Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Zimbabwe (Ratification: 2003)

Follow-up of the recommendations of the Commission of Inquiry (complaint made under article 26 of the Constitution of the ILO)

The Committee recalls that the Commission of Inquiry appointed under article 26 of the ILO Constitution to examine the observance by the Government of Convention No. 87 and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), recommended that: the relevant legislative texts be brought in line with Conventions Nos 87 and 98; all anti-union practices – arrests, detentions, violence, torture, intimidation and harassment, interference and anti-union discrimination – cease with immediate effect; national institutions continue the process the Commission had started whereby people can be heard, in particular referring to the Human Rights Commission and the Organ for National Healing and Reconciliation (ONHR); training on freedom of association and collective bargaining, civil liberties and human rights be given to key personnel in the country; the rule of law and the role of the courts reinforced; social dialogue strengthened in recognition of its importance in the maintenance of democracy; and ILO technical assistance to the country continued.

The Committee notes that the ILO technical assistance to support the Government and the social partners in implementing the above recommendations continued throughout 2012 and in this respect, it notes, in particular, that two Zimbabwe Supreme Court judges have participated in a training course on international labour standards, judicial independence and ethics for judges, magistrates, arbitrators and lawyers and that two training workshops on human and trade union rights for the police, security forces and Attorney General’s Office took place in the country. In relation to the Commission of Inquiry’s recommendation that social dialogue be strengthened, the Committee welcomes the Government’s indication that the principles for the Tripartite Negotiating Forum (TNF) legislation were approved by Cabinet. Following the approval, a tripartite consensus building workshop was carried out in July 2012 towards the drafting of the TNF Bill. In order to expedite the drafting process, two internal workshops were undertaken in September and October 2012, and managed to produce a draft which is now with the Attorney-General’s Office which will subsequently pass it to Cabinet and Parliament. The Government indicates that it would need ILO support to hold a workshop to discuss the Bill with social partners, and that it anticipates that by the second quarter of 2013, Parliament would have enacted the TNF Bill. The Government also provides information on the ongoing dissemination of the Kadoma Declaration – “Towards a shared national economic and social vision” which aims at depoliticization of workplaces. Moreover, the Committee notes the Government’s indication that several workshops will be held in the near future, including training workshops for conciliators and arbitrators on freedom of association and collective bargaining Conventions and two training workshops for national employment councils’ councillors drawn from trade unions and employers’ organizations and the promotion of freedom of association and collective bargaining at sector level.

The Committee recalls that it had previously urged the Government to provide information on the steps taken to ensure that the Zimbabwe Human Rights Commission and the ONHR can adequately contribute to the defence of trade union and human rights. The Committee notes the Government’s indication that the Human Rights Bill to operationalize the Human Rights Commission was passed by Parliament and now awaits Presidential assent. The Government has also crafted activities involving the Human Rights Commission and ONHR on issues to deal with human rights in the world of work so as to give effect to the recommendations of the Commission of Inquiry. The Committee requests the Government to provide in its next report detailed information on the outcome of such activities.

Comments made by workers’ organizations. The Committee recalls that it had previously requested the Government to provide its observations on the alleged cases of suspension and mass dismissals of workers following their participation in protests and strikes, as referred to by the International Trade Union Confederation (ITUC) in its 2011 communication. The Committee notes the Government’s indication that it was made aware of these cases through the complaint by the ITUC to the ILO and that no attempt was made to report these cases to the Ministry of Labour for application of domestic remedies given that the law provides for protection of workers from such acts. The Government therefore requests the complainants to approach the Ministry of Labour for redress.

The Committee notes the comments made by ITUC and the Zimbabwe Congress of Trade Unions (ZCTU) on the application of the Convention in their communications dated 31 July and 29 August 2012, respectively, as detailed further below.

Trade union rights and civil liberties. The Committee recalls that it had previously requested the Government to indicate all measures taken or envisaged to ensure safety of Ms Hambira, General Secretary of the General Agriculture and Plantation Workers’ Union of Zimbabwe (GAPWUZ), allegedly forced to exile following threats received for reporting violations of farm workers’ rights, should she decide to return to the country. The Committee notes that in its report, the Government reiterates that the police and courts have confirmed that Ms Hambira has no pending case against her. It is therefore the Government’s view that she is guaranteed safety upon return, like any other citizen of the country. The Committee notes, however, that according to the ZCTU, while the Government, in response to the request made by the Conference Committee on the Application of Standards in June 2011, has committed itself to ensuring Ms Hambira’s safe return, no measures have been taken to that effect. The Committee therefore requests the Government to take the necessary measures to ensure Ms Hambira’s safety upon her return to the country. The Committee requests the Government to provide information on any concrete measures taken or envisaged in this respect.

The Committee further recalls that it had previously noted the allegations submitted by the ZCTU and ITUC relating to the instances of banning of trade union activities (workshops, commemoration events, processions and May Day celebrations) and requested the Government to provide its observations thereon. The Committee notes the Government’s indication that during the abovementioned two training workshops for the law enforcement bodies, the Ministry of Labour and Social Services has brought to the attention of the participants its position regarding the non-application of the Public Order and Security Act (POSA) to trade union meetings. The Government stresses that the few information-sharing sessions involving the law enforcement agencies conducted since July 2011 had a positive impact and that the May 2012 celebrations throughout the country took place without incident. In the Government’s opinion, this vindicates the idea that with more information-sharing activities involving more law enforcement officers across the country, such incidents will be a thing of the past. The Committee notes, however, that at its May–June 2012 meeting, the Committee on Freedom of Association examined Case No. 2862 concerning similar allegations. In this respect, the Committee notes with concern the alleged difficulties faced by the ZCTU in organizing public processions and gatherings to commemorate International Women’s Day and International Labour Day in 2012. The Committee further notes with concern that the ITUC and ZCTU 2012 communications also contain numerous new allegations referring to the obstruction of trade union activities and, in particular, the interruption of trade union activities by the police, interrogations and threats to arrest trade union officials. The Committee requests the Government to provide detailed observations thereon. It expects that the Government will intensify its efforts in ensuring that the POSA is not used to infringe upon legitimate trade union rights, including the right of workers’ organizations to express their views on the Government’s economic and social policy. It also expects that the Government will take the necessary steps to ensure that training on human and trade union rights for the police and security forces continue.

The Committee recalls that it has previously 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 notes that the Government submits in this regard that it was necessary to share information on international labour standards with the law enforcement bodies before a joint review of the application of the POSA could be made with the social partners. The Government informs that the participants of the abovementioned workshops for the law enforcement agencies recommended that in the future, such training activities should include representatives of the social partners. The Government also points out that it is currently engaged with the International Labour Office with regard to a handbook on international labour standards and national law and practice for the use in training by various actors in the labour market. While taking due note of this information, the Committee expects that a full review of the application of the POSA in practice will be carried out together with the social partners without further delay. The Committee further expects that in addition to a training handbook referred to by the Government, clear lines of conduct for the police and security forces will be elaborated and promulgated without delay as has been requested by the Conference Committee on the Application of Standards in June 2011 and more recently by the Committee on Freedom of Association (see 364th Report, June 2012, paragraph 1145). It requests the Government provide information on all measures taken or envisaged in this respect.

Furthermore, the Committee recalls that in its previous observation it had noted the Government’s indication that the POSA, notwithstanding its non-application to trade union meetings, was being amended. Noting copies of two sets of amendments proposed back in 2009, the Committee had requested the Government to clarify the status of these amendments, particularly in the light of the fact that in the framework of the Universal Periodic Review (UPR) 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 (see A/HRC/19/14, Human Rights Council, 12th session, 3–14 October 2011). The Committee notes the Government’s explanation to the effect that while the role of the Ministry of Labour and Social Services is to ensure that the POSA is not applied to trade union activities, its amendment is under the Ministry of Justice purview. Accordingly, the Minister of Justice is best qualified to make pronouncement on the POSA in the context of the UPR. The Government also indicates that the abovementioned amendments of the POSA were proposals emanating from private members and were not initiated by the Government. In the light of the continuing difficulties with the application of the POSA in practice and the Commission of Inquiry’s recommendation that the POSA be brought into line with the Convention, the Committee requests the Government to take the necessary measures, in consultation with the social partners, in order to amend the POSA. It requests the Government to provide information on all concrete steps taken or to be taken in this respect.

The Committee further recalls the Commission of Inquiry’s recommendation that steps be taken by the authorities to bring to an end all outstanding cases of trade unionists arrested under the POSA. It further recalls that in its previous observation it had urged the Government to ensure that cases of trade unionists arrested under the POSA were withdrawn without further delay and to provide detailed information in this respect. The Committee notes that the Government forwards a communication dated 29 March 2012 addressed by the Office of the Attorney-General to the Ministry of Labour, which contains information on criminal cases involving ZCTU members and leaders. According to this report, which groups the cases by regions, following completion of relevant investigations, the prosecution of the accused trade unionists was either declined or charges against them were withdrawn for the lack of evidence. The report indicates, however, that any updates on cases that were referred to the Supreme Court for constitutional applications will be communicated in due course. The Committee notes, however, that in its 2012 communication, the ZCTU indicates that the recommendation of the Commission of Inquiry to bring to an end to all outstanding cases of arrested trade unionists has not been implemented. In the light of this contradicting information, the Committee requests the Government to further engage with the ZCTU on this matter and to indicate how many cases involving trade unionists arrested under the POSA are still pending, particularly before the Supreme Court, and to provide information on all steps taken by the authorities to bring them to an end.

Labour law reform and harmonization. The Committee had previously requested the Government to provide information on all developments and progress made in revising and harmonizing the Labour Act, Public Service Act and all other relevant laws and regulations. The Committee notes the Government’s indication that together with the social partners it had finalized the development of principles for harmonization and review of labour laws, which have now been submitted to Cabinet for consideration. The Government submits a copy of the Memorandum to Cabinet by the Minister of Labour and Social Services on Principles for the Harmonization and Review of Labour Laws in Zimbabwe. The Government reiterates that the thrust of the harmonization and reform process, as reflected in the Memorandum, is essentially to give effect to the comments and recommendations of the Committee. The Government adds that it is anticipated that Cabinet would approve the principles by the end of December 2012. After the approval, the Government intends to hold a consensus building workshop in December 2012 towards the drafting of the labour law reform bill. The Government indicates that it has submitted the concept note to the ILO Country Office in Harare, and calls for ILO support during the workshop, in order to have the confidence of the social partners. The Government anticipates Parliament to enact the new labour law by the third quarter of 2013. The Committee requests the Government to provide information on all developments and progress made in this respect.

The Committee expresses the firm hope that the law and practice will be brought fully into line with the Convention in the very near future and requests the Government to provide, in its next report, detailed information on all other measures taken to implement the recommendations of the Commission of Inquiry. It encourages the Government to continue cooperating with the ILO and the social partners in this regard.