Informe provisional - Informe núm. 327, Marzo 2002

1. 563. The Committee previously examined the substance of this case at its November 1997, June 1998, June 1999, May-June 2000, November 2000 and June 2001 meetings, presenting an interim report to the Governing Body in all these instances [see 308th Report, paras. 327?347; 310th Report, paras. 368-392; 316th Report, paras. 465-504; 321st Report, paras. 220-236; 323rd Report, paras. 176-200; and 325th Report, paras. 368-401].
2. 564. The Government provided further information in a communication dated 9 October 2001.
3. 565. Ethiopia has ratified both the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 566. This case, which dates back to June 1996, concerns very serious allegations of violations of freedom of association: the Government’s interference in the functioning and administration of the Ethiopian Teachers’ Association (ETA), its refusal to continue to recognize it, the freezing of its assets and the killing (including that of Mr. Assefa Maru, one of the ETA leaders), arrest, detention (notably the trial, sentencing and detention of Dr. Taye Woldesmiate, Chairman of the ETA), harassment, dismissal and transfer of ETA members and officials. The Committee expressed on several occasions its grave concern with respect to the extreme seriousness of the case and urged the Government to cooperate in providing a detailed response to all the questions posed by the Committee.
2. 567. At its June 2001 session, in the light of the Committee’s interim conclusions, the Governing Body approved the following recommendations [325th Report, para. 401]:
   • (a) Recalling that justice delayed is justice denied, the Committee urges the Government to ensure that Dr. Taye Woldesmiate and his co-accused may enjoy, as soon as possible, the right to appellate proceedings, with all guarantees of due process, and requests once again the Government to keep it informed of developments in the situation, in particular as regards measures taken to release Dr. Taye Woldesmiate and his co-accused.
   • (b) The Committee requests once again the Government to take the necessary measures to hold an independent inquiry into the killing of Mr. Assefa Maru, and to keep it informed of developments in this respect.
   • (c) The Committee requests the complainants to provide updated information on workers they consider as being still aggrieved by the Government’s actions, in respect of ETA members and leaders charged, detained or harassed due to their trade union membership and activities.
   • (d) The Committee requests the Government to provide its observations concerning ETA members allegedly transferred or dismissed, including as regards the latest allegations, and requests the complainants to provide updated information on workers still affected by these measures.
   • (e) Recalling that the introduction of the evaluation system should not be used as a pretext for anti-union discrimination, the Committee requests the Government to keep it informed of developments and to provide its observations on the complainants’ latest allegations in this respect.
   • (f) The Committee requests the Government to provide its observations on the latest allegations of interference in ETA activities.
   • (g) The Committee requests the Government to ensure that freedom of association principles, in particular those relating to the right of workers to establish and join organizations of their own choosing, are fully taken into account in the final division and appropriation of ETA assets.
   • (h) Recalling that teachers, like other workers, should have the right to form and join organizations of their own choosing and to negotiate collectively, the Committee requests the Government to amend the legislation, and to keep it informed of the measures taken in this regard.
   • (i) Noting with interest the authorities’ willingness to reconsider the whole situation, the Committee recalls once again that the Government may avail itself of the ILO’s technical assistance on all the above subjects.

B. The Government's new observations

1. 568. In its communication of 9 October 2001, the Government states that the new allegations made by the complainants [see 325th Report, paras. 379-390] are unfounded in many respects. Before answering those, the Government explains the current legal framework as regards freedom of association and its application in practice, in order to refute the complainants’ sweeping allegations that there is no freedom of association in Ethiopia.
2. 569. The principle of freedom of association is recognized in articles 31 and 42 of the Constitution. Article 113(1) of Labour Proclamation No. 42/1993 provides that workers and employers have the right to establish organizations. Article 114 of the Proclamation gives workers the right to establish trade unions at enterprise, federation and confederation levels. Article 125 of the Proclamation guarantees the right to bargain collectively on matters concerning employment relationships and conditions of work.
3. 570. The Government has undertaken a study on the need to amend the labour legislation. The matter has been discussed in the Tripartite Labour Advisory Board. Amendments to the Labour Proclamation on trade union diversity at enterprise level on dissolution of trade unions and other subjects are before the Council of Ministers. The Law on Civil Service Reform including the labour rights of civil servants is before the House of People’s Representatives.
4. 571. Ethiopia has been a member of the ILO since 1923, and has remained an active member of the organization. It has contributed its share in promoting and implementing the principles and activities of the ILO and has benefited from the technical assistance provided by the Office. At present, Ethiopia is serving as a titular member of the ILO Governing Body. Ethiopia has ratified 18 Conventions, six of which are fundamental Conventions, including Convention No. 87 and Convention No. 98. The Government of Ethiopia has continued to ensure the implementation of these Conventions, including by incorporating them into the national laws and practices of the country.
5. 572. Workers and employers freely exercise the right of freedom of association; they draw up their associations’ constitution on their own through free discussion and expression of views among association members. Moreover, workers’ and employers’ organizations freely participate in the country’s political, economic and social affairs. Their representatives participate at the different levels of the political system. There exist many workers’ organizations, which are legally established and operate freely, including the Confederation of the Ethiopian Trade Unions, and various associations which operate separately from the Confederation. The Ethiopian Employers’ Federation, which had been banned in 1978 by the military regime, was re-established in May 1997. Trade unions and employers’ associations are represented by two members in the National Labour Advisory Board. According to the Government, this shows that freedom of association is widely enjoyed by various groups in the country.
6. 573. With regard to the trial and conviction of Dr. Taye Woldesmiate, the Government of Ethiopia had clearly established that the legal process in this case from its very inception has been conducted in accordance with the laws of the country. Information was forwarded on the judicial procedures in which all the defendants have been represented by lawyers of their own choice and all guarantees of due process of law observed throughout the trial. Hence, since the fact that the trial has been conducted by a court duly constituted on the principles of rule of law and independent judiciary, doubts expressed with regard to the fairness of the trial process is not warranted. It should also be noted that there is no room in the Ethiopian legal system of the executive branch of the Government to interfere in the functioning of the judiciary. After examining the case, the court decided on the criminal responsibility of the accused and the co-defendants without undue delay.
7. 574. Dr. Taye Woldesmiate appealed to the Supreme Court after the lapse of the prescribed period of appeal. The Court nevertheless accepted to hear the appeal. Some of the adjournments in the case related only to the receivability of the appeal. As such, there was no undue delay in the judicial process both at the trial and appeal stages. Currently, the appeal lodged by Dr. Taye Woldesmiate against his conviction is pending before the Supreme Court, which is set to continue examining the appeal on 23 October 2001.
8. 575. The allegation that Dr. Taye Woldesmiate’s prison conditions are severe is false. His conditions are no different from any other detainee in the country. His physical and mental well-being are fully guaranteed, including access to medical services and visits by his relatives, acquaintances and international connections including representatives of EI and other organizations.
9. 576. Hence, the Government considers that the conclusions of the Committee with regard to the matter are not founded on the applicable laws and facts and respectfully requests the Committee to examine carefully the replies of the Government on the case and the fact that the defendant is still pursuing the appeal process before formulating its recommendations. The judicial process of a country should be respected. Any suggested measure other than the exhaustion of the legal process would be seriously undermining the independence of the courts and rule of law in the country. The Government will keep the Committee informed of developments concerning the ongoing appeal process.
10. 577. As regards the alleged interference in the functioning of the ETA, the Government once again assures the Committee that it has never interfered in the functioning of any association in the country. The election of the new Executive Committee as well as any matter related to the work of the organization has been done on the basis of the decision and choosing of its members. The Government never accords favourable or unfavourable treatment to an organization as compared to another except registering an organization duly established in compliance with the law. As far as judicial procedures are concerned, all measures are being taken in line with the court decision. Hence, the allegation regarding Government interference is without any foundation whatsoever.
11. 578. Regarding the assets of ETA, the new Executive Committee of the Ethiopian Teachers’ Association has secured a right on the property of the association through a decision of the High Court. The Government as such cannot apportion or reduce the property of the association as it may amount to serious violation of the constitutional right to property. It is only the association which has a right to apportion or dispose otherwise its property.
12. 579. With regard to the allegations of arbitrary transfer or dismissal of ETA members, the Government reiterates once again that the allegations are without any foundation whatsoever. In its previous submissions the Government has provided a detailed response as to the whereabouts of persons allegedly aggrieved by government actions, including those retired because of age, or still working as teachers, or duly compensated. Hence, the Government has no further reply to this matter as the complainants have failed to come up with any update of new specific information on the matter. The new education policy, which is wrongly taken as a cause for the alleged measures, is rather a significant progressive instrument intended to create better conditions for the learning-teaching process including teaching in one’s own mother tongue. Hence, the allegation in this regard is far from reality. The new allegations of the complainant lack substance and are designed to create a negative image by a politically motivated fabrication.
13. 580. With respect to the teachers’ evaluation system, as repeatedly indicated in the country’s responses, the major aim of the teachers’ evaluation system is to promote academic efficiency and capability with a significant involvement of the teacher as a prime mover in obtaining quality education. The system enables teachers, while securing their rights and benefits, to undertake their professional responsibilities and to be accountable to both students and communities. So the functioning of the system has no relation with union membership or non-membership of its users and it has never been used as a pretext for anti-union discrimination.

C. The Committee's conclusions

1. 581. The Committee recalls that this case concerns very serious allegations of violations of freedom of association, which it has examined no less than six times on the merits, without being able to note much progress so far.
2. 582. As regards the trial and conviction of Dr. Taye Woldesmiate, the Committee notes that the appeal against his conviction is pending before the Supreme Court, where it was supposed to be examined on 23 October 2001. Reiterating its previous comments on the need for due process, for trade unionists and other citizens alike [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 102], the Committee requests the Government to ensure that Dr. Taye Woldesmiate be afforded all guarantees to present his defence, and to transmit the decision of the Supreme Court as soon as it is issued. The Committee further requests the Government to keep it informed of developments in the situation, in particular as regards any measure taken to release Dr. Taye Woldesmiate and his co-accused.
3. 583. As regards the Government’s argument on respect for the national judicial process, the Committee recalls that when it requests a government to provide records of judicial proceedings, such a request does not reflect in any way on the integrity or independence of the judiciary. The essence of judicial procedure is that results are known, and confidence in its impartiality rests on their being known [Digest, ibid., para. 23]. Furthermore, although the use of internal legal procedures, whatever the outcome, is undoubtedly a factor to be taken into consideration, the Committee has always considered that, in view of its responsibilities, its competence to examine allegations is not subject to the exhaustion of national procedures [para. 33 of the Procedure of the Committee].
4. 584. The Committee notes with regret that, despite repeated requests to that effect, the Government has not provided any information as regards the killing of Mr. Assefa Maru. It requests it once again to hold an independent inquiry into this serious matter and to keep it informed of developments.
5. 585. In its previous recommendations, the Committee had recalled that teachers, like other workers, should have the right to form organizations of their own choosing and to negotiate collectively; it requested the Government to amend its legislation accordingly and to keep it informed of developments. The Committee notes in this respect that the Government has undertaken a study on the need to amend the labour legislation, which has been discussed in the Tripartite Labour Advisory Board, that amendments relating to trade union pluralism and other subjects are before the Council of Ministers, and that the Law on Civil Service Reform, including the labour rights of civil servants, is before the House of People’s Representatives. Whilst noting this information, the Committee suggests that the Government avails itself of the technical assistance of the Office, as offered on many occasions before, with a view to ensuring the compatibility of new provisions with freedom of association principles. It requests the Government to keep it informed on developments in this respect.
6. 586. In its previous recommendations, the Committee had requested both the Government and the complainants to provide updated information on ETA leaders and members still aggrieved by the Government’s actions as regards charges, detention or harassment due to trade union membership or activities [325th Report, para. 401(c)] and transfers and dismissals [ibid., para. 401(d)]. The Committee is not in a position to examine these allegations as no such information was provided. It requests once again the Government and the complainants to provide updated information on these aspects of the case.
7. 587. From a more general point of view, but germane to the issues raised in the immediately preceding paragraph, the Committee notes the information provided by the Government on the legal framework of freedom of association in the country and its application in practice, and cannot but observe that it is at considerable variance with the latest allegations submitted by the complainants [see 325th Report, paras. 379-390]. These contradictions relate practically to all the remaining substantive issues: interference in the functioning of the ETA, the assets of the ETA, and the use of the evaluation system as a pretext for anti-union discrimination. The Committee will not repeat here the comments it has already made, at some length, in all its previous conclusions and recommendations. Suffice it to say that these are not innocuous issues, and that the Government should seriously consider initiating some positive steps to resolve the deadlock, and ensure that not only the letter of freedom of association is respected, but also that freedom of association principles are applied in practice. This implies the existence of true workers’ organizations, freely chosen by their members, able to function legally and freely without any hindrance from the authorities, and real tripartite dialogue. Noting that, according to the Government, legislative amendments to the Labour Proclamation are before the Council of Ministers and expecting that the legislative amendments considered by the Government will be in conformity with Conventions Nos. 87 and 98, the Committee, once again, suggests that the Government avail itself of the technical assistance of the Office on the matters examined in the present case.