Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 364, Juin 2012

1. 1125. The complaint is contained in communications dated 6 May 2011 and 7 and 21 May 2012 from the Zimbabwe Congress of Trade Unions (ZCTU).
2. 1126. The Government provided its observations in communications dated 17 October 2011 and 13 February 2012.
3. 1127. Zimbabwe 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 complainant’s allegations

1. 1128. In its communication dated 6 May 2011, the ZCTU explains that it had joined the rest of the world in commemorating International Women’s Day. Prior to this, on 18 February 2011, it notified the police office in Harare of its intention to hold a commemoration of International Women’s Day scheduled for 12 March 2011. The commemoration was to begin by a workers’ procession from Mufakose Shops to Rutendo Hall, which was the commemoration venue. However, on 8 March 2011, the police responded to the ZCTU notification by stating that “only the commemoration has been approved and no processions should be allowed to take place”. As a result of the police ban on processions, the commemoration was held without the procession.
2. 1129. The ZCTU further alleges that on 28 February 2011, it notified the police officer commanding Bulawayo West District of its intention to commemorate International Women’s Day. The commemorations were to begin by a procession. On 3 March 2011, the police officer chief superintendent responded by banning the procession. The issue of the gathering was referred to the officer commanding Bulawayo West District, but on 4 March 2011, he declined to permit the gathering on the ground that there was a spate of violence in the country and that the ZCTU had not complied with section 25(2) of the Public Order and Security Act (POSA). On 7 March 2011, the ZCTU, through the Zimbabwe Lawyers for Human Rights, made an application to the Magistrate Court in Bulawayo to have the police ban lifted and the gathering declared lawful. The court duly granted the order for the commemoration and procession to go ahead as planned. Despite the court order, on 8 March, about 30 police officers dressed in riot gear wielding baton sticks disrupted the event and arrested 19 trade union officers. Another group of about 20 police officers invaded the location and did not permit participants to gather, yet another group of 17 raided the ZCTU Bulawayo offices and ordered people not to gather. As a result of the police’s defiance of the court order, the commemoration did not take place.
3. 1130. The ZCTU alleges that on 11 April 2011, its Mutare office notified the Mutare police of its intention to commemorate International Labour Day and requested a police escort during the procession. On 13 April, a police officer chief superintendent replied by banning the procession for security reasons. Furthermore, on 19 April 2011, the ZCTU notified the Harare police in the Southern District of its intention to commemorate the workers’ day by organizing a procession. However, the officer commanding the Southern District replied by banning the procession. The ZCTU also received reports that processions were banned in Masvingo and Chegutu. In order to protect its fundamental rights to freedom of assembly, expression and association, the ZCTU made an application to the High Court seeking an order to declare the police decisions unlawful and enable the union processions to be held in all 38 districts where the ZCTU had organized May Day celebrations. The High Court granted the order on 29 April 2011. As a result of this order, processions were later held in most cities and towns, except Masvingo.
4. 1131. The ZCTU concludes by stating that it is clear from the POSA that trade unions are not bound to notify the police of the conduct of its activities and the police have no right to ban such activities. The courts have repeatedly confirmed this, but the Government has since developed a “hobby of ignoring the court orders”. The ZCTU considers that such attitude by the Government is in violation of Article 3 of Convention No. 87.
5. 1132. By its communications dated 7 and 21 May 2012, the ZCTU informs the Committee of the difficulties it had faced in organizing public processions and gatherings to commemorate International Women’s Day and International Labour Day in 2012. In particular, it alleges that the police in Bulawayo banned the procession scheduled by the ZCTU for 8 March 2012. With regard to May Day, the complainant alleges that while the Kwekwe district police, allowed the commemoration under strict conditions, it banned the procession. Only after the intervention by the Ministry of Labour and Social Services was the ban on the procession lifted, on 30 April at about 7 p.m., which made it difficult for the union to communicate the lifting of the ban to its members. The ZCTU also alleges that it had approached the High Court with an urgent application seeking an order to protect trade union rights. To the union’s surprise, the High Court held that a ban on workers’ fundamental right to freedom of association, expression and movement cannot be treated as an urgent matter. The ZCTU also describes in detail the incident which occurred in Harare on May Day where following a peaceful procession and gathering, a soccer match between two trade union football teams was organized as part of the May Day celebrations. The match was stopped by the police at 5.15 p.m., about 15 minutes before its end, because the ZCTU’s notification to the police indicated that the event was to end at 5 p.m. The ZCTU alleges that the police conduct was a deliberate move aimed at provoking ZCTU members and inciting them to retaliate and cause violence. Finally, the complainant alleges that its regional officer was summoned to Southerton police for a meeting where he was interrogated for two and half hours in respect of the May Day events and celebrations.

B. The Government’s reply

1. 1133. In its communication dated 17 October 2011, the Government submits that the issues pertaining to the allegations of the banning of trade union activities are part and parcel of the matters that are progressively being attended to in the context of the broader initiatives by the Government to improve its compliance with Convention No. 87, in line with the recommendations of the 2009 Commission of Inquiry. These initiatives are being implemented under the technical assistance package that was launched in August 2010. The Government states that it is unfortunate that the technical assistance suffered a delayed implementation due to unforeseen administrative challenges encountered by the Ministry of Labour in the last quarter of 2010. The Government has, however, renegotiated the technical assistance package with the Office in January 2011 and the activities commenced in July 2011.
2. 1134. The Government points out that one of the core activities in the technical assistance package concerns information sharing between ILO officials and the state actors who interface with organized labour directly and indirectly. The objective is to familiarize these officials with the principles enshrined in Convention No. 87 so as to allow workers to organize their activities in full freedom. Issues relating to the application of the POSA to trade union meetings, the thin dividing line between trade unionism and politics, and the extent of political agitation by labour form the core elements of discussion with the target group during the information sharing workshops.
3. 1135. The Government reports that two information sharing sessions have so far been undertaken and that it was engaged with the targeted participants with a view to undertaking the last information activity with the state actors in 2011. It is the Government’s view that the situation of the interface between trade unionists and the state actors is expected to progressively improve once a significant critical mass of the targeted group is reached. The Government also intends, within the realm of the technical assistance package, to develop a customized handbook on the ILO core Conventions, national legislation and practice and the respective roles of the state actors in industrial relations and is currently working with the Office in this regard. In the Government’s opinion, this will go a long way in addressing the concerns of the use of the POSA with regard to trade union activities since the handbook will be mainstreamed in the training programmes of the state actors.
4. 1136. The Government points out that the impact of these activities will be realized progressively, as the Government gradually implements the activities under the technical assistance package. There is therefore a need for continued support from the Office. The Government remains committed to work with both the Office and the ILO supervisory bodies in implementing the recommendations of the Commission of Inquiry and improving compliance with the ratified ILO instruments in general.
5. 1137. With regard to the facts of the case, in its communication dated 13 February 2012, the Government indicates that the police had indeed sanctioned the holding of the International Women’s Day commemorations for Harare and Bulawayo, as well as May Day celebrations in the cities mentioned in the complaint. The police, however, did not permit the holding of processions. The Government explains that the period in question coincided with the beginning of the Arab Spring uprisings, hence, most States, including Zimbabwe, had to take precautionary measures for the protection of law and order. The Government points out that the ZCTU was cleared to hold celebrations and commemorations. It is the Government’s view that the banning of processions was a temporary measure meant to protect the peace and security of the country during the period in question and was not intended to violate the rights of trade unions.
6. 1138. The Government stresses that through the workshops conducted under the ILO technical assistance package there has been dialogue and interface with the law enforcement bodies on the nexus between international labour standards and the national laws and practice. The Government will seek to concretize on the gains of the interaction and positive outcomes of the workshops through reaching out to more participants from the law enforcement bodies with a view to improving their interaction with trade unions. The Government anticipates that incidents such as those outlined in the complaint will gradually diminish as the knowledge on international labour standards cascades to more representatives of the law enforcement bodies. The Government hopes that the ILO will assist the Government in extending the knowledge gained in the workshops to more law enforcement officials for progressive improvement in their interactions with trade unions across the country. The Ministry of Labour and Social Services has also taken the initiative for continued interface with the law enforcement bodies in various provinces of the country with a view to establishing collaboration on the ground regarding the exercise of trade union rights. The Government hopes that through these interactions, the ZCTU will find it convenient not to seek police permission to conduct their meetings as provided under the POSA.

C. The Committee’s conclusions

1. 1139. The Committee notes that in it communication dated 6 May 2011, the ZCTU alleges that it was prevented from holding International Women’s Day and International Labour Day processions and that even after the High Court allowed May Day processions, the police in some cities refused to comply with the court order. The Committee notes that the Government does not dispute the alleged facts and expresses the view that the banning of processions was a temporary measure adopted by the police, meant to protect the peace and security of the country during the period in question and was not intended to violate the rights of trade unions.
2. 1140. The Committee recalls that in its 2009 report, entitled “Truth, reconciliation and justice in Zimbabwe”, the Commission of Inquiry, appointed under article 26 of the Constitution of the International Labour Organization to examine the observance by the Government of Zimbabwe of Conventions Nos 87 and 98, examined the allegation of systematic infringements of freedom of assembly and demonstration in relation to the implementation of the POSA and describing, in particular, situations similar to those raised in the present case. In this respect, the Committee notes the following relevant paragraphs of the Commission’s report:
   • 133. Part IV of the POSA concerns public gatherings, defined under section 2, so as to include processions, public demonstrations and meetings. Sections 23 and 24 place an obligation on organizations to appoint conveners and authorized officers, in the case of processions and public demonstrations, and responsible officers, in the case of public meetings, who are responsible for giving notice of the public gathering. A failure to give notice of a gathering constitutes an offence and is punishable by a fine not exceeding level 12 and/or imprisonment for a period not exceeding one year. Section 26 provides for consultations and/or negotiations between a regulating authority and a convener or an authorized officer, if necessary, on amendment of notices and conditions with respect to public gatherings so as to avoid public disorder. The section also provides that a person who opposes or fails to comply with a prohibition notice or any directions or conditions, under which a gathering is authorized, shall be guilty of an offence and liable to a fine not exceeding level 14 and/or to imprisonment for a period not exceeding one year. However, the abovementioned sections (23, 24 and 26) do not apply to gatherings of a class described in the Schedule (section 26A), which includes public gatherings of members of professional, vocational or occupational bodies held for purposes which are not political (paragraph (c)); held by any club, association or organization which is not of a political nature and at which the discussions and matters dealt with are not of a political nature (paragraph (i)); held by a registered trade union for bona fide trade union purposes for the conduct of business in accordance with the Labour Relations Act (paragraph (j)); or held to form any club, association or organization which is not of a political nature (paragraph (k)).
   • 134. Section 27 provides for a temporary prohibition on holding processions and public demonstrations within particular police districts so as to prevent public disorder. To that end, a regulating authority can issue an order for a period not exceeding one month. The Minister of Home Affairs may, on appeal, confirm, vary or set aside the order or give any other order in the matter as s/he thinks just. Any person who organizes, assists in organizing, takes part in, or attends any procession or public demonstration held in contravention of an order under this section shall be guilty of an offence and liable to a fine not exceeding level six and/or to imprisonment for a period not exceeding one year. Section 27A provides for a prohibition of all gatherings within a radius of between 20 and 100 metres of Parliament, courts and protected places (with the exception of gatherings of persons who are employed at institutions), unless special permission has been granted.
   • 135. Any prohibition notice, directions or conditions imposed pursuant to section 26, as well as an order issued in terms of section 27, may be appealed to the Magistrates’ Court, although such an appeal will not have the effect of suspending any prohibition order appealed against (section 27B), unless and until the court so orders.
   • 269. ... It was made known to the Commission that section 24 of the POSA required organizers of “public gatherings” to notify the police of those events except, inter alia, in relation to public gatherings “held by a registered trade union for bona fide trade union purpose for the conduct of business in accordance with the Labour Relations Act”. The ZCTU and Attorney-General both noted that in law the POSA explicitly did not apply to trade union gatherings for trade union – rather than political – purposes.
   • 274. The Co-Ministers of Home Affairs, responsible for the POSA, noted that since the establishment of the inclusive Government they had clarified through the press the legal procedure to be followed if people wanted to express themselves through demonstration. The Permanent Secretary stated that the problem with the POSA was that it was not sufficiently understood; the police must be informed of a demonstration rather than permission being sought, as the duty of the police was to protect both demonstrators and the general public. With regard to the suggestion that the POSA be repealed or modified, a Co-Minister considered that the POSA should stay, but perhaps not in its present form. He explained that steps were being taken to modify the law to give people more space and freedom, indicating that new draft legislation would be presented to Parliament when it reconvened.
   • 559. In relation to both trade union meetings and public demonstrations organized by trade unions, the Commission was informed that the operation of the POSA in practice seriously interfered with the right of trade unions in relation to such events. While being aware that the POSA did not formally apply to trade unions carrying out trade union activities, the Commission was informed that it had been held, in practice, to apply to most trade union gatherings.
   • 560. The basis for this application appears to be the belief by the authorities that the ZCTU was exceeding its trade union role when it organized public demonstrations on matters touching upon social and economic issues. The Commission wishes to categorically state that the exercise by trade unions of the right to demonstrate includes the right to freedom of expression in relation to matters of social and economic issues. In this regard, the Commission must reiterate the principle developed by the ILO supervisory bodies that the freedom of expression which should be enjoyed by trade unions and their leaders should also be guaranteed when they wish to criticize the Government’s economic and social policy.
   • 561. The Commission received much documentation and many statements concerning the way in which the requirement under the POSA of permission being granted by the police for trade union gatherings violated the Conventions. The Commission was told that ZCTU public meetings and demonstrations were almost uniformly refused by the authorities, and that trade union meetings, labour forums and conferences were, if allowed, subjected to the imposition of stringent conditions. In addition, the Commission is aware of the penal sanctions applicable to trade unionists who are found to be in contravention of the POSA and considers this to be a serious impediment to the right to demonstrate.
   • 562. In this regard, the Commission is of the opinion that the way in which the POSA has been used in practice denies trade unions the right to demonstrate.
3. 1141. While noting the Government’s explanation on the temporary nature of the banning of trade union demonstrations or processions, the Committee notes with concern the ZCTU’s communication dated 7 and 21 May 2012, in which the complainant organization describes in detail the difficulties it had faced in organizing and holding public processions, gatherings and celebrations to commemorate International Women’s Day and May Day 2012. The committee request the Government to provide its observations thereon. The Committee deeply regrets that two years following the acceptance by the Government of Zimbabwe of the Commission’s conclusions and recommendations, the POSA continues to be used in practice so as to infringe upon the right of trade unions to organize such events. The Committee recalls that the right to organize public meetings and processions, particularly on the occasion of May Day, constitutes an important aspect of trade union rights [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 136]. The Committee notes the Government’s indication that the Ministry of Labour and Social Services initiated an interface with the law enforcement bodies in various provinces of the country with a view to establishing collaboration on the ground regarding the exercise of trade union rights. The Committee expects that the Government will intensify its efforts in this respect so as to ensure that the POSA is not used to infringe upon legitimate trade union rights and requests the Government to provide information on all concrete measures, undertaken under the abovementioned initiative, aimed at ensuring that trade unions may freely organize peaceful demonstrations and that permission to hold processions and demonstrations is not arbitrarily refused.
4. 1142. Further in this connection, the Committee observes that the 2011 Conference Committee on the Application of Standards requested the Government to carry out, together with the social partners, a full review of the application of the POSA in practice, and considered that concrete steps should be taken to enable the elaboration and promulgation of clear lines of conduct for the police and security forces with regard to human and trade union rights. The Committee therefore expects that a full review of the application of the POSA in practice has been carried out together with the social partners and requests the Government to inform it of the outcome. If this has not yet been done, the Committee urges the Government to do so without delay. The Committee further expects that clear lines of conduct for the police and security forces will be elaborated and promulgated without delay. It requests the Government to keep it informed in this respect.
5. 1143. The Committee recalls that the Commission of Inquiry recommended that the POSA be brought in line with Convention No. 87. In this respect, the Committee notes from the 2011 observation on the application of Convention No. 87 in Zimbabwe that the Government had indicated to the Committee of Experts on the Application of Conventions and Recommendations (CEACR) that the POSA, notwithstanding its non-application to trade union meetings, was being amended. The CEACR noted, however, that in the framework of the Universal Periodic Review process of the United Nations Human Rights Council, the Government of Zimbabwe had clearly indicated that it did not support the recommendations calling for the amendment of the POSA. The Committee, like the CEACR, requests the Government to clarify whether the POSA is being considered for amendment and, if so, the status thereof.
6. 1144. The Committee recalls that in the light of its findings, the Commission of Inquiry also recommended that the Government ensure that training, education and support be given to key institutions and personnel in the country, most notably the police and security forces, in relation to freedom of association and collective bargaining, civil liberties and human rights. In this respect, the Committee notes that the Government refers to the activities that have taken place in 2011 under the ILO technical assistance package and underlines their importance and impact. The Committee deeply regrets, however, that since the launch of the ILO technical assistance package in August 2010, only one training course on human and trade union rights for the police and security forces has taken place, as appears from the abovementioned CEACR observation. The Committee, like the CEACR, firmly expects that the Government will take the necessary steps without delay to ensure that trainings on human and trade union rights for the police and security forces are intensified and requests the Government to keep it informed in this regard.