Report in which the committee requests to be kept informed of development - Report No 323, November 2000

Case No 2028 (Gabon) - Complaint date: 21-MAY-99 - Closed

Allegations: Arrest and detention of a trade union member

1. 201. In a communication dated 21 May 1999, the Gabonese Confederation of Free Trade Unions (CGSL) submitted a complaint of violations of freedom of association against the Government of Gabon. The Government transmitted its observations in a communication dated 28 April 2000.
2. 202. Gabon 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. The complainant's allegations

1. 203. In its communication of 21 May 1999, the CGSL explains that, following the unfair dismissals of Ms. Oyane and Mr. Nkwaghe, two workers employed by the Rougier-Ivindo enterprise, they both contacted Mr. Jean-Rémy Nguelany, the CGSL representative in the province of Ogové-Ivindo. Mr. Nguelany initiated a procedure for compensation with the Provincial Labour Inspectorate of Boové after Ms. Oyane and Mr. Nkwaghe had paid CGSL membership fees amounting to CFA francs 7,000.
2. 204. Following delays caused by the absence of the Boové labour inspector for health reasons, the CGSL representative decided to transfer the case file himself to the provincial labour directorate of Makokou. For this purpose, the CGSL representative was paid the travel costs involved in submitting the files, amounting to CFA francs 15,000 paid by Ms. Oyane and Mr. Nkwaghe.
3. 205. On his return from sick leave, the competent labour inspector decided, on the pretext of not having appreciated the action of the CGSL representative, to recover the files lodged by the latter with the head of the provincial labour department on the grounds that the CGSL representative was not competent to handle a problem relating to labour legislation. Seeing that time was passing without the problem of their unfair dismissal being solved, Ms. Oyane and Mr. Nkwaghe contacted the labour inspector, who encouraged them to lodge a complaint with the Makokou court against the CGSL representative for the embezzlement of CFA francs 7,000 and 15,000 (approximately US$40). After he had been questioned by the public prosecutor's office, an investigation was opened against the CGSL representative for embezzlement. The latter was placed in preventive custody without trial for four months. He lodged an application for release on bail but this was refused. His case was finally dismissed by the court and he was released, but only after four months' imprisonment.
4. 206. On the basis of the foregoing, the CGSL considers that the labour inspector was deliberately over-zealous in order to harm the CGSL representative and reiterates the fact that, during his four months' imprisonment, the CGSL representative was deprived of his salary.

B. The Government's reply

1. 207. In its communication dated 28 April 2000, the Government does not dispute in any way the facts leading to the lodging of the complaint, but adds a few clarifications. Firstly, the Government points out that, following its inquiries, it appears that Ms. Oyane was not employed by the Rougier-Ivindo enterprise but by an individual who was himself employed by that company. As for Mr. Nkwaghe, the latter is said to have stated himself that he has never worked for Rougier-Ivindo.
2. 208. Secondly, the Government points out that the written statement by Ms. Oyane, which was certified by Boové town hall, in which she maintains that the labour inspector disapproved of the procedure undertaken by the CGSL representative and therefore encouraged her to bring a charge against the latter for embezzlement, was categorically rejected by the party concerned. In addition, the Government affirms that the imprisonment of Mr. Nguelany occurred on grounds of embezzlement and not as a result of his union activity.
3. 209. Lastly, the Government states that on 10 May 1999 the CGSL submitted a complaint to the office of the Labour Minister against the labour inspector, Mr. Mba Evouna, for having instigated the imprisonment of its member, Mr. Nguelany. However, the Government deplores the fact that before exhausting domestic remedies and obtaining a reply from the Labour Ministry, the CGSL referred the case to the ILO, and the Government considers this to be contrary to the promotion of social dialogue in the country.

C. The Committee's conclusions

1. 210. The Committee notes that this case concerns allegations of arrest and detention of a CGSL union representative for four months. The Committee observes that the facts leading to the submission of the complaint are not disputed by the Government, even though the latter makes certain reservations. In particular, the Government states that the labour inspector, Mr. Mba Evouna, categorically denied that the charge of embezzlement had been brought by Ms. Oyane against the CGSL representative on his recommendation. However, the Committee observes from Ms Oyane's written statement, which was certified by Boové town hall and transmitted by the Government, that she affirms that Mr. Mba Evouna strongly urged Ms. Oyane and Mr. Nkwaghe to bring a charge against the CGSL representative for embezzlement of the sums paid for CGSL membership and travel to Makokou. Ms. Oyane concludes her written statement by severely censuring the improper conduct of the Boové labour inspector.
2. 211. The Committee observes that the CGSL representative was kept in preventive detention for four months without trial, after the charge was filed. In addition, the Committee observes that the request for release on bail of the CGSL representative was refused. Finally, the Committee notes the judgement of the court of first instance of Makokou, transmitted by the Government and the complainant, which declares the charge of embezzlement against the CGSL representative, Mr. Nguelany, to be unfounded and dismisses the case. In his judgement, the judge of first instance declares in particular that, as a trade unionist and member of CGSL, Mr. Nguelany was entitled to act as a link between employees and the labour inspector, that he had indeed submitted the files of his union members to the provincial labour department and that he had not undertaken any fraudulent action to embezzle money from Ms. Oyane and Mr. Nkwaghe.
3. 212. On the basis of the foregoing, the Committee strongly deplores the arrest and detention for four months of the CGSL representative, Mr. Nguelany. The Committee strongly emphasizes that the arrest of trade union leaders against whom no charge is brought involves restrictions on freedom of association, and governments should adopt measures for issuing appropriate instructions to prevent the danger involved for trade union activities by such arrests. Furthermore, it is also clear that such arrests create an atmosphere of intimidation and fear prejudicial to the normal development of trade union activities. The Committee also recalls that preventive detention should be limited to very short periods of time intended solely to facilitate the course of a judicial inquiry. Lastly, it is one of the fundamental rights of the individual that a detained person should be brought without delay before the appropriate judge and, in the case of unionists, freedom from arbitrary arrest and detention and the right to a fair and rapid trial are among the civil liberties which should be ensured by the authorities in order to guarantee the normal exercise of trade union rights (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 80, 87 and 94). The Committee urges the Government to respect these principles in future and asks it to take the necessary steps to ensure that Mr. Nguelany is duly compensated by the authorities for the loss of his salary during preventive detention, and requests the Government to keep it informed in this regard. With regard to the Government's statement in whch it deplored the fact that the complainant referred the case to the ILO before exhausting domestic remedies, the Committee recalls that although the use of internal legal procedures, whatever the outcome, is undoubtedly a factor to be taken into consideration, the Committee has always considered that, in view of its responsibilities, its competence to examine allegations is not subject to the exhaustion of national procedures. (Paragraph 33 of the Procedures of the Committee on Freedom of Association.)

The Committee's recommendations

1. 213. In the light of its foregoing conclusions, the Committee invites the Governing Body to adopt the following recommendation:
   • Recalling that the arrest of trade unionists against whom no charge is brought involves serious restrictions on freedom of association, the Committee urges the Government to take the necessary steps to ensure that Mr. Nguelany is duly compensated by the authorities for his loss of salary during preventive detention and requests the Government to keep it informed in this regard.