Observation (CEACR) - adoptée 2024, publiée 113ème session CIT (2025)

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

The Committee notes the observations received on 30 August 2024 from the International Organisation of Employers (IOE), on 17 September 2024 from the International Trade Union Confederation (ITUC) and on 19 September 2024 from Education International (EI), recalling and raising issues addressed by the Committee below. The Committee notes the Government’s response to the observations made by the ITUC and EI, received on 2 December 2024, which it will examine at its next meeting.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 112th Session, June 2024)

The Committee notes the discussion which took place in June 2024 in the Conference Committee on the Application of Standards (the Conference Committee) concerning the application of the Convention by Eswatini. The Committee notes that the Conference Committee noted with deep concern the deteriorating state of public order and its negative impact on trade union rights in the country as well as a culture of impunity for the perpetrators of crimes against trade unionists. The Committee observes that the Conference Committee urged the Government to take effective, urgent and time-bound measures to:

• refrain from the violent treatment, intimidation or harassment, including judicial harassment, of leaders and members of trade unions in the education sector conducting lawful trade union activities, including the Swaziland National Association of Teachers (SNAT) President and Secretary-General Messrs Mbongwa Dlamini and Lot Mduduzi Vilakati;
• release, quash convictions and drop all charges brought against individuals for having exercised lawful trade union activities and ensure the safe return home of all trade unionists living in exile, including the Secretary-General of the Swaziland Transport, Communication and Allied Workers’ Union (SWATCAWU), Sticks Nkambule;
• conduct without delay independent investigations into: (1) alleged instances of intimidation, harassment or violence, including the murder of Mr Thulani Maseko and the persecution of Mr Mbongwa Dlamini, with a view to determining culpability and punishing the perpetrators and instigators of these crimes; and (2) investigate violence and interference by the police in lawful, peaceful and legitimate trade union activities and hold accountable those responsible;
• ensure that employers’ and workers’ organizations, including the Trade Union Congress of Swaziland (TUCOSWA), the SNAT and the SWATCAWU, are given the autonomy and independence they need to fulfil their mandate and represent their members;
• repeal any administrative orders or legislative provisions that have the effect of prohibiting or restricting the right to freedom of assembly of trade unions and ensure in practice that trade unions fully enjoy the right to hold public meetings as enshrined in the Convention, including by training police and security forces, municipal councils and the judiciary;
• address the findings of the Investigation Committee and the National Voluntary Conciliation and implement the planned sensitization campaign on the codes of practice in full consultation with the social partners and with the technical assistance of the ILO.

The Conference Committee also requested the Government to submit a detailed report on the measures taken and progress achieved with regard to the above recommendations, including all outstanding information requested by the Committee of Experts by 1 September 2024.

Follow-up to the recommendations of the Investigation Committee and the National Voluntary Conciliation procedure. ILO technical assistance. In its previous comment, the Committee noted the 2023 recommendations of the Independent Investigation Committee and the National Voluntary Conciliation procedure, mechanisms which were established at the national level to consider the complaints made by the TUCOSWA and the ITUC in the context of the Committee on Freedom of Association (CFA) Cases Nos 2949 and 3425, concerning allegations of interference in trade union activities, and violence during trade union gatherings. These issues have also been considered by this Committee and the Conference Committee. The Committee notes that the Government availed itself of the technical assistance of the Office for the implementation of the above-mentioned recommendation, which facilitated the adoption of an Implementation Plan by the Government and the TUCOSWA, in August 2024, subject to tripartite validation and review by other relevant stakeholders. In this context, the Committee also notes the observations made by the ITUC that following the voluntary conciliation, most of the issues raised by TUCOSWA in CFA Case No. 3425 remain unresolved. Recalling the Conference Committee’s request to address the findings of the Investigation Committee and the National Voluntary Conciliation with the technical assistance of the ILO, the Committee requests the Government to provide information on all progress made in this respect.

Civil liberties and trade union rights. Anti-union repression. Police violence against industrial actions. In its previous comment, the Committee noted with deep concern the serious allegations of the ITUC and the International Transport Workers’ Federation (ITF) regarding the persecution and murders of trade unionists and the excessive violence against strikers that increased in 2022 and 2023, with allegedly more than 80 people reported to have lost their lives because of police crackdown on protests that demanded democracy and wage increases, including during those organized by the SWATCAWU. The Committee also noted the Government’s indications that the attacks on public and private property, severe violence and killings were committed in the context of civil unrest since June 2021 and should not be associated with the exercise of rights under the Convention, and that the protests by the SWATCAWU had by no means been peaceful and had been dispersed with minimum police force.

With regard to the alleged persecution and murders of trade unionists, the Committee notes the Government’s indication that independent investigations into politically motivated crimes, including murders, have been ongoing, and that some cases are awaiting trial. As to the investigation of the murder of the human rights and trade union defender, Mr Thulani Maseko, the Government refers to challenges relating to the hostility and non-cooperation of potential witnesses. Concerning the alleged persecution by the authorities of Mr Mbongwa Dlamini, President of the SNAT, the Government denies attacks on his home by the security forces with live bullets, stating that the police only visited Mr Dlamini’s parental home to apprehend his nephew, who was suspected of possessing a firearm. Regarding the alleged excessive force by the police during peaceful trade union activities, the Committee notes that three relevant instances have been referred to the Human Rights Commission for investigation by the National Voluntary Conciliation procedure in the context of CFA Case No. 3425. In this regard, the Committee notes that the ITUC reiterates its previous observations concerning the increased violence of the police and security forces during gatherings and demonstrations, and again refers to cases of intimidation, raids, risks of arrests, and extrajudicial killings of trade unionists and human rights activists.

The Committee once again recalls that the rights of workers’ and employers’ organizations can only develop in a climate free of violence, threats and pressure, and that it is for the Government to guarantee that these rights can be exercised normally. It further recalls that Article 8 of the Convention provides that workers and their organizations, like other persons or organized collectivities, shall respect the law of the land and that the law of the land shall not be such as to impair, nor shall it be applied so as to impair, the guarantees provided for in this Convention. The authorities should resort to the use of force against workers, their leaders or their organizations only in situations where law and order is seriously threatened. The intervention of the forces of order should be in due proportion to the danger to law and order that the authorities are attempting to control, and governments should take measures to ensure that the competent authorities receive adequate training and instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in a disturbance of peace. Independent judicial investigations should be conducted rapidly and where they have found abuse, the absence of convictions for those guilty of crimes against trade union officers and members creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights. Recalling that the Conference Committee noted with deep concern the deteriorating state of public order and its negative impact on trade union rights in the country as well as a culture of impunity for the perpetrators of crimes against trade unionists, the Committee urges the Government to provide information on the outcome of all independent investigations into alleged instances of intimidation, harassment or violence, including as regards the murder of Mr Thulani Maseko, with a view to determining culpability and punishing the perpetrators and instigators of these crimes. In addition, the Committee requests the Government to provide information on any violations against trade unionists identified in the future and penalties imposed pursuant to section 49(1) of the Police Service Act, No. 22 of 2018 (disciplinary action against abuse of power by members of the police) or any other relevant statutory provision.

Charges brought against individuals for having exercised lawful trade union activities. The Committee notes the Government’s indication, in response to the request of the Conference Committee, that there are no charges or convictions against trade unionists for engaging in lawful trade union activities. Concerning Mr Sticks Nkambule, Secretary General of the SWATCAWU, the Government indicates that despite an injunction by the Industrial Court of Appeal, issued on the basis of the Industrial Relations Act against a planned protest (including pursuant to section 89 for threats to the national interests in view of the expected disruption of public transport services), SWATCAWU proceeded with the protest as planned on 13 December 2022. Therefore, a case for contempt of court was brought and a warrant issued for the arrest of Mr Nkambule, who fled to South Africa, before the police could arrest him. The Committee also notes the information provided by the Government in relation to the charges against Mr Mcolisi Ngcamphalala, Deputy Secretary of the SNAT, and Mr Kwazi Sithembiso Simelane, the Chairperson of TUCOSWA’s Youth Structure and Deputy President of the Swaziland Democratic Nurses Union (SDNU), considered in the context of CFA Case No. 3425, and which have not yet been decided by the judiciary or resolved in the context of the National Voluntary Conciliation procedure.

The Committee recalls that it considers that essential services, for the purposes of restricting or prohibiting the right to strike, are only those the interruption of which would endanger the life, personal safety or health of the whole or part of the population, and that the transport services and public transport are not considered to be essential services (see the 2012 General Survey on the fundamental Conventions, paragraphs 131 and 134). In this context, it also notes that section 89 of the Industrial Relations Act does not provide for any objective limitation and grants broad discretion to the Minister to seek an injunction restraining a strike, even though section 92 of the Act provides for the procedure to determine essential services, and section 93 of the Act provides for a list of essential services, which does not include transport services. Recalling the identical request of the Conference Committee, the Committee urges the Government to take the necessary measures in order to release, quash convictions of, and drop all charges brought against, individuals for having exercised lawful trade union activities, and ensure the safe return home of all trade unionists living in exile, including the Secretary-General of the SWATCAWU, Sticks Nkambule. In this context, the Committee requests the Government to provide a copy of the above-mentioned injunction by the Industrial Court of Appealconcerning the SWATCAWU 13 December 2022 protest action. The Committee also requests the Government, in the context of the current legislative reform, to take the necessary measures to review section 89 of the Industrial Court Act, and to provide information on the concrete measures taken or envisaged in this respect.

Harassment in the education sector. In its previous comment, the Committee noted with deep concern the serious allegations from EI, the ITUC, the ITF and the TUCOSWA concerning numerous violations of trade union rights in the education sector, in particular against the SNAT, including anti-discrimination acts and threats against the President of the SNAT, Mr Dlamini and the Secretary-General of the SNAT, Mr Vilakati, and attempts at weakening the SNAT through various means, leading to intimidation, decreased membership, incapacitated leadership due to a fear of assuming union positions, and low turnout in union activities.

The Committee notes that the Government denies these allegations, stressing that the Government has generally maintained a healthy relationship with the SNAT. Concerning Mr Dlamini’s dismissal and the relevant disciplinary and court proceedings, the Committee notes the very detailed information provided by the Government and EI, as well as the Industrial Court’s Judgement No. 257/2023 of 21 March 2024 declaring the dismissal of Mr Dlamini null and void and directing the Teaching Service Commission (TSC) to reconvene and proceed with the applicant’s disciplinary hearing (confirmed in the High Court’s Judgement No. 726/2024 of 15 November 2024). The Committee notes that the Government indicates that the reason for Mr Dlamini’s dismissal by the TSC was the unauthorized absence from work for a prolonged period of time between 2022 and 2023, whereas EI observes that the absence was authorized by the school’s management to take part in lawful union activities. The Committee also notes from the Government’s indications that the initial charges of bringing the profession into disrepute, following Mr Dlamini’s public contradiction of the Minister of Education and Training by saying schools would be closed on a date proposed for an unlawful protest action, were dropped in the disciplinary hearing process. Concerning the alleged persecution of Mr Mbongwa Dlamini, the Committee notes that EI asserts, in addition to the allegations considered above, his ongoing harassment and victimization, including through ignoring court orders in his favour, police raids of his house, the burning of his belongings, and a situation that forced him to leave the country for a few months in 2023 due to fears for his life. The Committee also notes the Government’s indication that the decision to bar Mr Dlamini from representing the SNAT in the Joint Negotiation Forum and all social dialogue structures, linked to his dismissal, was reversed in June 2024. Concerning the alleged threats against the Secretary-General of the SNAT, Mr Lot Vilakati, including to cancel his secondment on union duties, the Committee notes the Government’s indications that there are no disciplinary actions against him. The Committee also notes that the Government contradicts the previous observations made by the SNAT that the Government refused to collect and remit trade union fees for newly recruited members in 2023 in an attempt to deregister the union. The Government indicates that the delays in registering new union members and collecting union dues were brief and related to changes in the system for registering and deregistering union members, which now requires the communication of changes in the membership to the Ministry of Public Service. The Committee notes that the SNAT challenges the Government’s statement that “the Government has had good relationship with SNAT for years”. In this respect, EI observes, among other things, that the TSC still refuses to meet the SNAT in the presence of the SNAT President, and that the Government is promoting headteachers and deputy headteachers only if they join the Eswatini Principal Association (EPA), a union created to counter the SNAT. The Committee also notes that the Government has not provided any information as regards the outcome of the appeal against the disciplinary action concerning Ms Sacolo, Chairperson of the Limkokwing Branch of the National Workers Union of Higher Institutions (NAWUSHI), which allegedly targeted her as a union official. Recalling the corresponding request of the Conference Committee, the Committee urges the Government torefrain from the violent treatment, intimidation or harassment, including judicial harassment, of leaders and members of trade unions in the education sector conducting lawful trade union activities, including the SNAT President and Secretary-General, Messrs Mbongwa Dlamini and Lot Mduduzi Vilakati. In this respect, the Committee once again urges the Government to provide its comments on the remaining allegations, to indicate any measures taken to enable the SNAT to develop its activities in the education sector without threats against its leadership or interference, and to provide information on the follow-up to the decisions of the Industrial Court and the High Court in favour of Mr Dlamini.

Legislative reform. The Committee previously requested the Government that the issues of trade union registration (section 32) and of replacement of labour during the course of lawful strike action be considered in the review of the Industrial Relations Act. In this respect, the Committee welcomes the technical assistance of the Office provided in the form of a Technical Memorandum on the Industrial Relations (Amendment) Bill, 2022. In this respect, the Committee notes the Government’s request for further technical assistance regarding issues raised by TUCOSWA in the context of CFA Case No. 3425. The Committee encourages the Government to continue to avail itself of the technical assistance of the Office in the areas identified to work towards the conformity of the national legislation with the Convention and requests the Government to continue to provide information on all developments in this regard.

Article 3 of the Convention. Ban on trade union gatherings by administrative order. In its previous comment, the Committee noted with concern the allegation from EI, the ITUC, the ITF and the TUCOSWA that the right of freedom of assembly of workers’ organizations was considerably restricted. In this respect, the Committee noted that: (i) pursuant to administrative order of October 2021 of the Ministry of Housing and Urban Development, the laws regulating gatherings were suspended, revoking the powers of municipal councils to issue gathering notices; and (ii) pursuant to a public announcement, purporting a relaxation of the ban, as of 18 July 2023, municipal councils were allowed to issue permits for gatherings not exceeding ten people.

The Committee notes the Government’s emphasis that following the civil unrest, many gatherings and protest marches, including by trade unions have taken place. However, EI observes that there are still restrictions for trade unions to deliver petitions and march in the streets, and refers to public warnings in the press to the use of live ammunition should there be another civil unrest. In this respect, the Committee notes that the Government communicates with its report a public announcement of 7 October 2024 on gatherings by the Ministry of Housing and Urban Development, pursuant to which, anyone intending to use local authority spaces for gatherings must comply with Public Order Act No. 12 of 2017, the Code of Good Practice on Gatherings, 2017, and the Code of Good Practice on Industrial and Protest Actions (Legal Notice No. 202 of 2015), and that non-compliance with these legislative instruments will result in appropriate legal sanctions under the law. In this regard, the Government emphasizes that the laws governing public gatherings were never suspended, claiming that all previous administrative directives were informed by the COVID-19 restrictions and the civil unrest which started in June 2021. While welcoming the public statement on the issue of holding public gatherings, the Committee observes that the Government does not provide any information on the instructions given to the municipal councils, the police and security forces, that the restrictions to issue gathering notices were lifted. Recalling the Conference Committee’s request to repeal any administrative orders or legislative provisions that have the effect of prohibiting or restricting the right to freedom of assembly of trade unions and ensure in practice that trade unions fully enjoy the right to hold public meetings as enshrined in the Convention,the Committee requests the Government, for the purpose of legal certainty, to duly inform the local municipal councils, the police and security forces, as well as trade unions, of the lifting of all legal provisions and instructions banning local municipal councils from issuing permits for gathering, acting through official communication or other appropriate means. Further recalling that the Public Order Act, 2017, permits the gathering of not more than 50 people without notice requirements, the Committee also requests the Government to refrain from any public statements that would discourage or intimidate trade unions from exercising the rights granted under the Convention. Noting that capacity building activities in trade union rights and the handling of industrial actions (of lower ranked police officers, the union leadership and Marshalls, and the public at large) were also recommended by the Investigation Committee and the National Voluntary Conciliation procedure, and noting the Government’s reference to an upcoming awareness-raising workshop with ILO assistance, the Committee requests the Government to provide information on any measures taken to sensitize all relevant actors on the effective management of industrial and protest actions, in conformity with the Code of Good Practice for Industrial and Protest Actions (Legal Notice No. 202 of 2015), the Code of Good Practice on Gatherings (Legal Notice No. 201 of 2017) and the Public Order Act of 2017.

[The Government is asked to reply in full to the present comments in 2025.]