constitutional reform to ensure political pluralism. It would not be possible to note tangible progress until the Industrial Relations Act and the Terrorism Act were repealed, the arrests and detention of political and trade union leaders discontinued and the constitutional review enabling the people of Swaziland to democratically choose their Government undertaken and genuine, meaningful and result-oriented social dialogue aimed at achieving socio-economic justice, decent work and proper governance introduced. Trade union and political activists who feared for their lives were currently taking refuge in neighbouring South Africa. The case of Swaziland should therefore be mentioned in a special paragraph.

The Worker member of Botswana emphasized that the monarchy was circumventing the Bill of Rights enshrined in the Constitution by bringing back the 1973 State of Emergency Decree through the backdoor with the introduction of the Suppression of Terrorism Act of 2008. This Act removed all the fundamental rights guaranteed in the Constitution and the Universal Declaration of Human Rights which provided for the basic freedoms of opinion, expression, association, belief and conscience. He expressed surprise and dismay that Mario Nasuku and Thulani Naseko had been arrested. Mario Nasuku, the leader of the People’s United Democratic Movement (PUDEMO), was facing charges in connection with terrorism, or alternately sedition. Thulani Naseko, a human rights lawyer, was alleged to have made seditious statements on May Day in 2009. Their arrest and that of others was a clear indication that there was no freedom of association and expression in Swaziland. Jan Sithole, Secretary-General of the Swaziland Federation of Trade Unions, was an example of a trade union activist who had been subjected to torture and harassment by the security forces. He condemned the arrests of Mario Nasuku and Thulani Naseko and called for their immediate and unconditional release. He also called on the ILO to assist the Government with its legislative reform and emphasized that strike action was a way of exercising freedom of expression.

The Worker member of Senegal recalled that the case of Swaziland had been discussed several times by the Committee, and that both the Workers and the Employers had always emphasized the seriousness of this case. The comments of the Committee of Experts were still a matter of concern despite the severe conclusions adopted by the Conference Committee for many years. The Government had ratified the ILO Conventions, but always found ways to evade its obligations, and workers were still denied their basic right to organize in full freedom. In his view, the Government’s silence in relation to the requests of the Committee of Experts demonstrated its desire to evade its obligations. He endorsed the regrets expressed by the Committee of Experts concerning the Government’s persistent refusal to amend the legislation of 1973, which had established a state of emergency that had lasted for over 36 years and used public order as a pretext to suppress legitimate and peaceful strikes. The Government seemed to have forgotten the public social order and its responsibility to ensure the implementation of the Convention. He considered that the case needed to be classified as a continued failure to apply the Conventions on freedom of association. He recalled the extreme gravity of the situation in practice, as testified by Mr Sithole during a visit to Senegal. Such a situation merited the inclusion of the case in a special paragraph of the Committee’s report.

The Worker member of Germany, speaking on behalf of the Worker members of the European Union, referred to the relations between the European Union and Swaziland, which were based on the Cotonou Agreement and the South African Development Community (SADC) Agreement. The EU high-level mission to the country in May 2009 had noted that the Human Rights Commission had still not been set up and that the Constitution had not yet been amended. The mission had also noted that freedom of assembly was not guaranteed, that the Terrorism Act was utilized to prohibit demonstrations by civil society, including trade unions, and that murders and torture of members of civil society were not prosecuted. She added that the Cotonou Agreement represented the give and take of development aid versus democracy and human rights. As illustrated above, Swaziland had not taken steps forward, but rather backward. The Worker members of the European Union expected the European Union to draw the obvious conclusions from the lack of noticeable progress in respect of democracy and human rights. This was not about stopping development aid for Swaziland. However, the European Union should demand that the Government of Swaziland respect its commitments under the Cotonou Agreement and implement the recommendations of the EU high-level mission.

The Government representative of Swaziland was encouraged by the constructive comments made by some of the members and wished to assure the Committee that all comments would be given due consideration. Since he had already covered most of the comments in his main statement, he refrained from repeating them. Although this was not the first time that Swaziland had appeared before the Committee concerning this Convention, he reiterated that this did not imply that nothing had been done in this regard. Significant progress had been made on legislative reform aimed at ensuring future compliance. In this regard, the Industrial Relations Act of 2000 had been amended several times since its promulgation and other amendments were under way. This had been achieved with the full participation of the social partners and the assistance provided by the ILO. With regard to social dialogue, the Kingdom of Swaziland had established a high-level national social dialogue committee consisting of cabinet ministers, legislators, members of the business community as well as workers. He wished to report to this Committee that Swaziland’s tripartite partners had identified and agreed on the development of a Decent Work Country Programme and on a centralization of social dialogue to attain decent work objectives. Social dialogue was also to be used as the entry point for ILO technical assistance. The Government was committed to working with the social partners to achieve their national objectives and to improving the quality of life. ILO technical support was necessary to be able to complete the development of the social dialogue initiative that had been started in Swaziland. The proposed draft legislative amendments had been submitted to the ILO as per normal practice. The Ministry had set up a programme to have the drafts passed by the relevant legislative authorities and would report on progress to the Committee of Experts in November 2009.

The Worker members recalled that the Committee had decided in 2005 on a high-level mission to Swaziland, following which a Tripartite Agreement had been signed in 2007. However, not a single step had yet been taken to implement the Agreement and in the past two years the situation of trade unions and of all fundamental human rights, in particular under the provisions of the Terrorism Act, had worsened. There was no social dialogue in Swaziland and the Government needed to take effective steps to implement the 2007 Tripartite Agreement. The most immediate steps to be undertaken concerned the review of the Constitution to bring it into compliance with the provisions of Convention No. 87 and the issuing of recommendations to the relevant authorities to eliminate discrepancies in both law and practice with Conventions Nos 87 and 98, taking into account the comments of the ILO supervisory bodies. They asked to be kept informed of the progress of tripartite dialogue in the assessment of the Public Sector Bill and requested that the Government be asked to report back to the Governing Body in November 2009. They called for the repeal of the Terrorism Act. The Office had to offer technical cooperation to the Government of Swaziland in order to bring the Constitution as well as the Public Order Act of 1963, the Decree of 1973 and the Industrial Relations Act into line with ILO Conventions. Furthermore, they called on the Government to immediately and unconditionally release Mario Masuku and Thulani Maseko. The Government also needed to end the brutality directed against trade unionists and other human rights defenders, stop the violent suppression of peaceful rallies and civic actions, respect human rights and immediately act to end the impunity of those responsible for anti-union repression. In view of the long history of violations and the current situation, they called for this case to be included in a special paragraph. As all trade unionists from Swaziland present at the Conference risked becoming victims of persecution when returning to the country, they asked the Office to remain vigilant and to undertake measures to assure their safety and ongoing protection.

The Employer members noted the consensus within the Committee that there was a lack of social dialogue. In paragraph 62 of its report, the Committee of Experts had highlighted the need for technical assistance in this case. It was clear that technical assistance would be valuable, considering that the case had a long history with no progress. It was evident that since the first discussion of this case in 1996, the Government knew what needed to be done, yet had not done it. The Employer members agreed with the proposal by the Worker members that the conclusions of this case needed to be included in a special paragraph in order to highlight the need for the Government to finally implement Convention No. 87, including adhering to freedom of speech and social dialogue and preventing police repression. The Government needed enact to promptly the necessary legislation to adequately address the issues identified by the Committee of Experts.

Conclusions

The Committee took note of the statement made by the Government representative and the debate that took place thereafter.

The Committee observed that the comments of the Committee of Experts had referred for many years to the need to repeal the Decree/State of Emergency Proclamation and its implementing regulations and the Public Order Act, as well as to restrictions to the right to organize of prison staff and domestic workers, the right of workers’ organizations to elect their officers freely and the right to organize their activities and programmes of action.

The Committee took note of the Government’s detailed reply in relation to the allegations of arrest and detention of the Secretary-General of the Swaziland Federation of Trade Unions (SFTU). While the Government acknowledged that the police had called Mr Sithole to headquarters for questioning in relation to serious insults allegedly made in respect of the King in his presence, the Government representative insisted that this had nothing to do with his trade union activity and he had not been detained any further. The Government representative had provided further information in relation to the other allegations and, while admitting that some elements were true, he had stressed that there were also serious inaccuracies. He had also indicated that the request for change of the national Constitution had already been tabled with the High-level Steering Committee on Social Dialogue, as requested by the 2006 ILO high-level mission. He had further indicated that a draft law within the framework of the Labour Advisory Board amended some provisions objected to by the Committee of Experts and would be put before Parliament this year. Finally, the Government representative stressed that workers rights were fully guaranteed by the 2005 Constitution.

The Committee noted with concern the Government’s reply to the allegations submitted by the International Trade Union Confederation (ITUC) to the Committee of Experts concerning the acts of violence carried out by the security forces and the detention of workers for exercising their right to strike, and felt itself obliged to recall the importance it attached to the full respect of basic civil liberties such as freedom of expression, of assembly and of the press. The Committee stressed that it was the responsibility of governments to ensure respect for the principle according to which the trade union movement can only develop in a climate free from violence, threat or fear and called upon the Government to ensure the release of any persons being detained for having exercised their civil liberties.

The Committee regretted that, although the Government had benefited from ILO technical assistance for some time now, including through a high-level mission, the legislative amendments requested for many years have yet to be adopted. The Committee urged the Government to take the necessary measures so that the amendments requested by the Committee of Experts were finally adopted.

Noting with concern that the Special Consultative Tripartite Subcommittee of the High-level Steering Committee on Social Dialogue had not met for several months, the Committee, stressing the importance of social dialogue, particularly in these times of economic crisis, urged the Government to reactivate the Subcommittee as a matter of urgency. It further highlighted its outstanding calls to the Government to repeal the 1973 Decree, to amend the 1963 Public Order Act, as well as the Industrial Relations Act, and expressed the firm hope that meaningful and expedited progress would be made in the review of the Constitution before the Steering Committee on Social Dialogue, as well as in respect of other contested legislation and bills. The Committee offered the continuing technical assistance of the Office in regard to all the above matters. The Committee requested the Government to transmit a detailed report to the Committee of Experts for its meeting this year containing a time-line for resolution of all the pending questions. The Committee expressed the firm hope that it would be in a position to note tangible progress next year.

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