Interim Report - Report No 357, June 2010

Case No 2712 (Democratic Republic of the Congo) - Complaint date: 11-APR-09 - Closed

Allegations: Abduction and arbitrary detention by the special services of three trade unionists, including the President of the Congolese Labour Confederation

1. 1071. The complaint is contained in a communication dated 11 April 2009 from the Congolese Labour Confederation (CCT).
2. 1072. As the Government has not replied, the Committee has been obliged to adjourn its examination of this case on two occasions. At its March 2010 meeting [see the Committee’s 356th Report, para. 5], the Committee made an urgent appeal to the Government indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report (1972), approved by the Governing Body, it could present a report on the substance of the case at its next meeting if the observations or information requested had not been received in due time. To date the Government has not sent any information.
3. 1073. The Democratic Republic of the Congo has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers’ Representatives Convention, 1971 (No. 135).

A. The complainant’s allegations

1. 1074. In a communication dated 11 April 2009, the CCT alleges abduction and illegal detention for three months of two trade unionists, Mr Richard Kambale Ndayango and Mr Israël Kanumbaya Yambasa, and of the union’s President, Mr Nginamau Malaba. According to the CCT, the arrests and detentions in question followed the presentation of a number of demands and a number of actions by the organization. The CCT cites, as an example, a representation signed in November 2007 by agents and officials of the Ministry of the National Economy concerning mission orders considered to be discriminatory and memos addressed to the Ministry of the National Economy and to the Prime Minister, which had already led to threats to have members of the CCT union committee arrested by the special services.
2. 1075. The CCT concludes that the trade unionists working for the Ministry of the National Economy and Foreign Trade are being harassed because they have information on financial irregularities that have resulted in a shortfall in state income and the failure to pay civil servants their salaries and benefits.
3. 1076. The complainant organization states, lastly, that it complained to the Attorney-General of the Republic and the Supreme Court in connection with the abduction, arbitrary detention, and violation of the fundamental rights of Mr Nginamau Malaba, President of the CCT, by certain individuals.

B. The Committee’s conclusions

1. 1077. The Committee deplores that, despite the time that has passed since the complaint was presented, the Government has still not replied to the allegations of the complainant organization, although it has been invited to do so on a number of occasions, including by means of an urgent appeal. The Committee urges the Government to be more cooperative in the future.
2. 1078. Under these circumstances and in accordance with the applicable rules of procedure [see 127th Report, para. 17, approved by the Governing Body], the Committee finds itself obliged to present a report on the substance of the case without the benefit of the information which it had expected to receive from the Government.
3. 1079. The Committee recalls that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to promote respect for this freedom in law and in fact. The Committee remains confident that, if the procedure protects governments from unreasonable accusations, governments on their side will recognize the importance of formulating, for objective examination, detailed replies concerning allegations made against them [see the Committee’s first Report, para. 31].
4. 1080. The Committee notes that the present case concerns the arrest and detention of three trade unionists by the country’s special services. The Committee wishes to make it clear from the outset that it has no competence to examine the accusations made by the complainant organization concerning financial irregularities on the part of the administration, and its remit is rather to examine allegations of violations of freedom of association and the absence of normal judicial procedure for trade union officials in the exercise of their legitimate union activities.
5. 1081. The Committee notes that, according to the CCT, two trade unionists, Mr Richard Kambale Ndayango and Mr Israël Kanumbaya Yambasa, as well as the President of the union, Mr Nginamau Malaba, were arrested on 11, 16 and 19 January 2009, respectively, by agents of the National Intelligence Agency (ANR). It is alleged that they were kept in custody for one month, without any access to legal counsel or to their families, before obtaining an order by the magistrates Kinshasa/Gombe magistrate’s court for their provisional release. Despite this order, they have been kept in prison following an appeal by the prosecution service.
6. 1082. The Committee notes that, according to the documents attached to the complaint:
   • – Mr Malaba, Mr Ndayango and Mr Yambasa, all of whom signed a memorandum denouncing financial irregularities at the Ministry of the National Economy, were detained for one month following their arrest by ANR agents in January 2009;
   • – formal authorization for their detention was allegedly given only after the fact;
   • – Mr Malaba was allegedly not brought before an investigating magistrate until 19 February 2009, following a complaint filed by the Minister of the National Economy and Foreign Trade;
   • – the three trade unionists have been held since 23 February 2009 at the Kinshasa Correctional and Re-education centre (CPRK);
   • – the Kinshasa/Gombe magistrate’s court, on 26 February 2009, ordered their provisional release but they remained in custody because of the appeal by the prosecution service against the lower court’s decision to release them;
   • – an appeal court hearing set for 13 March 2009 was to have decided whether or not to release them; and
   • – the three trade unionists are said to have been subjected to inhumane and degrading treatment.
7. 1083. The Committee notes that, according to the complainant organization, the detention of the trade unionists was a retaliatory and intimidatory measure of the kind to which CCT members have been subjected since July 2007, and was a response to a number of actions by the CCT to challenge discriminatory mission orders (representation of 27 June 2007 addressed to the Ministry of the National Economy, attached as an annex), and to claim certain benefits on behalf of the agents and officials of the Ministry of the National Economy (memo of 26 December 2007 to the President of the National Assembly; petition of 14 November 2008 to the Minister of the National Economy, attached as an annex), and to report financial irregularities within the Ministry for the National Economy which have been detrimental to civil servants by depriving them of their salaries and benefits. The Committee recalls that freedom of opinion and expression and, in particular, the right not to be penalized for one’s opinions, is an essential corollary of freedom of association, and workers, employers and their organizations should enjoy freedom of opinion and expression in their meetings, publications and in the course of their trade union activities.
8. 1084. In the light of the information provided and in the absence of any reply from the Government, the Committee notes that there is nothing in this case that would rule out the possibility that the arrests and detention of Mr Malaba, president of the CCT, and of Mr Ndayango and Mr Yambasa were linked to their trade union activities. The Committee recalls in this regard that the detention of trade unionists for reasons connected with their activities in defence of the interests of workers constitutes a serious interference with civil liberties in general and with trade union rights in particular; furthermore, the arrest and detention of trade unionists without any charges being laid or court warrants being issued, constitutes a serious violation of trade unions rights [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 64 and 69].
9. 1085. Consequently, the Committee urges the Government, without delay, to hold an independent inquiry to elucidate the reasons for the arrests of the two CCT trade unionists, Mr Richard Kambale Ndayango and Mr Israël Kanumbaya Yambasa, and of the President of the union, Mr Nginamau Malaba, on 11, 16 and 19 January 2009, respectively, by ANR agents; to ascertain the charges laid against them to justify their detention; and, if it is found that they are detained solely for reasons linked to their legitimate trade union activities, to release them immediately and punish those responsible in a way sufficiently dissuasive to prevent any future recurrence of such acts and compensate them for any lost wages. The Government is also requested to provide copies of the court decisions in this matter, in particular, the decision of 26 February 2009 of the Kinshasa/Gombe magistrate’s court, the decision of the appeal court where a hearing had been set for 13 March 2009, and to indicate the follow-up to the court decisions.
10. 1086. The Committee is very concerned by the statement, according to which not only were the three trade unionists kept in detention for one month before obtaining a hearing following a complaint by the Minister of the National Economy and Foreign Trade, but the individuals in question were also subjected to inhumane and degrading treatment. The Committee urges the Government to hold an inquiry without delay into these allegations and to report on the outcome. The Committee also requests the Government, or the complainant organization, to indicate the follow-up action taken on the complaint filed by the CCT on 28 January 2009 with the Attorney-General of the Republic.

The Committee's recommendations

1. 1087. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee deplores that the Government has still not replied to the complainant organization’s allegations, despite having been invited on a number of occasions, including by means of an urgent appeal, to present its comments and observations on the case. The Committee urges the Government to be more cooperative in the future.
   • (b) The Committee urges the Government to hold an independent inquiry without delay to elucidate the reasons for the arrests of the two CCT trade unionists, Mr Richard Kambale Ndayango and Mr Israël Kanumbaya Yambasa, and of the President of the organization, Mr Nginamau Malaba, on 11, 16 and 19 January 2009, respectively, by ANR agents; to ascertain the charges laid against them to justify their detention; and, if it is found that they were detained solely for reasons linked to their legitimate union activities, to release them immediately and punish those responsible in a manner sufficiently dissuasive to prevent any recurrence of such acts in the future, and compensate them for any lost wages.
   • (c) The Government is requested to provide copies of the relevant court decisions in this case, including the decision of 26 February 2009 of the Kinshasa/Gombe magistrate’s court, the decision of the appeals court for which a hearing was set for 13 March 2009, and to indicate any follow-up action taken.
   • (d) The Committee urges the Government to hold an inquiry without delay into the allegation that the three trade unionists concerned were held in custody for one month before obtaining a hearing and were subjected to inhumane and degrading treatment, and to indicate the outcome.
   • (e) The Committee requests the Government or the complainant organization to indicate the follow-up action taken on the complaint filed by the CCT with the Attorney-General of the Republic on 28 January 2009.
   • (f) The Committee draws the Governing Body’s attention to the extreme seriousness and urgent nature of the present case.