Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Abolition of Forced Labour Convention, 1957 (No. 105) - Zimbabwe (Ratification: 1998)

Article 1(a) of the Convention. Penal sanctions involving compulsory labour as a punishment for the expression of views opposed to the established political, social or economic system. The Committee previously noted a communication received, in September 2009, from the Zimbabwe Congress of Trade Unions (ZCTU), which contained observations concerning the application of the Convention by Zimbabwe. The ZCTU alleged, inter alia, that national laws (such as the Criminal Law (Codification and Reform) Act) contain provisions restricting freedom of expression in criticizing the President and the police, and that workers, as well as citizens in general, are subjected to harassment if they express views contrary to the State. The Committee has also noted the findings, conclusions and recommendations of the Commission of Inquiry appointed under article 26 of the ILO Constitution to examine the observance by the Government of Zimbabwe of 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). It has noted, in particular, the complainants’ allegations concerning, among others, the continual recourse made by the Government to the Public Order and Security Act (POSA) and the Criminal Law (Codification and Reform) Act to repress basic civil liberties and trade union rights, as well as the Commission’s conclusions, in which the Commission, inter alia, expressed the opinion that the way in which the POSA has been used in practice denies trade unions the right to demonstrate.

In its earlier comments, the Committee referred to the following provisions of national legislation, under which penalties of imprisonment (involving compulsory prison labour by virtue of section 76(1) of the Prisons Act (Cap. 7:11) and section 66(1) of the Prisons (General) Regulations, 1996) may be imposed in circumstances falling within Article 1(a) of the Convention:

–      sections 15, 16, 19(1)(b), (c) and 24–27 of the Public Order and Security Act (POSA) (Cap. 11:17) (publishing or communicating false statements prejudicial to the State; making any false statement about or concerning the President; performing any action, uttering any words or distributing or displaying any writing, sign or other visible representation that is threatening, abusive or insulting, intending thereby to provoke a breach of peace; failure to notify the authority of the intention to hold public gatherings, violation of the prohibition of public gatherings or public demonstrations, etc.);

–      sections 31 and 33 of the Criminal Law (Codification and Reform) Act (Chapter 9:23), which contain provisions similar to those of the POSA referred to under the previous point concerning the publishing or communicating false statements prejudicial to the State or making any false statement about or concerning the President, etc.;

–      sections 37 and 41 of the Criminal Law (Codification and Reform) Act (Chapter 9:23), under which sanctions of imprisonment may be imposed, inter alia, for participating in meetings and gatherings with the intention of “disturbing the peace, security or order of the public”; uttering any words or distributing or displaying any writing, sign or other visible representation that is threatening, abusive or insulting, “intending thereby to provoke a breach of peace”; engaging in disorderly conduct in public places with similar intention, etc.

The Committee recalls that Article 1(a) of the Convention prohibits the use of forced or compulsory labour as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. It also refers in this connection to paragraph 154 of its 2007 General Survey on the eradication of forced labour, where it observed that the Convention does not prohibit punishment by penalties involving compulsory labour of persons who use violence, incite violence or engage in preparatory acts aimed at violence. But sanctions involving compulsory labour are incompatible with the Convention if they enforce a prohibition of the peaceful expression of non-violent views that are critical of Government policy and the established political system, whether the prohibition is imposed by law or by an administrative decision. Since opinions and views opposed to the established system may be expressed not only through the press or other communications media, but also at various kinds of meetings and assemblies, if such meetings and assemblies are subject to prior authorization granted at the discretion of the authorities and violations can be punished by sanctions involving compulsory labour, such provisions also come within the scope of the Convention (see, for example, the explanations in paragraph 162 of the General Survey referred to above).

While taking due note of the Government’s statement that courts of law merely impose a prison term and the suitability of an offender to perform labour is determined by the prison authorities, the Committee recalls that the Convention prohibits the use of “any form” of forced or compulsory labour, including compulsory prison labour, as a punishment in respect of the persons covered by Article 1(a).

The Committee therefore expresses the firm hope that the necessary measures will be taken in order to repeal or amend the provisions of the Public Order and Security Act and the Criminal Law (Codification and Reform) Act, in order to bring legislation into conformity with the Convention. Pending the adoption of such measures, the Committee requests the Government to provide information on the application of these provisions in practice, supplying copies of the court decisions and indicating the penalties imposed.

Article 1(d). Penal sanctions involving compulsory labour as a punishment for having participated in strikes. In its earlier comments, the Committee referred to certain provisions of the Labour Act punishing persons engaged in an unlawful collective action with sanctions of imprisonment, which involves compulsory prison labour by virtue of section 76(1) of the Prisons Act (Cap. 7:11) and section 66(1) of the Prisons (General) Regulations, 1996. The Committee noted, in particular, that section 104(2), and (3) of the Labour Act, as amended, not only prohibits collective job action in essential services and in the case of the agreement of the parties to refer the dispute to arbitration, but also provides for other restrictions on the right to collective job action related to procedural requirements, which are equally enforceable with sanctions of imprisonment (involving compulsory prison labour), under sections 109(1), (2) and 112(1) of the Act. Besides, it follows from the wording of section 102(b) of the Act that the Minister can declare essential any service, other than that interruption of which would endanger the life, personal safety or health of the whole or part of the population.

The Committee recalls that Article 1(d) of the Convention prohibits the use of forced or compulsory labour as a punishment for having participated in strikes. It also notes that, in its conclusions referred to above, the Commission of Inquiry expressed concern that the legislation includes disproportionate sanctions for the exercise of the right to strike and an excessively large definition of essential services, which means that a significant number of workers has no right to strike.

The Committee notes the Government’s statement in its report that, in the context of labour law reform, consideration is being made for the review of section 109 of the Labour Act in so far as reference is made to penalties for engaging in unlawful collective job action.

The Committee trusts that the necessary measures will soon be taken to amend the provisions of the Labour Act imposing restrictions on the right to strike enforceable with sanctions involving compulsory prison labour, so as to ensure that no such sanctions can be imposed for the mere fact of organizing or participating in strikes, in order to bring legislation into conformity with the Convention. It asks the Government to provide, in its next report, information on the progress made in this regard.