Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Eswatini (Ratification: 1978)

1. The Committee takes note of the Government’s report. It also notes the comments of 29 March 2007, by the Swaziland Federation of Trade Unions (SFTU) referring to issues under examination.

2. The Committee wishes to recall that for several years it has been referring to provisions of the law that are inconsistent with those of the Convention, or has requested information on the effect given to some provisions in practice. In its previous comments, it asked the Government:

–           to repeal the 1973 Decree/State of Emergency Proclamation and its implementing regulations, concerning trade union rights;

–           to amend the 1963 Public Order Act so that it will not be used to repress lawful and peaceful strikes;

–           to amend the legislation or enact other laws to ensure that prison staff and domestic workers (section 2 of the Industrial Relations Act (IRA)) have the right to organize in defence of their economic and social interests;

–           to amend section 29(1)(i) of the Industrial Relations Act (IRA) placing statutory restrictions on the nomination of candidates and eligibility for union office, to enable such matters to be dealt with in the statutes of the organizations concerned;

–           to amend IRA section 86(4) to ensure that the Conciliation, Mediation and Arbitration Commission (CMAC) does not supervise strike ballots unless the organizations so request in accordance with their own statutes;

–           to recognize the right to strike in sanitary services (at present banned by IRA section 93(9)), and establish only a minimum service with the participation of workers and employers in the definition of such a service;

–           to amend the legislation in order to shorten the compulsory dispute settlement procedures laid down in IRA sections 85 and 86 read in conjunction with sections 70 and 82;

–           with regard to the civil liability of trade union leaders, to continue to provide information on any practical application of section 40, and in particular the charges that may be brought under IRA section 40(13); and

–           to provide information on the effect given in practice to IRA section 97(1) (criminal liability of trade union leaders) and to ensure that penalties applying to strikers under section 88 are proportionate to the seriousness of the offence and that enforcement of section 87 does not impair the right to strike.

3. In this respect, the Committee recalls that in its previous observation it noted that the Government and the social partners signed an agreement undertaking to set up a Special Consultative Tripartite Subcommittee within the framework of the High-level Steering Committee on Social Dialogue. The terms of reference of the Subcommittee are: (1) to review the impact of the Constitution on the rights embodied in Convention No. 87; and (2) to make recommendations to the competent authorities to eliminate the discrepancies between the existing legislative provisions and the Convention. The Committee notes that the High-level Social Dialogue Committee has decided, in respect of the constitutional issues, that the ongoing engagement between the Government and the national Constitutional Assembly, which extended beyond those groups in the Tripartite Subcommittee to involve other interest groups, should not be disturbed. Furthermore, the Committee notes, as regards legislative issues, that the Labour Advisory Board (LAB) of a tripartite nature drafted an Industrial Relations (Amendment) Bill proposing amendments to the IRA in relation to sections 2, 29(1)(i), 85 and 86, taking into account comments made by the Committee (see above). The Committee nevertheless observes that some questions were not included but were pending consultation with the ILO (the right to strike in sanitary services).

The Committee expresses the firm hope that all its comments, and where necessary the technical advice of the Office, will be taken into account in amending the Industrial Relations (Amendment) Bill and that it will be adopted in the near future. It requests the Government to keep it informed of any development in this respect.

Furthermore, the Committee hopes that the Government will take the necessary steps: (1) to abrogate the 1973 Decree/State of Emergency Proclamation and its implementing regulations concerning union rights; (2) to amend the 1963 Public Order Act so that it will not be used to repress lawful and peaceful strikes; and (3) to guarantee that prison staff have the right to organize in defence of their economic and social interests. The Committee encourages the Government to continue its efforts to review and amend the legislation and to provide information on any development in this respect.

4. Report from the Independent Judicial Inquiry. Finally, the Committee takes due note of the report of the Independent Judicial Inquiry set up as recommended by the Committee and which visited Swaziland from 2 to 9 December 2006, to investigate and clarify all the facts on the allegations of the International Confederation of Free Trade Unions (ICFTU, now ITUC – International Trade Union Confederation) according to which, in August 2003, a three-day protest by Swazi labour federations was violently broken up by police using tear gas and rubber bullets, during which a trade unionist was killed. In particular, the Committee notes that the Independent Judicial Inquiry: (1) was not able to conclude that there was a death of a person during the protest action; however, the inquiry declared itself surprised by the fact that no records on casualties and fatalities were available for the days of the protest and indicated that this situation did not help to remove all doubt; and (2) the security forces used force that was disproportionate to the circumstances and this was substantiated by pictures and witnesses. In these circumstances, while noting that the Government has taken note of the findings of the Independent Judicial Inquiry and continues to discuss them, the Committee would like to recall that the authorities should resort to the use of force only in situations where law and order are seriously threatened, and that the intervention of the forces of law and order should be in due proportion to the danger to law and order that the authorities are attempting to control, and governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in disturbance of the peace. The Committee firmly hopes that the Government will guarantee full respect of the principles set out above in the future.