Definitive Report - Report No 66, 1963

Case No 290 (Democratic Republic of the Congo) - Complaint date: 29-MAR-62 - Closed

1. 34. In the months of March and April 1962 a series of complaints bearing on the same events were lodged with the I.L.O directly, concerning alleged infringements of trade union rights in the Congo (Leopoldville).
2. 35. These complaints were lodged by the following organisations: the I.F.C.T.U, the Congolese Workers' Union (U.T.C.), the African Trade Union Confederation and the Pan African Union of Believing Workers. The complaint of the I.F.C.T.U is contained in six communications dated 29 March, 30 March, 4 April, 5 April, 13 April and 24 April 1962 respectively; the complaint of the Congolese Workers' Union is contained in two communications dated 29 March and 10 April 1962 respectively; the complaint of the African Trade Union Confederation is contained in six communications dated 2 April, 5 April, 6 April, 7 April (two communications) and 11 April 1962 respectively; and the complaint of the Pan African Union of Believing Workers is contained in a communication dated 10 April 1962.
3. 36. According as they were received, all these communications were forwarded to the Government for its observations. The Government submitted observations in a communication dated 19 May 1962 which was received too late to enable its contents to be considered by the Committee at its 31st (May 1962) Session.

A. A. The complainants' allegations

1. 37. The allegations of the complainants, which are supported by a very voluminous amount of evidence, fall under two main heads-the arrest of leaders of the U.T.C in connection with a strike and the confiscation of records (card indexes) and documents belonging to that organisation. Before these specific allegations are examined as such, however, it is desirable to outline the course of events which led up to these alleged happenings.
2. 38. In the evaluation given by the complainants these events were as follows. Having found that the country's social and economic position was far from satisfactory, the Government decided in the course of 1961 to launch a policy of austerity to cope with this position. The U.T.C gave its support to this austerity policy on condition that it would affect all sectors of the population. Since the implementation of the austerity programme was unduly delayed, the Third National Congress of the U.T.C, which met in December 1961, adopted a resolution in which the U.T.C stated, first, that it regarded the implementation of the austerity policy as being the only way of bringing about an improvement in the country's economic and social position, and, second, called on the Government to prepare austerity measures and to apply them before the end of the month of March 1962. Subsequently the U.T.C specified that it wanted to see established a national commission on the austerity programme, in whose work the unions would participate.
3. 39. Since the Government had still taken no action an extraordinary meeting of the National Committee of the U.T.C was convened in mid-March 1962 to define the U.T.C objectives and give official notice expiring on 31 March of a general strike for 1 April.
   • Allegations relating to the Arrest of Leaders of the U.T.C.
4. 40. It is alleged that the Government did not act on the workers' claims and that the U.T.C maintained its general strike warning which was due to expire on 31 March. The strike was to last two days - 2 and 3 April - and was to be a peaceful one; the instructions given by the Union to its members were to remain at home during the two days of the strike.
5. 41. Mr. André Bo-Boliko, President of the U.T.C, was then detained by the Criminal Investigation Department on 29 March. After questioning he is alleged to have been arrested and imprisoned in Malaka gaol.
6. 42. Although according to the complainants the Congolese workers were taking action only to denounce the inactivity of the Government, which had been aware for three months of the workers' legitimate claims as put forward by the U.T.C, the Minister of the Interior tried to justify Mr. Bo-Boliko's arrest in a speech which was broadcast on 30 March 1962. It is alleged that in that speech the Minister asserted that the U.T.C was trying to cause riots to bring down the Government and that the activities of the U.T.C were under remote control by foreign influences; it is also alleged that the Minister added that the Government was resolved to use every means of breaking the strike called for 2 and 3 April.
7. 43. The complainants also allege, firstly, that Mr. Bruno Ngoy, a permanent official of the U.T.C, was arbitrarily arrested by the mayor of the municipality of Bandalungwa, and, secondly, that two secretaries of the U.T.C, Messrs. Bernard Tampungu and Modeste Mayapa, were arrested by the authorities of Stanleyville. The complainants stated in a later communication that the two persons last mentioned had been acquitted by the court.
8. 44. In its reply the Government stated that Mr. Bo-Boliko's arrest was decided upon by the Public Prosecutor in response to a complaint lodged by the Criminal Investigation Department. The Government states that the President of the U.T.C was prosecuted under section 186 of the Penal Code, which is directed against " any person who arouses the people against the public authorities either by speeches or in public places or by writings, printed matter or any pictures or emblems whatsoever that are posted up, distributed, sold, to be on sale or placed on view to the public ". The Government states that these provisions are intended to ensure not only the security of the State but also the public peace. The Government goes on to say that the atmosphere of social agitation prevailing in the months of March and April 1962, together with certain signs of interference from outside the trade union movement, and even from outside the country, led the Criminal Investigation Department and the police to take the necessary action to nip any agitation in the bud. For the same reasons and because it was necessary to carry out a preliminary judicial inquiry, these authorities deemed it essential to place Mr. Bo-Boliko under preventive detention until the courts gave a decision. The Government states that the case was decided by the Court of First Instance; it acquitted Mr. Bo-Boliko, who was released as soon as the acquittal had been pronounced.
9. 45. With regard to Mr. Bruno Ngoy, who was said to have been arrested by the mayor of the municipality of Bandalungwa, the Government stated that it had the prisoner concerned released as soon as it was informed of the matter. The Government adds that the facts were immediately brought to the notice of the Public Prosecutor in order that he might institute legal proceedings against the civil servant responsible if the preliminary judicial inquiry showed that the arrest had been an arbitrary one.
10. 46. With regard to Messrs. Bernard Tampungu and Modeste Mayapa, who had been arrested by the provincial authorities of Stanleyville, the Government states once again that it had the persons concerned released as soon as it was informed of their arrest. It has already been seen that the persons in question had subsequently been acquitted by the appropriate courts (see paragraph 43 above).
11. 47. In several previous cases in which it was alleged that trade union officers or members had been subjected to preventive detention, the Committee has expressed the view that measures of preventive detention may involve a serious interference with the exercise of trade union rights, which it would seem necessary to justify by the existence of a serious emergency and which would be open to criticism unless accompanied by adequate judicial safeguards applied within a reasonable period, and that it should be the policy of every government to take care to ensure the observance of human rights and especially of the right of all detained persons to receive a fair trial at the earliest possible moment.
12. 48. In this case, of the four persons involved, one, Mr. Bruno Ngoy, was released without delay, while an inquiry was simultaneously begun with a view to imposing penalties on the official responsible for the arrest if it should turn out to have been unjustified. Another person, Mr. Bo-Boliko, was put on trial within a reasonable time, acquitted and set free when the court decision was made known. The remaining two persons, Messrs. Tampungu and Mayapa, were also acquitted by the competent court and had been released even before they went to trial.
13. 49. While it would appear that the principle of fair trial enunciated in paragraph 47 above has been observed in the case of the four persons mentioned, the Committee notes that the provisions in section 186 of the Penal Code, under which the prosecution was brought, appear to be in such broad and general terms as to entail a danger of their being applied in such a manner as to place restrictions on the exercise of trade union rights. In view of the fact, however, that all four of the persons involved are now at liberty and that three of them have, moreover, been acquitted by the court, the Committee considers that no useful purpose would be served by continuing the examination of this aspect of the case, and, therefore, recommends the Governing Body to decide that, subject to the observation made above, it does not call for further examination.
    • Allegations relating to the Confiscation of Records and Documents Belonging to the U.T.C.
14. 50. The complainants allege that on 30 March 1962 officers of the Criminal Investigation Department came to the headquarters of the U.T.C to make a search. The card indexes of the Federation of Leopoldville, the organisation's accounts, correspondence and other documents are alleged to have been seized without any inventories being made.
15. 51. In the complainants' view the removal of the organisation's records constitutes an infringement of freedom of association. They consider that by taking this action the Criminal Investigation Department tried to paralyse the U.T.C by depriving it of an essential tool.
16. 52. In its reply the Government states that the search and the seizure of documents at the U.T.C headquarters were determined by the influence of the preliminary judicial inquiry in the Bo-Boliko case and particularly by the need to find evidence of influences from outside the trade union movement and of activities contrary to the internal security of the State.
17. 53. Since the case involved affected only the President of the U.T.C, and since proceedings were dropped after the acquittal, the documents seized have either already been returned to the organisation or are in the process of being returned.
18. 54. In an earlier case, the Committee, while recognising that trade unions, like other associations or persons, cannot claim immunity from search for their premises, emphasised the importance which it attaches to the principle that such a search should only be made following the issue of a warrant by the ordinary judicial authority after that authority has been satisfied that reasonable grounds exist for supposing that evidence exists on the said premises material to a prosecution for an offence under the ordinary law and provided that such search is restricted to the purposes in respect of which the warrant was issued.
19. 55. In this particular case both the Government's statements and the fact that a search warrant was issued (complainants themselves have supplied a copy) would seem to show that the principle mentioned in the previous paragraph was respected.
20. 56. In these circumstances and in view of the fact that the documents originally seized have been or are on the point of being returned to their owner, the Committee recommends the Governing Body to decide that this aspect of the case does not call for further consideration.

The Committee's recommendations

1. 57. In all the circumstances the Committee recommends the Governing Body:
   • (a) to reaffirm its view that measures of preventive detention may involve a serious interference with the exercise of trade union rights which it would seem necessary to justify by the existence of a serious emergency and which would be open to criticism unless accompanied by adequate judicial safeguards applied within a reasonable period, and that it should be the policy of every government to take care to ensure the observance of human rights and especially of the right of all detained persons to receive a fair trial at the earliest possible moment;
   • (b) to decide that, subject to the above observation, the case does not call for further examination.