Informe provisional - Informe núm. 362, Noviembre 2011

1. 776. The Committee last examined this case at its June 2010 meeting [see 357th Report, paras 591–628]. By a communication dated 11 March 2011, Education International (EI) submitted additional information related to this case.
2. 777. The Committee has been obliged to postpone its examination of the case on two occasions [see 358th and 359th Reports, paras 7 and 5, respectively]. At its meeting in May–June 2011, the Committee issued an urgent appeal to the Government, indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body (1972), it could present a report on the substance of the case at its next meeting even if the information or observations requested had not been received in due time [see 360th Report, para. 5]. To date, the Government has not sent any information.
3. 778. Ethiopia had 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. Previous examination of the case

1. 779. At its June 2010 meeting, the Committee considered it necessary to draw the special attention of the Governing Body to this case because of the extreme seriousness and urgency of the matters dealt with therein and made the following recommendations [see 357th Report, paras 4 and 628]:
   • (a) The Committee requests the Government to provide all relevant information on the application in practice of the Charities and Societies Proclamation.
   • (b) The Committee once again urges the Government to take all necessary measures to ensure that the appropriate authorities register the NTA without delay so that teachers may fully exercise their right to form organizations for the furthering and defence of teachers’ occupational interests without further delay. It urges the Government to keep it informed of the progress made in this respect.
   • (c) The Committee once again urges the Government to take the necessary steps to ensure that the freedom of association rights of civil servants, including teachers in the public sector, are fully guaranteed. It requests the Government to keep it informed of all progress made in this respect.
   • (d) The Committee urges the Government to initiate without delay an independent inquiry into the allegations of torture and maltreatment of the detained persons, led by a person that has the confidence of all the parties concerned, and if it is found that they have been subjected to maltreatment, to punish those responsible and to ensure appropriate compensation for any damages suffered. The Committee requests the Government to keep it informed of the steps taken in this regard, the results of the inquiry, as well as that of any other investigations that have been carried out in relation to these allegations.
   • (e) The Committee urges the Government to initiate a full and independent investigation into the allegations of harassment in September–November 2007 of Ms Berhanework Zewdie, Ms Aregash Abu, Ms Elfinesh Demissie and Mr Wasihun Melese, all members of the National Executive Board of the complainant organization; as well as over 50 of its prominent activists in order to determine responsibilities, punish the guilty parties and prevent the repetition of similar acts. It requests the Government to keep it informed in this respect.
   • (f) The Committee requests the Government to take the necessary measures without delay in order to ensure the payment of lost wages to Ms Demissie, as well as adequate indemnities or penalties constituting a sufficiently dissuasive sanction against any further act of anti-union discrimination. It requests the Government to keep it informed in this respect.
   • (g) The Committee requests the Government to provide information on the alleged denial of reinstatement of Woldie Dana and Berhanu Aby-Debissa and to reply in substance to the allegations of dismissal of two trade union leaders, Nikodimos Aramdie and Wondewosen Beyene.
   • (h) The Committee requests the Government to conduct an independent investigation into the allegations of harassment of seven trade unionists and to provide a detailed reply as to its outcome.
   • (i) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.
   • (j) The Committee calls the Governing Body’s attention to the extreme seriousness and urgent nature of this case.

B. The complainants’ new allegations

1. 780. In its communication dated 11 March 2011, EI provides additional information related to the obstruction in the registration process of the National Teachers’ Association (NTA) as a professional association, the absence of independent and full inquiries for extrajudicial killings, arbitrary arrests and torture, the pressure to close down union’s regional offices and the adoption of new legislation and regulations depriving the teachers from the public sector of their union rights.
2. 781. In particular, EI recalls that after the NTA was denied registration by the Ministry of Justice, the organization brought the case before the Federal First Instance Court in Addis Ababa. The court dismissed the case considering that the Ministry of Justice should not be sued as it was no longer in charge of registration affairs and that the NTA had to ask a State Agency yet to be formed in line with the newly proclaimed Charities and Societies Proclamation. On 19 April 2010, the Federal High Court upheld this decision.
3. 782. EI indicates that on 2 February 2010, the NTA representatives submitted a new application for registration with the new State Agency, the Charities and Societies Agency (CSA). However, the request for registration was verbally denied by the CSA. The Agency provided similar reasons to those provided by the Ministry of Justice in December 2008: lack of support from the Ministry of Education and from the Ethiopia Teacher Association (ETA), and similarity of the names of the ETA and NTA.
4. 783. The NTA representatives asked the CSA for its response in writing in order to enable the NTA to report the matter to the founding members and to file a petition to the Board of the CSA. The CSA declined the NTA’s request and by doing so, violated article 3.3 of Regulation No. 168/2009 on Charities and Societies, according to which, “When the Agency denies the application for registration it shall notify the applicant in writing by stating the reason for the denial”. Furthermore, according to EI, when acknowledging receipt of the NTA’s request for an official reply, a CSA officer in charge advised the NTA representatives to give him more time in order to sort out the matter through negotiation rather than through written correspondence, which might take longer and cause both parties inconvenience. He also delayed the audience complaining that he was too busy to dedicate time to the NTA.
5. 784. On 16 March 2010, the NTA petitioned to the Director-General of the CSA, but the latter only referred the matter to the same officer, who in turn, informed that he was interviewing government officials in the Ministry of Education, leaders of the new ETA, school principals and teachers in order to see if they would support the formation of a second national teachers association. Verbally, he indicated that the response was negative.
6. 785. On 7 May 2010, NTA representatives requested, in writing, the Director-General of the CSA to take the following actions: (1) order the registration of the NTA and issue a certificate of registration without further delay; or (2) inform the NTA in writing of the refusal to register; and (3) to provide the NTA with the address of the Board of the CSA in order for the NTA to be able to appeal grievances. In this respect, EI explains that according to article 68.2 of Proclamation No. 621/2009 “Where the Agency does not issue a certificate of legal personality or does not make known that it will not issue it, the applicant may apply to the Board not later than 15 days from the time limit prescribed in the sub-article”. Without a written reply from the Agency, the NTA could not exercise its right under this provision.
7. 786. EI further informs that on 28 August 2010, NTA founding members and 15 regional teachers’ delegates agreed to tentatively suspend the attempts for registration until the formation of a new government. However, the elections did not bring change to the composition of the CSA. Therefore, on 12 October 2010, the NTA resumed its endeavour and after obtaining the address of the CSA Board, on 20 October 2010, went to the Board to submit a letter of appeal. The complainant alleges that when the NTA representatives asked the CSA Director-General’s assistant secretary, who accepted the letter of appeal, to sign and stamp the seal of the Board on a copy of the letter, so that it could serve as a receipt for submission, the assistant responded positively. However, while she was signing and stamping the letter, she received a call, allegedly from within the Agency, following which, she erased the stamped seal and returned the letter to the NTA representatives with annulled seal without any explanation. The NTA believes that the assistant secretary has been intimidated.
8. 787. EI indicates that after failed efforts of the NTA representatives to meet the CSA members, they were told on 24 December 2010 that the NTA case was under the investigation by the Institution of the Ombudsman and that they had to wait for its outcome. The CSA officers informed the NTA representatives that they had no mandate to treat cases under investigation by the Ombudsman or the Human Rights Commission, and that the NTA could receive response in writing from the CSA in line with the findings and recommendations to be released by the ombudsman’s office. The CSA officers warned the NTA representatives not to come to the CSA office unless they receive a call or an official letter to do so. The NTA believes, however, that this is a new delaying tactic aimed at preventing the NTA from taking the case to the court, as the steps provided for by the law are not completed yet. The NTA representatives believe that this tactic is designed to wear down the NTA and for teachers to gradually give up their struggle for the establishment of an independent union.
9. 788. EI further informs that as per one of the registration requirements, the NTA had opened temporary offices in some selected regions, taking into account the fact that there should be at least an office in each region where the founding members of NTA came from. The offices are therefore located in the following areas: Addis Ababa, serving as headquarters, Hawassa, Arba-Minch, Ambo, Harar, Dire-Dewa, Baher-Dar, Gonder, Korem and Alemata. Some of the offices are located in rented private properties or private houses of highly committed trade unionists.
10. 789. EI alleges that the NTA representatives face two main problems in this connection. Firstly, they are under surveillance of the government security agents. EI claims that the harassment by security agents and government authorities is exacerbated partly at the request of the new ETA leadership. Their purpose is to intimidate teachers to quit their contact with the NTA and subsequently to force them to give up their longstanding demand for formation of an independent union. Secondly, landlords ask for at least six months of rent to be paid in advance and increase the rent from time to time which the NTA cannot afford, pending its registration as teachers’ union. In addition, some landlords have indirectly been forced by security agents to ask the NTA for license to show for what purpose the NTA uses the offices. The NTA is therefore often forced to move some of its offices or even close some of them down. Furthermore, the NTA is also forced to do so because its representatives have been advised to be vigilante because under the pretext to search offices with no license, security agents and the police could use Proclamation No. 621/2009–Registration and Regulation of Charities and Societies and Proclamation No. 652/2009 on Anti-Terrorism as a legal umbrella to accuse the NTA representatives of violating the legislation in force; they may also break into NTA offices to look for evidence to justify their action and confiscate documents and office equipment, as they had repeatedly done to the former ETA. Moreover, NTA teachers, particularly its founding members and prominent activists, are afraid that security agents in collaboration with the police may accuse them of being guilty of a concocted crime, as it already happened to several colleagues in the former ETA.
11. 790. EI further alleges that despite repeated requests by the Committee on Freedom of Association, no independent inquiries into extrajudicial killings, arbitrary arrests and torture while in detention have been carried out by the Government. EI refers in particular, to the murder on 8 May 1997 of Mr Assefa Maru, Deputy General Secretary of former ETA and Executive Committee Member of the Ethiopian Human Rights Council (Case No. 1888), and torture and mistreatment while in detention of the following trade unionists: Meqcha Mengistu, Anteneh Getnet, Tilahun Ayalew, Bernahu Aba-Debissa, Woldie Dana and Kassahun Kebede. With regard to these trade unionists, EI provides the following information:
    • – Meqcha Mengistu, Chairperson of the former ETA branch and Coordinator of the EI/ETA EFAIDS Programme, had not yet been reinstated in his job following his release;
    • – Anteneh Getnet, Tilahun Ayalew and Berhanu Aba-Debissa are all reported missing. Their respective families have never obtained compensation for the absence of means of survival during their detention;
    • – Woldie Dana had been reinstated in his job; and
    • – Kassahun Kebede fled the country shortly after his release in July 2007.
12. 791. EI also alleges that Kinfe Abate, Wondewosen Beyene and Nikodimos Aramdie activists in the former ETA, dismissed because of their union activities, and Elfinesh Demissie, suspended for 36 days, had not been paid or received any compensation, despite the Committee’s recommendation to this effect.
13. 792. EI indicates that the Government has not yet initiated the amendment of Civil Servant Proclamation No. 377/2004 of 26 February 2004 and of the Labour Proclamation, as requested by the Committee of Experts on the Application of Conventions and Recommendations so as to ensure the right of civil servants, including teachers in public schools, to form and join trade unions.
14. 793. EI also indicates that in addition to Proclamation No. 621/2009 on the Registration and Regulation of Charities and Societies, other legislative texts were enacted which further infringe upon the rights under the ILO Conventions ratified by Ethiopia. These include Council of Ministers’ Regulation No. 168/2009 on Charities and Societies to reinforce Proclamation No. 621/2009; Proclamation No. 652/2009 on Anti-Terrorism, which gave absolute power to the police and security agents, allowing them to take any action against a person or an organization suspected of terrorism. As a result, many teachers had distanced themselves from union activities fearing that those activities might be perceived to be political or touch upon the government’s affairs. Finally, EI alleges that, according to the Ruling Party Publication for the Senior Cadres, which is a “political directive book issued by the Ethiopian People’s Revolutionary Democratic Front (EPRDF)”, no independent trade unions or civil organizations are allowed to act in Ethiopia.
15. 794. EI concludes by alleging that the Ethiopian Government has not taken any steps to ensure the right of civil servants, including public teachers, to defend their occupational interests through neutral collective bargaining.

C. The Committee’s conclusions

1. 795. The Committee deeply regrets that, despite the time that has elapsed since the last examination of this case by the Committee, the Government has not provided any new information nor replied to the complainant’s allegations, although it has been invited on several occasions, including by means of an urgent appeal, to present its comments and observations on the case. The Committee therefore urges the Government to be more cooperative in the future.
2. 796. Under these circumstances, and in accordance with the applicable rules of procedure [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee finds itself obliged to present a report on the substance of the case without the benefit of the information which it had hoped to receive from the Government.
3. 797. The Committee recalls that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to promote respect for this freedom in law and in fact. The Committee remains confident that, if the procedure protects governments from unreasonable accusations, governments on their side will recognize the importance of formulating for objective examination detailed replies concerning allegations made against them [see the First Report of the Committee, para. 31].
4. 798. At the outset, the Committee recalls that the present case refers to the allegations relating to the exclusion of teachers in the public sector from the right to join trade unions by virtue of the national legislation; refusal to register the NTA (previously ETA) and interference in its administration and activities; and harassment, arrest, detention and maltreatment of teachers in connection with their affiliation, first to the ETA, and now to the NTA. The Committee further recalls that it has been addressing very serious allegations of violations of freedom of association involving governmental interference in the administration and functioning of the ETA, and the killing, arrest, detention, harassment, dismissal and transfer of members and leaders of ETA since November 1997 (see Case No. 1888).
5. 799. The Committee notes the information submitted by EI. With regard to the registration of the NTA (recommendation (b)), the Committee recalls that the Government has previously referred to the newly adopted Charities and Societies Proclamation establishing the CSA, a registering authority, and in this respect indicated that the NTA could submit its request for registration to the CSA and, if registration was denied, the NTA had a right to submit a complaint to the court. The Committee notes with deep concern the information submitted by EI according to which, despites numerous attempts to that effect before the CSA and its Board, the NTA remains without registration,. The Committee notes that in the absence of an official communication stating that the registration is denied and indicating the reasons therefore, the NTA cannot submit a complaint to the court. The Committee deeply deplores that three years after the NTA’s request for the registration, this organization is still not registered. It recalls that the right to official recognition through legal registration is an essential facet of the right to organize since that is the first step that workers’ or employers’ organizations must take in order to be able to function efficiently, and represent their members adequately [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 295]. The Committee once again draws the Government’s attention to its responsibility in ensuring that this right is respected in law and in practice. While noting that the issue is currently being examined by the ombudsperson, the Committee strongly urges the Government to take all necessary measures to ensure that the appropriate authorities register the NTA without delay so that teachers may fully exercise their right to form organizations for the furthering and defence of teachers’ occupational interests without further delay. It urges the Government to keep it informed in this respect.
6. 800. With regard to the Charities and Societies Proclamation (recommendation (a)), the Committee notes that in its report to the Committee of Experts on the Application of Conventions and Recommendations, the Government indicated that the law was promulgated after extensive public discussions involving all stakeholders, and entered into force after the expiry of the period of time which was given to associations and various charities and societies to align themselves with its requirements. According to the Government, the Charities and Societies Proclamation aims at enhancing the participation of civil society organizations in developmental efforts of the country; it clearly defines and regulates charities and societies and provides the necessary safeguards and due process in the framework of democratization efforts; and no trade union or related association raised complaints on being aggrieved or restrained by this new law. The Committee notes that in its 2010 comments, the Committee of Experts noted with concern that the Charities and Societies Proclamation organizes an ongoing and close monitoring of the organizations established on its basis and gives governmental authorities great discretionary powers to interfere in the registration, internal administration and dissolution of the concerned organizations with respect to those falling within its scope, which appear to encompass civil servants, including teachers and that a number of provisions of the Proclamation raise issues of compatibility with the Convention. The Committee therefore strongly urges the Government to take the necessary measures, without delay, to ensure that the Charities and Societies Proclamation is not applicable to workers’ and employers’ organizations and that such organizations are ensured effective recognition through legislation which is in full conformity with the Convention. The Committee requests the Government to provide information on all steps taken in this regard.
7. 801. The Committee further notes EI’s indication that Council of Ministers’ Regulation No. 168/2009 on Charities and Societies to reinforce Proclamation No. 621/2009; Proclamation No. 652/2009 on Anti-Terrorism, as well as the Ruling Party Publication for the Senior Cadres, according to which no independent trade unions or civil organizations are allowed to act in Ethiopia, further infringe upon the rights under the ILO Conventions ratified by Ethiopia. The Committee expresses its concern at the allegation that the Proclamation on Anti-Terrorism gave an absolute power to the police and security agents, allowing them to take any action against a person or an organization suspected of terrorism. The Committee notes that EI further alleges that the Government has not yet initiated the amendment of Civil Servant Proclamation No. 377/04 of 26 February 2004 and of the Labour Proclamation, as requested by the Committee of Experts on the Application of Conventions and Recommendations so as to ensure the right of civil servants, including teachers in public schools, to form and join trade unions. The Committee urges the Government to provide all relevant information on the application in practice of the Council of Ministers’ Regulation to reinforce Charities and Societies Proclamation, as well as on Proclamation No. 652/2009 on Anti-Terrorism. It requests the Government to take the necessary measures to ensure that the existing legislation in general, and the Anti-Terrorism Proclamation, in particular, are not used in practice to intimidate and harass trade unionists. The Committee strongly urges the Government to take the necessary steps to ensure that the freedom of association rights of civil servants, including teachers in the public sector, are fully guaranteed. It urges the Government to keep it informed without delay of all measures taken in this respect.
8. 802. The Committee notes with deep regret the complainant’s allegation that no independent inquiries into extrajudicial killings, arbitrary arrests and torture while in detention have been carried out by the Government (recommendation (e)). The Committee therefore once again urges the Government to initiate without delay an independent inquiry into the allegations of torture and maltreatment of the detained persons, led by a person that has the confidence of all the parties concerned, and if it is found that they have been subjected to maltreatment, to punish those responsible and to ensure appropriate compensation for any damages suffered. The Committee urges the Government to keep it informed without delay of the steps taken in this regard, the results of the inquiry, as well as that of any other investigations that have been carried out in relation to these allegations.
9. 803. With regard to the cases of dismissals and suspension (recommendations (f) and (g)), the Committee notes with concern the complainant’s allegation that except for Woldie Dana, who has been reinstated in his job, other trade unionists have not been. In particular, EI alleges that Kinfe Abate, Wonderwosen Beyene and Nikodimos Aramdie have not been reinstated or paid any compensation. In this respect, the Committee recalls that as regards the dismissal in 1995 of Kinfe Abate, it had previously requested the complainants to provide relevant and detailed information in respect of this dismissal [see 353rd Report, para. 1010]. The Committee once again invites the complainant to provide further information in this respect. The Committee further notes that according to EI, Berhanu Aby-Debissa is reported missing. In these circumstances, the Committee once again urges the Government to provide without delay information on the alleged denial of reinstatement of Nikodimos Aramdie and Wondewosen Beyene.
10. 804. Noting with regret that according to EI, the wages lost during the 36 days of illegal suspension have not yet been paid to Elfinesh Demissie, the Committee urges the Government to take the necessary measures without delay in order to ensure the payment of lost wages to Ms Demissie, as well as adequate indemnities or penalties constituting a sufficiently dissuasive sanction against any further act of anti-union discrimination. It urges the Government to keep it informed in this respect without delay.
11. 805. The Committee notes with regret new allegations of harassment submitted by EI, which includes surveillance and intimidation of the NTA activities. The Committee requests the Government to provide its observations thereon. The Committee once again urges the Government to initiate a full and independent investigation into the allegations of harassment in September–November 2007 of Ms Berhanework Zewdie, Ms Aregash Abu, Ms Elfinesh Demissie and Mr Wasihun Melese, all members of the National Executive Board of the complainant organization; as well as over 50 of its prominent activists in order to determine responsibilities, punish the guilty parties and prevent the repetition of similar acts. It requests the Government to keep it informed in this respect.
12. 806. The Committee further urges once again the Government to conduct an independent investigation into the allegations of harassment of seven trade unionists which occurred between February and August 2008 and to provide a detailed reply as to its outcome.
13. 807. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.