Effect given to the recommendations of the committee and the Governing Body - Report No 388, March 2019

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

Effect given to the recommendations of the committee and the Governing Body

1. 18. The Committee last examined this case at its October 2017 meeting [see 383rd Report, paras 609–625]. On that occasion, the Committee took note of a number of initiatives taken by the Government to tackle the issue of interference and intimidation of trade unionists during peaceful trade unions activities and encouraged 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.
2. 19. In a communication dated 20 September 2018, the International Trade Union Confederation (ITUC) denounced the increasing use of security forces to interfere in peaceful activities organized by the Trade Union Congress of Swaziland (TUCOSWA), the Amalgamated Trade Union of Swaziland (ATUSWA) and the Swaziland National Association of Teachers (SNAT), including the arrest and detention of trade union leaders. According to ITUC, on 19 and 20 September 2018, a peaceful demonstration organized by TUCOSWA which received the approval of the Labour Advisory Board and went through the legal processes under the Public Order Act, was violently attacked by the police firing stun grenades and tear gas to disperse the workers. This crackdown is allegedly the latest of a series of violent interferences by security forces in trade union activities, including an attack by the police of a peaceful gathering organized by ATUSWA outside a textile factory in Nhlangano on 30 August 2018, the arrest of Mr Maxwell Myeni, Secretary of TUCOSWA and Lavumisa Local Shop Stewards Council member of the SNAT on 26 August 2018 and his detention for almost a month after being picked up and illegally charged under the Public Order Act, and earlier in August the shooting by the police at a peaceful meeting of members of the SNAT at the trade union centre.
3. 20. In a communication dated 2 February 2018, the Government informed, with regard to the Committee’s recommendation, that the 1963 Public Order Act which was questioned, inter alia, for allowing unwarranted and undue interferences by the security forces during trade union meetings and protest actions was repealed by the newly enacted Public Order Act No. 12 of 2017 which provided a clear regulation of public gatherings in a public place and a protest march or industrial action held at the instance of employees either within the employer’s premises or in a public place. Additionally, section 28 of the new Public Order Act provided for consultations between the responsible Ministry responsible for national security and the police service and relevant stakeholders to issue a code of good practice on gatherings to regulate or to provide for the responsibilities of parties prior, during and after the holding of a public gathering. The Government informed that the said Code of good practice was published under Legal Notice No. 201 of 2017. The Government also referred to a number of industrial actions, including strikes, which took place in 2017 indicating that they demonstrated that trade union rights to engage in protest and industrial action in defence of occupational interests are indeed protected, both in law and practice.
4. 21. Furthermore, in relation to the Committee’s request to be kept informed of the court ruling in the case of Messrs Mbongwa Earnest Dlamini and Mcolisi Ngcamphalala, members of the SNAT, who were arrested in February 2016 with criminal charges preferred against them for perpetrating criminal and malicious acts in contravention of the 1963 Public Order Act during a protest action, the Government informed that the prosecution was still on course and indicated that the final outcome of the court case would be transmitted to the Committee.
5. 22. The Committee must express its deep concern over the serious allegations of intimidation against trade union leaders and violent attacks of security forces against peaceful trade union gatherings, this despite the new measures from the Government to improve the handling of trade union gatherings in public places. The Committee firmly recalls that acts of intimidation and physical violence against trade unionists constitute a grave violation of the principles of freedom of association and the failure to protect against such acts amounts to a de facto impunity, which can only reinforce a climate of fear and uncertainty highly detrimental to the exercise of trade union rights. In cases in which the dispersal of public meetings by the police has involved loss of life or serious injury, the Committee has attached special importance to the circumstances being fully investigated immediately through an independent inquiry and to a regular legal procedure being followed to determine the justification for the action taken by the police and to determine responsibilities [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 90 and 104]. Furthermore, in relation to allegations of the arrest and detention of a trade union official, the Committee draws the Government’s attention to the fact that it is not possible for a stable industrial relations system to function harmoniously in the country as long as trade unionists are subject to arrests and detentions [see Compilation, op. cit., para. 127]. The Committee urges the Government to initiate an independent investigation with a view to determine the justification for the action of the police denounced by ITUC and responsibilities, and to keep it informed of its outcome.
6. 23. Observing that the Public Order Act of 1963 has been repealed and replaced in 2017 partially due to its non-conformity with freedom of association, the Committee trusts that the judiciary will bear in mind the principles previously recalled by the Committee when examining the charges against Messrs Mbongwa Earnest Dlamini and Mcolisi Ngcamphalala, members of the SNAT, for acting in contravention of the 1963 Public Order when exercising protest action in 2016. The Committee requests the Government to provide it with a copy of the judgment as soon as it is rendered.