Report in which the committee requests to be kept informed of development - Report No 300, November 1995

1. 350. n its communication of 20 January 1995, the Democratic Confederation of Labour (CDT) presented a complaint of violations of freedom of association against the Government of Zaire. The Council of Public Service Trade Unions (COSSEP) then joined in this complaint on 24 March 1995.
2. 351. Due to the absence of reply from the Government, the Committee has had to twice defer the examination of this case. At its June 1995 meeting, the Committee addressed an urgent appeal to the Government in which it drew the Government's attention to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report approved by the Governing Body, it would submit a report on the substance of the case at its next meeting, even if the information and observations requested from the Government had not been received in due time. (See 299th Report of the Committee, para. 8.) To date, the Government has not sent any observations.
3. 352. Zaire has not ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87); it has ratified the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 353. In its communications of 20 January and 24 March 1995, the CDT, on its behalf and that of affiliated trade unions, namely the National Directorate of State Agents and Officials (DINAFET); the Zaire Teachers' Union (SYEZA); the National Union of Health Services Workers and Agents (SYNCASS); CONAMEFET and SYNAPESU, which form part of the Council of Public Service Trade Unions (COSSEP), and COSSEP itself, presented the Committee on Freedom of Association with alleged violations of freedom of association by the Government of Zaire, as follows:
   • - Following a peaceful march against the hunger and inhumane conditions facing officials, on 23 December 1994 in Kinshasa, leaders of the above-mentioned trade unions affiliated with CDT - Mr. Enos Bavela Vuadi, national president of DINAFET; Mr. Benjamin Mukunlungu, acting spokesman for the national president of the SYEZA; Mr. Kibisswa Kwabene Naubesse, secretary general of SYNCASS; and Mr. Florimond Yang'Tshi, CONAMAFET trade unionist - were arrested and placed in solitary confinement under military guard. In addition, trade union officials and other leaders, including Mrs. Muadi Kazongo, Mr. Odeon Mbaku and Mr. Manuanua, were stripped and tortured. These reprehensible acts were committed by the police and military in the presidential guard under orders from the Kengo Government because the protesters were asking for five to ten months of back pay, and were protesting against unilateral measures leading to the mass dismissal of more than half of civil servants.
   • - On 17 May 1993 in Kinshasa, the following officials of the CDT and affiliated trade unions were arrested and abducted for having made the same claims for back pay: Mr. Simon Tshimpangila N'Domba, secretary general of the CDT (abducted by commandos); Mr. Guy Kuku Gedila, Mr. Eugene Ngandu Tshilombo, CDT national secretaries; Mr. Enos Bavela Vuadi, of DINAFET; and Mr. Benjamin Mukunlungu, of SYEZA (arrested and then released without trial).
   • - In a flagrant and continuous violation of the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Labour Relations (Public Service) Convention, 1978 (No. 151), the Government has also created its own workers' trade unions in collusion with employers of certain enterprises deemed to play a key role in undermining union activities by the actual trade unions for civil servants.
2. 354. As regards the last item, the CDT points out that the list of trade union organizations registered by the Ministry of Labour and Civil Service is undeniable proof of the non-trade union nature of the government-created organizations. In particular, the CDT draws attention to the three hats worn by the so-called trade union members who belong to these organizations who are at the same time officials of the enterprise with which the trade union in question is associated, hold mandatory contacts with management which in turn is linked to security, and lastly, who represent the so-called trade union leaders.
3. 355. The CDT vigorously protests the discriminatory measures to which it and its affiliates are subjected by public enterprises and ministerial offices, which deny them positions - for example at REGIDESO, Radio Nationale, GECAMINES (mining and marketing) - when trade union elections are held. The CDT has allegedly been boycotted as well as having been denied access to union election meetings and prevented from holding them. It also denounces the constant harassment of trade union officials by the police, at both their offices and homes, which have been placed under rigorous surveillance.
4. 356. COSSEP also states that following a strike on 11-12 October 1994, management of the Ngaliema Clinic on 15 October 1994 forced SYNCASS and SOLSIZA union delegates to choose between their union duties and their hospital duties, suspending and dismissing Mr. Nkongo Essisse and Mr. Komba for having organized the strike. All union meetings at the Clinic have also been prohibited, and the Minister of the Civil Service has taken no action in this regard.
5. 357. The complainants also allege the following:
   • - The Ministry of Labour has refused to register trade unions created by state employees by employing delaying tactics and increasing administrative formalities.
   • - The Ministry of the Civil Service has created solidarist-type trade union organizations or mutual benefit societies by splitting up the leadership of existing unions.
   • - This same Ministry rejected certain trade union spokespersons, notably during collective bargaining in September and November 1994.
   • - This Ministry acted unilaterally to form a so-called "joint" commission for wage bargaining in September 1994, and imposed a ridiculously low salary scale.
   • - Troops under General Bosembo attacked Mr. Bavela, the COSSEP leader, for having protested against the composition of the commission.
   • - The Minister of the Civil Service orchestrated a defamation campaign on television against COSSEP as a means of disengaging state agents from COSSEP activities.
   • - In most public health institutions, trade union delegates from single unions have been accepted as partners in collective bargaining only when they are in agreement with the leadership of these institutions, except for INRB-Kinshasa, where bargaining was blocked.
6. 358. COSSEP protests against the following specific instances:
   • - The Government leaves state officials with accumulated outstanding back pay of eight, 12 and 36 months.
   • - It refuses to order the Bank of Zaire to settle this outstanding back pay.
   • - It suppresses protest movements by arbitrarily arresting trade unionists.
   • - The Minister of the Civil Service incites officials to violence by refusing to negotiate with trade unions who are solidly established in civil service.
   • - It forms so-called "trade union" organizations who side with it in the public service.
   • - The Supreme Court has refused to recognize the expiration of a colonial regulation which authorizes the repression of public demonstrations.
   • - The Attorney General of the Republic, along with the commanding generals of the Civil Guard and the National Police, have authorized the illegal arrest of trade unionists, and have taken no action against the torture of these people although it has been brought to their attention.
   • - The governor of Kinshasa ordered troops to brutally disperse and arrest demonstrators on 16 August and 13 December 1994, and 10 March 1995.
   • - The trade unionist Mr. Edouard Ngandu Mupidya allegedly received 60 lashes of the whip while detained at Ligwala on 7-8 March 1995.

B. The Committee's conclusions

1. 359. The Committee regrets that the Government has failed to send its comments and observations on the allegations presented by the complainant organizations, despite the time which has elapsed since the presentation of the complaint, and despite the fact that it invited the Government to do so on several occasions, including by means of an urgent appeal.
2. 360. Under these conditions, and in accordance with the applicable rule of procedure (see 127th Report of the Committee, para. 17, approved by the Governing Body at its 184th Session), the Committee finds itself obliged to present a report on the substance of this case, even if the information awaited from the Government has still not been received.
3. 361. The Committee first of all reminds the Government that the purpose of the procedures established by the International Labour Organization for examining alleged violations of freedom of association is to ensure respect for trade union rights, both in law and in fact. While these procedures protect governments against unreasonable accusations, they must for their part recognize the importance of formulating detailed and factual replies concerning the substance of the allegations brought against them in order to permit an objective examination (see First Report, para. 31).
4. 362. The Committee notes with deep concern the seriousness of the allegations presented by the complainant organizations in this case as regards arrests, detentions and torture of trade unionists, acts of repression against demonstrators, the hampering of trade union activities, and acts of anti-union discrimination, including the dismissal of officials, prohibition of union meetings in the health services, refusal to register trade unions, creation of trade unions by the authorities, and the Government's refusal to negotiate with representative trade unions.
5. 363. The Committee deeply regrets the alleged arrest and detention of a large number of trade unionists, including Mr. Enos Bavela Vuadi, president of DINAFET; Mr. Benjamin Mukunlungu, trade union leader of SYEZA; Mr. Kibisswa Kwabene Naubesse, secretary general of SYNCASS; Mr. Florimond Yang'Tshi, trade union leader of CONAMAFET; Mr. Simon Tshimpangila N'Domba, secretary general of the CDT; and Mr. Guy Kuku Gedila and Mr. Eugene Ngandu Tshilombo, CDT national secretaries. In this respect, the Committee reminds the Government that the arrest and detention of trade union leaders for activities connected with the exercise of their legitimate trade union rights constitutes a serious violation of the principles of the freedom of association. (See Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, paras. 87-88.) Therefore the Committee urges the Government to desist from such actions in the future and to keep it informed of the condition of persons referred to by the complainants.
6. 364. The Committee also points out that many of these arrests followed demonstrations described as peaceful by the complainants and which were organized protests against the living and working conditions of officials. In this respect, the Committee recalls that the right to organize public meetings constitutes an important aspect of trade union rights, and that police authorities should be given precise instructions, in cases where public order is not seriously threatened, so that people are not arrested simply for having organized or participated in a demonstration. (See Digest, op. cit., paras. 154 and 168.) Furthermore, the Committee recalls that: the detention of trade union leaders for activities connected with the exercise of their trade union rights is contrary to the principles of freedom of association; the arrest - even if only briefly - of trade union leaders and trade unionists for exercising legitimate trade union activities constitutes a violation of the principles of freedom of association; the arrest of trade union leaders against whom no criminal charges are laid involves restrictions on the exercise of trade union rights (see Digest, op. cit., paras. 87, 88 and 89).
7. 365. As regards the allegations concerning the ill-treatment and torture of certain trade unionists while in prison, in particular the 60 lashes of the whip allegedly given to Mr. Edouard Ngandu Mupidya, a member of the CDT trade union, at Ligwala in March 1995, as well as those concerning Mrs. Muadi Kazongo, Mr. Odeon Mbaku and Mr. Manuanua who were stripped and tortured, the Committee recalls that it has on many occasions stated that detained trade unionists, like all other persons, should enjoy the guarantees enunciated in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights in particular that all persons deprived of their liberty must be treated with humanity and with respect for the inherent dignity of the human person. The Committee consequently considers that governments should give precise instructions and apply effective sanctions where cases of ill-treatment are found. (Digest, op. cit., paras. 83-86.) The Committee strongly urges the Government to order immediately an independent and impartial inquiry so that appropriate measures will be taken as soon as possible, including compensation for damages suffered, and to inform it of the results of the inquiry.
8. 366. As regards the allegations of anti-trade union discrimination, including suspensions and dismissals for having participated in a strike in the health service against the Government's refusal to recognize trade unions and to negotiate with representative trade unions, and the prohibition of trade union meetings, the Committee has acknowledged that health services can be included amongst essential services in the strict sense of the term, i.e., services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. (Digest, op. cit., para. 394.) The Committee nevertheless has insisted on the principle that limitations be accompanied by certain compensatory guarantees. (Digest, op. cit., para. 393; also see para. 409.)
9. 367. The Committee takes note that in the case involving a two-day strike (11-12 October 1994), it would appear that the Ministry of Civil Service intervened by refusing to recognize certain trade unions and to negotiate with representative unions during collective bargaining in September and November 1994. The Committee emphasizes the importance it attaches to the adequate protection of workers who are denied the right to strike as a legitimate means of safeguarding their socio-economic interests, in order to compensate for the limitation placed on their freedom of action with regard to disputes affecting essential services. The Committee consequently is of the opinion that restrictions on the right to strike in health services are admissible only when they are accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented.
10. 368. The Committee also insists on the importance it places on the right of workers to hold trade union meetings without interference, as well as their right to form and join organizations of their own choosing without prior authorization.
11. 369. The Committee consequently requests the Government to take the necessary steps to (1) lift the prohibition on trade union meetings in the health services; (2) allow trade unionists who have been dismissed owing to their trade union activities to be reinstated in their posts; (3) refrain from hampering the formation of trade union organizations and from creating its own organizations; and (4) afford representative trade unions access to the joint commission on wage negotiations in the civil service in general, and the health services in particular.