Informe provisional - Informe núm. 342, Junio 2006

412. The complaint is contained in communications, one sent jointly by the Djibouti Union of Workers (UDT) and the General Union of Djibouti Workers (UGDT) and the other from the Djibouti Union of Workers, both dated 4 August 2005, as well as a communication dated 20 May 2006 from the International Confederation of Free Trade Unions (ICFTU) whereby it associates itself to the complaint and provides additional information.

1. 413. The Government sent its observations in a communication dated 15 January 2006.
2. 414. Djibouti has ratified 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. The complainants’ allegations

1. 415. In one of the communications dated 4 August 2005, the complainants allege that following a strike declared by the two trade unions in September 1995 in protest against the implementation of a structural adjustment programme launched by the IMF, which drastically reduced Djiboutian workers’ wages, the Government adopted measures to repress protesters and union officials.
2. 416. The complainants add that the Government has acted in bad faith by failing to abide by the agreement of 8 July 2002, in which the Government undertook to reinstate the dismissed union members. At the time the agreement was signed, 11 union members had been reinstated and ten had not. Their names are included in the agreement of 8 July.
3. 417. The complainants allege that the Government continues to unfairly dismiss union officials and that they are difficult to replace because of the repression against union members.
4. 418. They allege that certain union officials, including the general secretary of the UDT and his deputy, Mr. Adan Mohamed Abdou and Mr. Souleiman Ahmed Mohamed, the treasurer and his deputy, Mr. Badoulkalek Waberi Houffaneh and Mr. Awad Ibrahim Arnaoud, the international relations secretary, Mr. Hassan Cher Hared, the communications secretary and his deputy, Mr. Farah Abdillah Miguil and Mr. Kamil Hassan, are prohibited from working and have been subjected to various forms of harassment, intimidation and blackmail. The friends and families of the union members are also being pressured. In addition, the head of the East African affairs division of Belgium’s Office of the Commissioner General for Refugees and Stateless Persons was severely criticized for meeting union members and the Djiboutian human rights league.
5. 419. The complainants also allege that in November 2004, the Government adopted a new “antisocial” Labour Code, which was drafted unilaterally and is contrary to several international labour Conventions ratified by Djibouti, to human rights, and to the national Constitution; according to the complainants, the Code will effectively eradicate free and independent trade unionism.
6. 420. In addition, the complainants allege that the Government deliberately included bogus union members in Djibouti’s tripartite delegation’s to certain regional and international ILO meetings.
7. 421. The UDT adds the Mr. Hassan Cher Hared, general secretary of the Djibouti Postal Workers’ Union and international relations secretary of the UDT, was unfairly dismissed, after having been subjected to several acts of harassment since 1999 and while he was already being wrongfully penalized by arbitrary suspension without pay.
8. 422. It also alleges that Mr. Hassan Cher Hared lodged three complaints with the Attorney-General of the Republic which has remained unanswered, without any explanation.
9. 423. In its communication dated 20 May 2006, the International Confederation of Free Trade Unions (ICFTU) associates itself to the complaint and provides additional information concerning: the violent suppression of a strike carried out by bus and truck drivers in September 2005, which resulted in numerous arrests and the assassination of a member of the drivers’ union; the prohibition, by order of the Ministry for Employment and Communication, of trade union elections at the national printing press during the year 2005; impediments placed by the Government to the holding and organizing of free trade union elections at all levels; massive arrests and detention of trade union members and leaders from the Union of Port Workers (UTP); the arrest of Mohamed Ahmed Mohamed, responsible for legal affairs at the UTP and Djibril Ismael Egueh, Secretary-General of the Staff Union at the Maritime and Transit Services (SP-MTS), Adan Mohamed Abdou, Secretary-General of the UDT and Hassan Cher Hared, Secretary for International Affairs of the UDT, all of whom were ultimately charged with “delivering information to a foreign power”, apparently related to their participation in or cooperation with a seminar on training in the area of agricultural cooperatives organized in Israel by the International Institute of the trade union Histadrut, a crime that is punishable with up to 15 years’ imprisonment; the barring from entry of an international trade union solidarity mission, despite the formal assurances given by the Minister of the Interior for their unimpeded entry into Djibouti and the subsequent arrest and detention of the unique member of this mission allowed to enter the country, an ILO official.
10. B. The Government’s reply
11. 424. In its communication of 15 January 2006, the Government indicates that the representatives of both complainant organizations are merely politicians and no longer union officials because there have been no elections, so their terms of office have not been renewed since 1997. It states that the union no longer has any members, subscriptions or a democratically elected committee. According to the Government, the last UGTD conference was held on 10 March 1994 and the last UDT conference from 20 to 23 April 1995. These persons therefore have no authority whatsoever to speak on behalf of any Djiboutian trade union. In addition, the Government specifies that between 2000 and 2005, several missions from the ILO and other international organizations working in the field of freedom of association came to Djibouti and freely carried out their fact-finding task.
12. 425. The Government also states that it has offered to reinstate all the workers dismissed in 1995 in their original posts. Some have refused the offers, some have embarked on careers in politics, some have started their own businesses and some have been out of the country for ten years and have freely chosen to live abroad.
13. 426. In response to the allegation regarding Mr. Hassan Cher Hared, the Government states that he was reinstated on 2 August 2005 but that he regularly neglects his duties.

C. The Committee’s conclusions

1. 427. The Committee notes that in this case the complainant organizations have made the following allegations: refusal to reinstate workers dismissed following a strike in 1995; continued unfair dismissal of trade union officials by the Government; harassment of trade union officials and refusal to allow them to work; the adoption of a new “antisocial” Labour Code, which violates the law and serves to eradicate free and independent trade unionism; and favouritism on the part of the Government with regard to trade union representation at regional and international conferences.
2. 428. With regard to the alleged refusal to reinstate workers dismissed following a strike, the Committee recalls that respect for the principles of freedom of association requires that workers should not be dismissed or refused re-employment on account of their having participated in a strike or other industrial action. The dismissal of workers because of a strike, which is a legitimate trade union activity, constitutes serious discrimination in employment and is contrary to Convention No. 98 [see Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, paras. 591 and 593]. The Committee notes that, under the terms of the agreement concluded on 8 July 2002 between the Directorate for Labour and Relations with the Social Partners and the trade union officials who were dismissed, the Government undertook to reinstate the trade union officials concerned. According to the agreement, on that date, ten trade union officials were still awaiting reinstatement. In light of this agreement and the Government’s response in this regard, the Committee requests the Government to provide further information on the situation concerning seven of these individuals: Abdoulfatah Hassan Ibrahim; Hachim Adawe Ladieh; Houssein Dirieh Gouled; Moussa Wais Ibrahim; Abdillahi Aden Ali; Habib Ahmed Doualeh and Bouha Daoud Ahmed. The Committee requests the Government to ensure that all those workers who so wish are reinstated, without loss of wages or benefits, and that those not wishing to be reinstated receive adequate compensation.
3. 429. The Committee notes with regret that the Government has not responded to the allegations of harassment and unfair dismissal of trade union officials. It draws the Government’s attention to the fact that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions [See Digest, op. cit., para. 724] The Committee also considers that the harassment of the friends and families of the trade union officials constitutes a serious threat to the free exercise of trade union rights and, in general, that the Government should take stringent measures to combat such practices. The Committee thus requests the Government promptly to launch an independent inquiry into the allegations of harassment and dismissal of trade union officials, as well as into the alleged pressure on their friends and families and, should evidence be found of such acts having been committed, to take immediately the necessary measures to put an end to such acts of discrimination and harassment and to punish those responsible.
4. 430. With regard to the adoption of a new Labour Code, which, according to the complainant’s, is “antisocial” and violates both international Conventions and the national Constitution, the Committee requests the Government to provide a copy of the text in question.
5. 431. As to the allegation of favouritism in the appointment of worker’s delegates to regional and international conferences, the Committee recalls that any decisions concerning the participation of workers’ organizations in a tripartite body should be taken in full consultation with the trade unions whose representativity has been objectively proved [See Digest, op. cit., para. 943].
6. 432. With regard to representativity, the Committee notes that, according to the Government, the trade union officials in question do not possess the legitimacy required to ensure representation of the workers. The Committee observes, however, that, according to the conclusions of the Credentials Committee of the International Labour Conference, it was only recently (in 2004) that the Government began to challenge the existence of the UDT and UGTD, although it had had, on numerous occasions, to respond to objections submitted by these two organizations [see 92nd Session of the International Labour Conference, Geneva, 2004, second report of the Credentials Committee]. The Committee also notes that, having been presented with a fresh objection by the UDT and the UGTD at the 93rd Session of the International Labour Conference, the Credentials Committee, while remaining concerned by the matter of a “recurring trade union problem” in Djibouti, encouraged the Government to avail itself of ILO technical assistance. Trusting that the efforts of the new Minister would bring about the legal and legitimate representation of workers in Djibouti, the Credentials Committee decided not to propose any action that year with regard to the objection submitted by the UDT and the UGTD [see 93rd Session of the International Labour Conference, Geneva, 2005, third report of the Credentials Committee].
7. 433. The Committee considers, however, that the disputed question of the legitimacy of the UDT and the UGTD to represent Djiboutian workers cannot be examined without particular attention being given to the overall context of respect for trade union rights in Djibouti more generally. It thus notes with deep concern the new allegations recently made by the International Confederation of Free Trade Unions (ICFTU) of serious interference by the Government in trade union activities and internal union affairs, including more specifically: the violent suppression of a strike carried out by bus and truck drivers in September 2005; the prohibition, by order of the Ministry for Employment and Communication, of trade union elections at the national printing press during the year 2005; impediments placed by the Government to the holding and organizing of free trade union elections at all levels; the arrest of Mohamed Ahmed Mohamed, responsible for legal affairs at the UTP and Djibril Ismael Egueh, Secretary-General of the Staff Union at the Maritime and Transit Services (SP-MTS), Adan Mohamed Abdou, Secretary-General of the UDT and Hassan Cher Hared, Secretary for International Affairs of the UDT, all of whom were ultimately charged with “delivering information to a foreign power”, a crime that is punishable with up to 15 years’ imprisonment; the barring from entry of an international trade union solidarity mission, despite the formal assurances given by the Minister of the Interior for their unimpeded entry into Djibouti and the subsequent arrest and interrogation of the unique member of this mission allowed to enter the country, an ILO official. Deploring the information concerning the arrest of an ILO official, the Committee considers this to be a serious and urgent case and urges the Government to reply to these and the other serious allegations raised by the ICFTU without delay so that it may be in a position to examine this case in full knowledge of the facts.
8. 434. Given the wholly contradictory information provided in the communications of the complainant organizations and the Government, the Committee requests the Government to accept a direct contacts mission in order to clarify the situation relating to the legitimate representative nature of the trade unions in Djibouti.
9. 435. As regards the initial allegations relating to the dismissal of Hassan Cher Hared, while noting that, according to the Government, he has been reinstated, the Committee notes with deep concern from the latest allegations that he has now been charged under the Penal Code and trusts that the Government will reply to these allegations without delay.