Report in which the committee requests to be kept informed of development - Report No 383, October 2017

Case No 2949 (Eswatini) - Complaint date: 23-MAY-12 - Follow-up

Allegations: The complainant denounces its deregistration by the Government and the systematic interference by security forces against its activities

1. 609. The Committee last examined this case at its March 2016 meeting where it presented an interim report to the Governing Body [see 377th Report, approved by the Governing Body at its 326th Session (March 2016), paras 419–441].
2. 610. The Government sent its observations in a communication dated 12 September 2017.
3. 611. 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. 612. In its previous examination of the case at its March 2016 meeting, the Committee made the following recommendations [see 377th Report, para. 441]:
   • (a) The Committee trusts that, alongside the strengthening of tripartite consultations and social dialogue, the Government will endeavour to ensure that all the workers’ and employers’ federations, either seeking for registration or duly registered under the amended law, may fully exercise their trade union rights, including the right to engage in protest action and peaceful demonstrations in defence of their members’ occupational interests without any interference or reprisal against their leaders, in accordance with the principles of freedom of association.
   • (b) The Committee urges the Government to provide its observations on the allegations of arrest and conviction of two trade unionists of the Swaziland National Association of Teachers (SNAT) in February 2016 for participating in a protest action called by public sector unions.
   • (c) The Committee trusts that the Commissioner of Labour will endeavour to finalize the registration of the ATUSWA without delay as part of the drive for the strengthening of the national social dialogue since the amendment of the IRA in May 2015 and requests the Government to keep it informed of the steps taken in this respect.

B. The Government’s reply

1. 613. In a communication dated 12 September 2017, the Government provided detailed information with regard to the pending matters.
2. 614. The Government recalled that, pursuant to the amendment of the Industrial Relations Act (IRA) through Act No. 11 of 2014, a number of employers’ and workers’ organizations applied for registration and were duly registered. These include: the Trade Union Congress of Swaziland (TUCOSWA); the Federation of Swaziland Trade Unions (FESWATU); the Federation of Swaziland Employers and Chamber of Commerce (FSE/CC); and the Federation of the Swazi Business Community (FESBC). These organizations participate in the tripartite consultations and social dialogue structures of the country, such as the Labour Advisory Board (LAB) and the National Steering Committee on Social Dialogue (NSCSD). They also exercise their right to defend their members’ occupational interests by means of protest actions and demonstrations without any interference from the Government.
3. 615. The Government further indicated that on the aspect of union leaders suffering any threats of reprisal, criminal or civil prosecutions for any criminal, malicious or negligent acts committed by any person during peaceful protest actions as per the provisions of the impugned section 40(13) of the IRA, the amendment Act of 2014 deleted the impugned subsection (13) of section 40; hence removing the threat of criminal prosecution or delictual liability from trade union leaders for any criminal, malicious or negligent acts committed by any person during peaceful protest actions. Liability in respect of any criminal, malicious or negligent acts or conduct occurring during peaceful protest actions is now only limited to the actual perpetrator(s) and not the organizers or trade union leaders, as it were.
4. 616. With regard to the allegations of arrest and conviction of two trade unionists of the Swaziland National Association of Teachers (SNAT) in February 2016, the Government indicated that, in February 2016, TUCOSWA called for demonstrations in the country’s major cities, including the capital city, Mbabane. It is common that a majority of the public sector trade unions, including SNAT as an affiliate of TUCOSWA, participated in the said protest action.
5. 617. The Government asserted that the said protest action was characterized by elements of criminal and malicious conduct on the part of certain participants. As a result of these criminal and malicious acts, two participants in that protest action, namely Mr Mbongwa Earnest Dlamini and Mr Mcolisi Ngcamphalala were eventually arrested with criminal charges preferred against them by the Director of Public Prosecutions (DPP) for perpetrating criminal and malicious acts in contravention of Public Order Act No. 17 of 1963. The Government provided a verbatim from the charge sheet under Criminal Case No. 101 of 2016 (Magistrates’ Court – Mbabane) which read:
   • Contravening Section 11(1)(a) and (c) read together with Section 11(2)(b) of the Public Order Act No. 17 of 1963 in that upon or about the 3rd February, 2016 and at or near Mbabane in the Hhohho region, the said accused persons acting jointly and in furtherance of a common purpose, did wilfully and unlawfully place big stones on the road to the Cabinet offices of Swaziland with the intent to or knowing it to be likely that the act will impair the usefulness or efficiency or prevent or impede the working of the said road which is used by Government and did thereby contravene the said Act.
6. 618. The accused persons, who are legally represented in this criminal prosecution by a legal practitioner of their own choice, pleaded not guilty to the said offence and they have not as yet been convicted as the criminal prosecution of their case is still pending at the Mbabane Magistrates’ Court. The next session for the continuation of the criminal trial is set for 25 September 2017. The Government specified that the arrest and prosecution of the two individuals had nothing to do with their trade union activities. The two accused persons remain innocent until proven guilty by the court of law after the completion of the criminal trial.
7. 619. Finally, the Government informed that the registration of the Amalgamated Trade Union of Swaziland (ATUSWA) was finalized in May 2016 by the issuance of the certificate of registration No. 001/2016.

C. The Committee’s conclusions

1. 620. The Committee recalls that this case concerned originally the revocation of the registration of a workers’ federation by the Government and allegations of systematic interference by security forces against trade union activities. Previously, the Committee had welcomed the adoption of the Industrial Relations (Amendment) Act, 2014, introducing provisions concerning the registration of employers’ and workers’ federations, and consequently the registration of the TUCOSWA and other employers’ and workers’ federations in May–June 2015. The Committee also welcomed the indication that these federations were represented in consultative tripartite structures that have been established. However, the Committee expressed concern over reports of systematic interference of the security forces in trade union meetings.
2. 621. The Committee observes that many of these issues, in particular as regards the interference and intimidation of trade unionists during peaceful trade union activities, were raised by the Committee on the Application of Standards of the International labour Conference at its 105th Session (May–June 2016) when it discussed the application by Swaziland of Convention No. 87. In its conclusions, the Committee also invited the Government to accept a direct contacts mission which visited the country in May 2017 and produced a report.
3. 622. The Committee notes from the information made available by the Government to the direct contacts mission the publication (in December 2015) of a Code of good practice for managing industrial and protest action, and the tripartite workshop on the Code organized by the ILO in July 2016. The Committee, welcoming this positive development, encourages the Government to continue to take all necessary measures to allow workers’ and employers’ organizations to fully exercise their trade union rights, including the right to engage in protest action and peaceful demonstrations in defence of their members’ occupational interests, without interference or threat of reprisal against their members and leaders.
4. 623. With regard to the allegations of arrest of two trade unionists of the SNAT in February 2016, the Committee notes from the Government’s report that, in the context of a countrywide demonstration called for by TUCOSWA, with the participation of all public sector trade unions including SNAT, two participants in that protest action, namely Messrs Mbongwa Earnest Dlamini and Mcolisi Ngcamphalala were arrested with criminal charges preferred against them by the Director of Public Prosecutions for perpetrating criminal and malicious acts in contravention of the Public Order Act. According to the verbatim from the charge of the Magistrates’ Court, the two individuals did wilfully and unlawfully place big stones on the road to the Cabinet offices of Swaziland with the intent to, or knowing it to be likely that the act will impair the usefulness or efficiency or prevent or impede the working of the said road which is used by the Government and did thereby contravene the Public Order Act. The Committee notes the indication that the accused persons were legally represented in this criminal prosecution by a legal practitioner of their own choice and pleaded not guilty to the said offence. Noting that the case is still pending at the Mbabane Magistrates’ Court, with the next session for the continuation of the trial set for 25 September 2017, the Committee requests the Government to keep it informed of the court ruling in this case.
5. 624. Finally, the Committee welcomes the indication from the Government that the registration of the Amalgamated Trade Union of Swaziland (ATUSWA) was finalized in May 2016 by the issuance of the certificate of registration.

The Committee’s recommendations

1. 625. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee, welcoming reports of positive development, encourages the Government to continue to take all necessary measures to allow workers’ and employers’ organization to fully exercise their trade union rights, including the right to engage in protest action and peaceful demonstrations in defence of their members’ occupational interests, without interference or threat of reprisal against their members and leaders.
   • (b) The Committee requests the Government to keep it informed of the court ruling in the case of Messrs Mbongwa Earnest Dlamini and Mcolisi Ngcamphalala, members of the SNAT, who were arrested with criminal charges preferred against them for perpetrating criminal and malicious acts in contravention of the Public Order Act during a protest action.