Interim Report - Report No 364, June 2012

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. 1009. The Committee last examined this case at its June 2011 meeting, when it presented an interim report to the Governing Body [see 360th Report, approved by the Governing Body at its 311th Session (2011), paras 1083–1092].
2. 1010. At its March 2012 meeting [see 363rd 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, approved by the Governing Body (1972), it could present a report on the substance of the case at its next meeting, even if the requested information or observations had not been received in time. To date, the Government has not sent any information.
3. 1011. 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. Previous examination of the case

1. 1012. In its previous examination of the case in June 2011, deploring the fact that, despite the time that had elapsed, the Government had not provided any information on the allegations, the Committee made the following recommendations [see 360th Report, para. 1092]:
   • (a) The Committee deeply deplores the fact that, despite the time that has elapsed since the complaint was presented in April 2009, the Government has still not replied to the allegations of the complainant organization, despite having been invited on several occasions, including by means of two urgent appeals, to present its observations on the allegations in reply to the recommendations made by the Committee in its previous examination of the case [see 356th and 359th Reports, para. 5]. The Committee notes with deep regret that the Government has still not provided any information whatsoever concerning three consecutive complaints presented since 2009, which have already been examined in the absence of a Government reply and which relate to serious violations of freedom of association. The Committee expects the Government to be more cooperative in 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.

B. The Committee’s conclusions

1. 1013. The Committee deeply deplores the fact that, despite the time that has elapsed since the presentation of the complaint in April 2009, the Government has still not replied to the complainant’s allegations, even though it has been requested several times, including through three urgent appeals, to present its comments and observations on the allegations and its response to the recommendations made by the Committee in its previous examination of the case [see 356th Report, 359th Report and 363rd Report, para. 5].
2. 1014. Hence, in accordance with the applicable procedural rules [see 127th Report, para. 17, approved by the Governing Body at its 184th Session (1972)], the Committee is obliged to present another report on the substance of the case without being able to take account of the information it had hoped to receive from the Government.
3. 1015. The Committee once again reminds the Government 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 ensure respect for trade union rights in law and in practice. The Committee is confident that, while this procedure protects governments against unreasonable accusations, they must recognize the importance of formulating, for objective examination, detailed replies concerning the allegations brought against them [see First Report of the Committee, para. 31].
4. 1016. The Committee deplores the fact that the Government has not yet provided any information whatsoever regarding the five consecutive complaints presented since 2009, which have already been examined in the absence of the Government’s reply and which allege grave violations of freedom of association. The Committee notes once again with deep regret that the Government continues to fail to comply, despite assurances given to the Chairperson of the Committee at a meeting held in June 2011. The Committee expects the Government to be more cooperative in the future. The Committee reminds the Government once again of the possibility to avail itself of the technical assistance of the Office.
5. 1017. In these circumstances, the Committee finds itself obliged to reiterate its previous recommendations and firmly expects the Government to provide information without delay, given the gravity of the allegations in this case.

The Committee’s recommendations

1. 1018. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) In general, the Committee can only deplore the fact that the Government has still not provided any information whatsoever regarding the five consecutive complaints presented since 2009, which have already been examined in the absence of the Government’s reply and which allege grave violations of freedom of association. The Committee notes once again with deep regret that the Government continues to fail to comply, despite assurances given to the Chairperson of the Committee at a meeting held in June 2011. The Committee expects the Government to be more cooperative in the future. With regard to the present case, the Committee deeply deplores the fact that, despite the time that has elapsed since the presentation of the complaint in April 2009, the Government has still not replied to the complainant’s allegations, even though it has been requested several times, including through three urgent appeals, to present its observations on the allegations and its reply to the recommendations made by the Committee.
   • (b) The Committee urges the Government to hold an independent inquiry without delay to elucidate the reasons for the arrests of the two Congelese Labour Confederation (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 requests the Government to accept a high-level mission to discuss all the complaints pending before the Committee concerning the Democratic Republic of the Congo.