Interim Report - Report No 72, 1964

Case No 327 (Democratic Republic of the Congo) - Complaint date: 19-FEB-63 - Closed

1. 158. The complaint of the Union of Congolese Workers (U.T.C.) is contained in three telegrams dated 19 and 20 February 1963 which were addressed to the I.L.O directly. This original complaint was supplemented by two communications from the U.T.C dated 7 and 26 March 1963 respectively.
2. 159. All these communications were forwarded to the Government for observations, on receipt. When forwarding these communications the Director-General informed the Government that the case fell within the category of those to which the Committee and the Governing Body are required to give priority because some of the allegations made by the complainants related to the arrest of trade unionists.
3. 160. In a telegram dated 5 April 1963 the Government stated that the persons mentioned in the complaint as having been arrested had all been released and announced that a full report would be sent.
4. 161. The case was submitted to the Committee at its 34th Session (May 1963), and the Committee postponed consideration of it pending the receipt of the information announced by the Government. This information was sent to the International Labour Office in a communication from the Government dated 1 June 1963.

A. A. The complainants' allegations

1. 162. In four communications dated 14 May, 12 June and 24 June 1963 (two communications) the U.T.C made further allegations concerning attacks on trade union rights in the Congo (Leopoldville). Allegations of the same kind were also made by the General Federation of Congolese Workers in a communication dated 29 August 1963.
2. 163. Copies of all these communications were forwarded to the Government, which has as yet submitted no observations on them apart from a communication of 24 September 1963 stating that the persons mentioned by the General Federation of Congolese Workers as having been arrested had all been released and announcing the despatch of full information.
3. 164. The Congo (Leopoldville) has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
4. 165. Complainants state that for several years the workers of OTRACO, an agency under the supervision of the Ministry of Transport and Communications, have been in conflict with their employer. This dispute relates to such matters as the rules of service of established and non-established personnel, annual increases, annual bonuses, and education and housing allowances. It has an eventful history, marked by talks that were begun and broken off, resumed and broken off once more; agreements interpreted differently by each party; notice of a strike given, withdrawn and then given again; and finally the launching on 18 February 1963 of a five-day strike affecting several provinces.
5. 166. The Committee has always taken the view that it is competent to consider allegations relating to a strike in so far, but only in as far, as they affect the exercise of trade union rights. According to complainants, the authorities were guilty of numerous violations of trade union rights in connection with this strike. The U.T.C supplies the following details in this connection: in Leopoldville, Thysville, Matadi and Bona many leaders and members of the staff of the complaining organisation are alleged to have been arrested and ill-treated (complainants cite the names of Messrs. Mutombo, Mbwangi, Luyeye, Bamu, Mbenza, Ndala, Sakibanza, Toto-Zita and Bunga). In Coquilhatville the authorities of the Central Basin are alleged to have made an order prohibiting the strike. It is alleged that in Stanleyville an order was given for the closing of the office of the U.T.C and the prohibition of all its activities; similarly it is alleged that the authorities of the Central Congo closed the U.T.C offices in Lukula, Matadi and Thysville. It is also alleged that throughout the country the management of OTRACO carried out large-scale dismissals of workers who had taken part in the strike. Complainants supply a great volume of written evidence in support of their allegations.
6. 167. In the observations it submitted on 1 June 1963 the Government did not seem to challenge the accuracy of any of the allegations reproduced in the previous paragraph. It lists them and states that the decisions in question " were taken by the provincial or local authorities acting on their own initiative, and not on instructions from superior authorities, and without having previously consulted the central authorities, that is the central Government in Leopoldville ".
7. 168. In this connection the Government supplies the following explanations:
   • Recently appointed regional authorities and the officials in the interior are not always sufficiently well acquainted with national legislation. Most instances involve officials appointed to the new posts created by the recent multiplication of provinces. In some instances they may not be familiar with part of the law, particularly with Congolese legislation on freedom of association, especially form and procedure in respect of preventive detention, arrests without warrants, disturbances of the peace, legislation concerning trade unions rights and the powers of the competent authorities particularly as regards the approval of occupational associations and the scope of such approval. Ignorance of these laws may lead officials to commit certain acts without being aware of their illegality.
   • The Government goes on to say that:
   • ...the Basic Law dated 19 May 1960 regulating the administrative structure of the Congo establishes the principle of overlapping spheres of jurisdiction between the central and provincial authorities in respect of social legislation in general (article 221). This Basic Law, which serves as the provisional Constitution of the Congo, organises the country under a central Government but guarantees a large measure of provincial autonomy. As regards the status of occupational associations, certain provinces have interpreted the principle of overlapping spheres of jurisdiction in respect of social legislation as giving them the right to impose on associations approved by the central authorities supplementary formalities required for authorisation to engage in activities in localities under their jurisdiction. Such interpretations of Constitutional rulings have led to friction and incidents.
8. 169. The Government asserts that it is making an all-out effort to ensure that the legal guarantees of freedom of association are upheld in the provinces. For example, in view of the fact that the measures taken by the regional authorities were sometimes based on misinformation or misunderstandings, the Department of Labour recently circulated to all provincial authorities a memorandum defining the competence of these authorities in respect of occupational associations.
9. 170. The Department of Labour also recently held a conference of the provincial Ministers of Labour. This meeting began in Leopoldville on 13 May 1963; item 2 on the agenda related to freedom of association and trade union rights. In the course of the conference, which was intended to make it possible to establish contact and to exchange information and points of view on current labour problems, the representatives of the central Government supplied the provincial representatives with all necessary information and explanations to ensure that legality in trade union matters would be guaranteed in the interior of the country.
10. 171. The record of proceedings of this conference-supplied by the Government-shows fairly clearly that the central and provincial governments have widely differing views regarding their respective powers in the trade union field.
11. 172. While fully understanding the difficulties which may be encountered by the central Government in this case, the Committee believes it should at this stage make it clear-as it did in a case affecting Canada which was of a different character-that the Member of the International Labour Organisation involved is the central Government and that discussions on this matter can therefore be opened and pursued by the Committee and the Governing Body only with that Government. It should be noted that there is nothing in the Government's reply to suggest that it disputes this.
12. 173. It has been seen above (paragraph 167) that the Government did not deny the facts cited by complainants. It even seems that the Government agrees with complainants when the latter state that these events constitute attacks on freedom of association. That at least is the impression derived from the various minutes sent to the provincial authorities by the central Government on behalf of the Minister concerned after the events described in the complaint of the U.T.C. Fairly extensive extracts from these minutes are given below.
13. 174.
    • ... I take the liberty of drawing to your attention the principle that decisions momentarily restricting freedom of association may not be taken except in instances where they prove absolutely necessary to the maintenance of law and order and the prevention of disturbances. Such measures, unless justified, would inevitably be interpreted as constituting a violation of freedom of association, which is guaranteed in several texts constituting Congolese legislation, i.e. the Basic Law of 17 June 1960 (with regard to public freedom)... and the Decrees of 25 January 1957 regulating freedom of association of the inhabitants of the Congo and of agents of the administration.... However, freedom of association-and human rights-are violated when measures (arrests and dismissal of union militants, closure of union premises, confiscation of documents, etc.) are taken for the purpose of hindering union operations or preventing workers from joining unions.... Therefore, in the name of freedom of association, I trust that the measures taken against regular officers of the U.T.C will be withdrawn, if this is not already the case, or, failing this, that the measures be taken in all due legal form should it prove certain that the activities of the U.T.C momentarily constitute a threat to law and order within the territory of your jurisdiction.
14. 175.
    • I should like to remind you that collective work stoppages (strikes, lockouts) are authorised as long as the procedure provided for under the Decree of 18 May 1959 concerning conciliation and arbitration procedure in the event of collective labour disputes is observed. Within these limits exercise of the right to strike is authorised. This right is entirely regulated by the above-mentioned decree of 18 May 1959, and may not be invalidated by any provincial ruling whatsoever, in conformity with the machinery provided for by articles 209 and 221 of the Basic Law regulating the administrative structure. I trust that these clarifications will enable your authorities to operate in this respect in a fashion conforming strictly to legality. Only such conduct can favour the development and maintenance of satisfactory social practices and avoid outside criticism that the country has restricted freedom of association and arbitrarily limited the right to strike.
15. 176. It is clear from the quotations in the last two paragraphs that not only does the Government recognise that freedom of association had been infringed but it has issued instructions for the measures impugned to be annulled. However, in its observations dated 1 June 1963 the Government refrains from giving any information concerning any result of the instructions it has given to the provincial authorities. The only further-limited-information available to the Committee is that contained in the Government's telegram of 5 April 1963 which states that all trade unionists and workers mentioned in the U.T.C complaint as having been arrested have been released.
16. 177. The Committee considers that if it is to be in a position to formulate conclusions on this aspect of the case in full knowledge of the circumstances, it must obtain more precise additional information on the various facts of the case, and it therefore recommends the Governing Body to request the Government:
    • (a) to confirm that Messrs. Mutombo, Mbwangi, Luyeye, Bamu, Mbenza, Ndala, Sakibanza, Toto-Zita and Bunga have been released, as seems to be indicated by the Government's telegram of 5 April 1963;
    • (b) to state whether the offices of the U.T.C in Stanleyville, Lukula, Matadi and Thysville have been reopened and whether the U.T.C has been free to resume its activities in these places;
    • (c) to state whether the order prohibiting the strikes has been rescinded in Coquilhatville; and
    • (d) to state whether the workers dismissed as a result of the strike have been reinstated.
      • Pending the arrival of this information the Committee recommends that the Governing Body should adjourn its consideration of this aspect of the case.
    • 178. It has already been noted (paragraph 162) that in four communications dated 14 May, 12 June and 24 June 1963 the U.T.C had made further allegations and that attacks on freedom of association had also been alleged in a communication of 29 August 1963 from the National Federation of Congolese Workers.
17. 179. According to the allegations of the U.T.C, further members of the staff of this organisation have been arbitrarily placed under arrest-Messrs. Yengha, Kasekwa and Musemakweli and Miss Mupenda, the two latter being from Bukavu. The complainants also allege that again at Bukavu 72 trade unionists, whose names are not given, have been arrested and that the union premises have been closed. Complainants also allege that the management of the " Compagnie congolaise de l'hévéa " is prohibiting the workers affiliated to the U.T.C from attending trade union meetings on its plantations. The General Federation of Congolese Workers also alleges that its secretaries have been arbitrarily arrested and that there has been an unjustified search of its premises.
18. 180. Since the Government has presented no observations on these various allegations, apart from an indication that the persons mentioned by the General Confederation of Congolese Workers have been released and an announcement that complete observations will be sent, the Committee recommends the Governing Body to request the Government to be good enough to furnish its observations and, in the meantime, to adjourn further examination of this aspect of the case.

The Committee's recommendations

1. 181. With regard to the case as a whole, the Committee recommends the Governing Body:
   • (a) to request the Government to confirm that Messrs. Mutombo, Mbwangi, Luyeye, Bamu, Mbenza, Ndala, Sakibanza, Toto-Zita and Bunga have been released, as seems to be indicated by the Government's telegram dated 5 April 1963;
   • (b) to request the Government to indicate whether the offices of the U.T.C in Stanleyville, Lukula, Matadi and Thysville have been reopened and whether the U.T.C has been free to resume its activities in these places;
   • (c) to request the Government to state whether the order prohibiting strikes has been rescinded in Coquilhatville;
   • (d) to request the Government to indicate whether the workers dismissed as a result of the strike have been reinstated;
   • (e) to request the Government to furnish its observations with regard to the questions raised in the communications of 14 May, 12 June and 24 June 1963 of the U.T.C, as well as the additional information which it has announced it will provide on questions raised in the communication of 29 August 1963 from the General Federation of Congolese Workers; and
   • (f) to decide to postpone further consideration of the case, pending receipt of the information mentioned in paragraphs (a), (b), (c), (d) and (e) above, it being understood that the Committee will report further to the Governing Body when the said information has been received.