Interim Report - Report No 357, June 2010

Case No 2714 (Democratic Republic of the Congo) - Complaint date: 14-APR-09 - Closed

Allegations: Harassment and intimidation of trade union leaders through disciplinary measures and suspensions in reprisal for making a petition

1. 1104. The complaint is contained in a communication dated 14 April 2009 from the Congolese Labour Confederation (CCT).
2. 1105. 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. 1106. 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. 1107. In a communication dated 14 April 2009, the CCT allleges acts of harassment and intimidation of trade union officials who had signed a petition requesting information on the application of the law establishing the nomenclature of acts giving rise to administrative, judicial and state revenues and arrangements for the collection thereof. According to the complainant, two of the officials in question, Mr Basila Baelongandi and Mr Hervé Bushabu Kwete, are victims of harassment carried out by the General Secretariat for Foreign Trade as a reprisal for the petition signed by the CCT and the Force syndicale nouvelle (FOSYN).
2. 1108. The complainant states that its two members in question have been subjected to anti-union discrimination, including by disciplinary measures up to, and including, suspension. It states that it protested against such methods, which are described as harassment and intimidation aimed at stifling the union, but has received no reply from the authorities. The acts continue to this day.
3. 1109. The organization also states that alongside these efforts to marginalize the union, the General Secretariat for Foreign Trade has appointed a delegate who is not really a trade unionist to the Bonus Allocations Committee, which favours a non-transparent process for refunds.

B. The Committee’s conclusions

1. 1110. The Committee regrets that, despite the time that has passed since the complaint was presented, the Government has not replied to the complainant’s allegations, although it has 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.
2. 1111. Under these circumstances and in accordance with the applicable rules of procedure [see 127th Report, para. 17, approved by the Governing Body at its 184th Session (1972)], 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. 1112. 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. 1113. The Committee notes that the present case concerns allegations of retaliatory acts of harassment and intimidation of trade union leaders by an administrative authority. The Committee notes that the CCT and the union FOSYN, on 16 June 2008, signed a petition addressed to the Ministry of the National Economy and Foreign Trade requesting more transparent implementation of Law No. 04/15 of 16 July 2004, establishing the nomenclature of acts giving rise to administrative, judicial and state revenues and arrangements for the collection thereof, and better information for unions on the allocation of bonuses and refunds to ministry departments, in accordance with the law, and the ending of partisan appointments of agents and officials for official missions.
5. 1114. The Committee notes that, in a letter of 25 June 2008, the General Secretariat for Trade informed Mr Basila Baelongandi, Mr Bushabu Kwete and Ndombe JP that they had been suspended from their posts in the light of the disciplinary proceedings for allegedly spreading false information (letter No. 79/MINEC/SG.COM/141/jd/2008, provided by the complainant). The Committee notes that, according to the documents provided by the complainant, Mr Bushabu Kwete has received three summonses dated 20 and 26 June and 1 July 2008 from the General Directorate of Prosecutions. Mr Bushabu Kwete was also notified of the instigation of disciplinary proceedings, dated 25 June 2008, alleging the following offences: misleading agents with false information concerning bonuses and refunds, failure to respect hierarchical lines of management, insubordination and manifest bad faith, despite a number of warnings.
6. 1115. The Committee notes that following letters of protest from the CCT concerning the acts of anti-union discrimination against its members (communication of 23 June 2008 to the Attorney General of the Republic) and the Government’s renewed consideration of the demands contained in the petition of 16 June 2008 (communications of 29 September 2008 to the Minister of the National Economy and Foreign Trade and of 13 January 2009 to the Prime Minister), Mr Bushabu Kwete was notified of another preventive suspension on 14 January 2009 on the grounds of his speaking in disrespectful terms of the Minister of the National Economy and Foreign Trade during a televised broadcast. The Committee, furthermore, notes the letter addressed to the Secretary General for Foreign Trade on 20 January 2009, in which the CCT protests against the instigation of disciplinary proceedings against Mr Basila Baelongandi and Mr Bushabu Kwete, which are described as acts of harassment against trade unionists who had exercised their rights.
7. 1116. The Committee wishes to state at the outset that, in its view, issuing a petition like the one signed by the CCT and the union FOSYN on 16 June 2008, appears to be a legitimate action by organizations in the defence of their members’ interests. In the light of the information provided by the complainant organization and in the absence of any observations from the Government in this regard, the Committee notes that there is nothing to rule out the possibility that the disciplinary measures, up to and including suspension from their posts, against Mr Basila Baelongandi and Mr Bushabu Kwete, CCT union officials, and their summons to appear before the prosecution authority of the Republic, are directly linked with their trade union activities.
8. 1117. The Committee recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. Furthermore, the Committee recalls that the right of petition is a legitimate activity of trade union organizations, and persons who sign such trade union petitions should not be reprimanded or punished for this type of activity [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 799 and 508]. The Committee urges the Government, without delay, to provide detailed information on the reasons for the disciplinary measures applied to Mr Basila Baelongandi and Mr Bushabu Kwete, CCT officials, in June 2008 and January 2009, to indicate in particular whether they remain suspended from their posts and, if so, why. If it is found that the measures in question were motivated solely by their legitimate trade union activities, the Committee expects that the officials in question will be reinstated without delay and paid the wages arrears and other benefits owed to them, and that the Government will ensure that such acts of anti-union discrimination will not recur in future. If reinstatement is not possible for objective and compelling reasons, the Committee requests the Government to take the necessary measures to ensure that the trade union leaders are paid an adequate compensation which would represent a sufficiently dissuasive sanction for anti-union discrimination.
9. 1118. The Committee requests the Government to provide its observations without delay on the summons issued to Mr Bushabu Kwete by the national prosecution service and, in particular, to indicate the reasons for this.
10. 1119. As regards the appointment of a trade unionist who, according to the complainant, has no union mandate, to the Bonus Allocations Committee, the Committee notes that the General Secretariat for Trade identified and appointed the trade unionist in question in order to “win over the Secretariat”. Recalling that it is for trade unions to appoint their own representatives to consultative bodies, the Committee requests the Government to reply in detail to the complainant’s allegations in this regard without delay. The Committee also requests the Government, or the complainant, to provide information on the composition of the General Directorate for Administrative, Judicial and State Revenues (DGRAD) and to explain the role of the unions in this regard.

The Committee's recommendations

1. 1120. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee regrets that the Government has not replied to the complainant’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 this case. The Committee urges the Government to be more cooperative in the future.
   • (b) The Committee urges the Government without delay to provide detailed information on the reasons for the disciplinary measures applied against Mr Basila Baelongandi and Mr Bushabu Kwete, CCT union officials, in June 2008 and January 2009, indicating in particular whether they remain suspended and, if so, why. If it is found that the measures in question were motivated solely by their legitimate trade union activities, the Committee expects that the officials in question will be reinstated without delay and paid the wages arrears and other benefits owed to them, and that the Government will ensure that such acts of anti-union discrimination will not recur in future. If reinstatement is not possible for objective and compelling reasons, the Committee requests the Government to take the necessary measures to ensure that the trade union leaders are paid an adequate compensation which would represent a sufficiently dissuasive sanction for anti-union discrimination.
   • (c) The Committee requests the Government to provide its observations without delay on the summons issued by the prosecution service for Mr Bushabu Kwete to attend a hearing and, in particular, the reasons for the summons in question.
   • (d) The Committee, recalling that it is for trade unions to appoint their own representatives on consultative bodies, requests the Government to reply without delay in detail to the complainant’s allegations concerning the appointment of a trade unionist who, according to the complainant, has no union mandate, to the Bonus Allocations Committee.
   • (e) The Committee requests the Government, or the complainant, to provide information on the composition of the bodies within the DGRAD and to clarify the role of the unions in that regard.