Report in which the committee requests to be kept informed of development - Report No 310, June 1998

Case No 1884 (Eswatini) - Complaint date: 23-MAY-96 - Closed

Allegations: Violations of the right to organize and the right to strike

1. 576. The Committee examined this case in its meeting in March 1997 (see 306th Report, paras. 619-704, approved by the Governing Body at its 268th Session (March 1997)) during which it made interim conclusions.
2. 577. The Government furnished its observations in a communication dated 23 April 1998.
3. 578. Swaziland has ratified 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).

A. Previous examination of the case

1. 579. The previous examination of this case was based not only on the complainant's allegations and the Government's reply, but also on the report of the direct contacts mission which took place in the country from 30 September to 4 October 1996. At that time, the Committee had examined allegations of dismissals, threats and harassment towards trade unionists, including the abduction of the General-Secretary of the Swaziland Federation of Trade Unions (SFTU), and the incompatibility of the 1996 Industrial Relations Act (IRA) with the principles of freedom of association. In the light of the Committee's interim conclusions, the Governing Body approved the following recommendations in March 1997:
2. ...
3. (b) The Committee would draw the Government's attention to its conclusions concerning the numerous provisions of the Industrial Relations Act which are incompatible with the principles of freedom of association and urges the Government to take the measures necessary in the very near future so that the Act is amended accordingly, giving due consideration to the proposals made by the tripartite Labour Advisory Board. It requests the Government to keep it informed of the progress made in this regard.
4. (c) Noting with concern that section 12 of the 1973 Decree on meetings and demonstrations places important restrictions on the rights of organizations to hold meetings and peaceful demonstrations and can result in serious violation of freedom of association, the Committee urges the Government to take the necessary measures to repeal this section so as to permit trade union organizations to operate freely.
5. (d) As concerns the allegation that a 16 year-old schoolgirl was killed by a stray bullet fired by the police during the January 1996 stay-away, the Committee requests the Government to take the necessary measures to institute immediately an independent inquiry into the matter in order to determine the justification for the action taken by the police, to determine responsibilities and to punish the guilty parties.
6. (e) As concerns the abduction of Mr. Jan Sithole on 29 August, the Committee requests the Government to take the necessary measures to establish an independent investigation into this matter and to keep the Committee informed of the outcome of the investigation.
7. (f) As concerns recent use of the 1963 Public Order Act to ban strike action, the Committee urges the Government to ensure that this Act is amended so that it may no longer be used for the purpose of oppressing legitimate and peaceful strike action.
8. (g) As concerns the new charges filed against Jan Sithole, Richard Nxumalo, Jabulani Nxumalo, Themba Msibi, Barbara Dlamini and the SFTU itself in respect of the January 1996 protest action under section 40 of the 1996 Industrial Relations Act read together with sections 73 and 75, the Committee refers to its conclusions on the incompatibility of these provisions with the principles of freedom of association and calls upon the Government to take the necessary measures immediately so that these charges are dropped.
9. (h) As concerns the dismissal of Jabulani Nxumalo, Assistant General-Secretary of the SFTU, the Committee requests the Government to investigate immediately the circumstances surrounding his dismissal and, if it appears that his dismissal was related to his trade union activity, to take the necessary measures to ensure his reinstatement in his job, if he so desires. It requests the Government to keep it informed of the outcome of this investigation.
10. B. The Government's further reply
11. 580. In its communication dated 23 April 1998, the Government refers to a draft Industrial Relations Act, provided to the Office, which was revised in consultation with the social partners and with assistance from the ILO.
12. 581. The Government further indicates that many of the outstanding allegations are no longer relevant due to the passage of time. There are no cases pending against any leader of any labour movement, nor is anyone serving a sentence for offences associated with trade union activities. Furthermore, the Government has advanced, with the cooperation of the social partners and the ILO, with the development of a draft Industrial Relations Act which seeks to improve the application of international labour standards, especially those ratified by Swaziland. The draft also seeks to improve the dispute resolution processes. This draft was submitted by the tripartite Labour Advisory Board to the Minister of Enterprise and Employment on 19 March 1998. The Minister should be submitting a draft Bill to Cabinet shortly and Parliament will naturally take it up from there.
13. 582. The Government concludes by stressing that it is making good use of the power of tripartism in not only arriving at a consensus, but in coming out of an unnecessary strife borne out of suspicion and mistrust as well. The Government expresses its thanks for the assistance provided by the ILO and acknowledges the sense of urgency in handling this matter.

C. The Committee's conclusions

1. 583. The Committee notes that the outstanding recommendations in this case refer to amendments to be made to existing legislation, including the Industrial Relations Act, as well as to call upon the Government to drop pending charges under this legislation brought against the following leaders of the Swaziland Federation of Trade Unions (SFTU): Jan Sithole, Richard Nxumalo, Jabulani Nxumalo, Themba Msibi, Barbara Dlamini and the Federation itself. Finally, the Committee requested the Government to establish independent investigations into the circumstances surrounding: (1) the death of a 16-year-old schoolgirl, killed by a stray bullet fired by the police during the January 1996 stay-away; (2) the abduction of Jan Sithole, Secretary-General of the SFTU, on 29 August 1996; and (3) the dismissal of Jabulani Nxumalo, Assistant Secretary-General of the SFTU.
2. 584. The Committee notes with interest from the Government's report that there are no charges pending against any trade unionists and that no one is serving a sentence for offences associated with trade union activities.
3. 585. The Committee notes with regret, however, that the Government has not furnished any information on the independent investigations which the Committee had requested the Government to establish into the above-mentioned matters. The Committee must therefore once again urge the Government to establish independent investigations in respect of: the death of the 16-year-old schoolgirl, killed by a stray bullet fired by the police during the January 1996 stay-away; the abduction of Jan Sithole on 29 August 1996; and the dismissal of Jabulani Nxumalo. It further requests the Government to take the necessary measures to ensure the reinstatement of Jabulani Nxumalo in his post, if he so desires, if it appears that his dismissal was related to his trade union activity. The Government is requested to keep it informed of the outcome of these investigations.
   • Draft Industrial Relations Act
4. 586. The Committee notes with interest the efforts made by the Government, in consultation with the social partners and with the assistance of the ILO, to revise the Industrial Relations Act in order to bring it into conformity with the principles of freedom of association.
5. 587. The Committee notes, in particular, that section 32 of the draft concerning the regulation of federations no longer includes the prohibition on strike action by federations and has eliminated the other restrictions on the activities of federations contained in the 1996 IRA. Furthermore, the draft has eliminated all penal sanctions concerning strike action. While noting that the Minister may still make an application to the Court for an injunction restraining the commencement of a strike or lockout which he or she considers to threaten national interest (section 89 of the Bill), the Committee notes with interest that the term "national interest" is defined in the Bill as meaning "matters which will have or are likely to have the effect of endangering the life, health or personal safety of whole or part of the population". Finally, the Committee notes with interest that broadcasting services have been eliminated from the list of essential services (section 93 of the Bill).
6. 588. The Committee further notes that the other limitations to the full exercise of freedom of association in the 1996 IRA which were raised in its previous examination of this case (see 306th Report, paras. 689-692) have been effectively eliminated.
7. 589. In conclusion, the Committee notes with interest that this draft appears to respond to all the matters raised in its previous examination of this case in respect of the conformity of the 1996 Industrial Relations Act (IRA) with the principles of freedom of association. Noting that this draft has been submitted to the Minister of Enterprise and Employment and that it is expected that a draft Bill will be submitted shortly to Cabinet and then to the Parliament, the Committee urges the Government to take the necessary measures to ensure that this draft is adopted in the near future and that, in its final form, it maintains the changes made in response to the Committee's previous recommendations so as to ensure full respect for the principles of freedom of association. The Government is requested to keep the Committee informed of the progress made in this regard.
8. 1973 Decree on meetings and demonstrations and 1963 Public Order Act
9. 590. The Committee notes with deep concern that the Government has not responded to its previous recommendations concerning the 1973 Decree on meetings and demonstrations and the abusive use of the 1963 Public Order Act (see 306th Report, paras. 694, 701 and 705(c) and (f)). It therefore once again urges the Government to repeal section 12 of the 1973 Decree which it has concluded places important restrictions on the rights of organizations to hold meetings and peaceful demonstrations and to ensure that the 1963 Public Order Act is amended so that it may no longer be used for the purpose of oppressing legitimate and peaceful strike action. It requests the Government to keep it informed of the progress made in this respect.

The Committee's recommendations

1. 591. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • a. The Committee urges the Government to take the necessary measures to ensure that the Industrial Relations Bill, drafted in consultation with the social partners, is adopted in the near future and that, in its final form, it maintains the changes made in response to the Committee's previous recommendations so as to ensure full respect for the principles of freedom of association. The Government is requested to keep the Committee informed of the progress made in this regard.
   • b. The Committee once again urges the Government to repeal section 12 of the 1973 Decree which it has concluded places important restrictions on the rights of organizations to hold meetings and peaceful demonstrations and to ensure that the 1963 Public Order Act is amended so that it may no longer be used for the purpose of oppressing legitimate and peaceful strike action. It requests the Government to keep it informed of the progress made in this regard.
   • c. The Committee once again urges the Government to establish independent investigations into: the death of the 16-year-old schoolgirl, killed by a stray bullet fired by the police during the January 1996 stay-away; the abduction of Jan Sithole on 29 August 1996; and the dismissal of Jabulani Nxumalo. It further requests the Government to take the necessary measures to ensure the reinstatement of Jabulani Nxumalo in his post, if he so desires, if it appears that this dismissal was related to his trade union activity. The Government is requested to keep it informed of the outcome of these investigations.