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- 236. The complaint alleging violations of freedom of association in Mali was
- submitted in communications dated 22 March and 19 April 1988 by section III of
- the National Trade Union of Education and Culture (SNEC). The Government sent
- its observations and information on this case in a communication dated 10
- August 1988.
- 237. Mali 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. The complainant's allegations
A. The complainant's allegations
- 238. In their communications of 22 March and 19 April 1988 and in the
- documentation they enclose on this case, the Secretary-General of section III
- of the SNEC in the Bamako district, Mr. Modibo Diara, and the Acting
- Secretary-General of the section, Mr. Youssouf Ganaba, allege that the
- Government infringed their trade union rights following a strike by their
- trade union section, which was held from 15 to 20 February 1988.
- 239. Giving an outline of the trade union legislation in Mali, they explain
- that strike action is authorised under the Constitution and in regulations
- made under the Act of 7 July 1987 (Act No. 87-47/AN-RM). They denounce the
- reprisals to which they were subjected for having gone out on strike because
- their salaries were at least three months in arrears.
- 240. Going into more detail, they point out that under a decision of 9
- December 1986, the Ministry of Labour transferred 84 teachers in the middle of
- the school year. They submit, as an enclosure, decision No. 25/60 MEN-DNEF
- which includes the names of the transferred teachers and the places to which
- they were appointed. The two signatories of the complaint are included in this
- list of teachers. The complainants explain that the teachers transferred were
- already having to cope with the deprivation caused by the three months'
- overdue payment of their salaries, when they received the order to transfer to
- schools where their colleagues had not been paid any salary for four or five
- months. The complainants add that these transfers were arbitrary in so far as
- they did not take into account the social conditions of the persons
- transferred (separation of families, disruption of children's studies,
- transfer of pregnant women). Furthermore, the transferred teachers allegedly
- did not receive any compensation or salary advances to enable them to take up
- their posts, whereas advances of this kind were provided for by law.
- 241. Furthermore, the two signatories of the complaint add that they
- themselves were dismissed for having allegedly deserted their posts. However,
- they allege that the competent national authorities, i.e. the Transit Service,
- considered that the decision of 9 December 1986 transferring them to another
- post was null and void. This Service had requested that the said decision of
- transfer be updated so that those concerned might be given a transport voucher
- enabling them to take up their posts. However, the Ministry of Labour
- allegedly refused to update the decision of transfer and insisted on the fact
- that it was still valid. The two signatories of the complaint admit that they
- did not take up their posts but explained that they could not do so because
- they had to cope with the problem of their families' survival.
- 242. The complainants also allege the dismissal and disappearance of Issa
- N'Diaye, teacher of philosophy at the Higher Teacher Training Institute (Ecole
- normale supérieure) and the detention of Charles Danioko and Komaka Keita,
- teachers of history and geography and sociology, respectively, in this same
- school, at the Gendarmerie barracks No. 1. According to the complainants,
- these teachers had been accused of calling the students' march in their school
- in support of the teachers.
- 243. Finally, it would seem from the documentation enclosed with the
- complaint that the executive of the National Trade Union of Education and
- Culture did not back the striking unionists' claims for the payment of arrears
- on their salaries; on the contrary, by means of a decision of 10 March 1988
- sent on 14 March by the Secretary-General of SNEC, Mr. Simaga, it suspended
- one of the complainants in this case, i.e. Modibo Diara, Secretary-General of
- section III, from any trade union and semi-official trade union activity.
- 244. In an open letter sent to the Secretary-General of SNEC, enclosed with
- the complaint, Modibo Diara protested against his suspension from "any trade
- union and semi-official trade union activity" with the formal order to
- "refrain from any SNEC trade union work throughout the country until the next
- ordinary congress of the organisation", proclaimed by the SNEC Executive. He
- pointed out that this suspension was contrary to the procedure laid down in
- the statutes and regulations of the SNEC. Indeed, according to this open
- letter, although the executive or any other body might suspend one of its
- members, the national body cannot individually suspend the members of another
- body (section, division, subdivision or committee) because it did not elect
- the members of the other level bodies.
- 245. Turning to the facts in this open letter, the complainant points out
- that whilst he was Secretary-General of section III of the SNEC, in the Bamako
- district, the only fault committed by his section was to remain faithful to
- the legitimate aspirations of its activists concerning the chronic delay in
- the payment of teachers' salaries and benefits as well as in their promotions
- and reclassifications. In this respect, the complainant quotes the resolution
- of the congress which "urges the national executive of the National Trade
- Union of Education and Culture to engage, in co-operation with the other
- national trade unions and the National Union of Workers of Mali, in the
- struggle to obtain rights that have been undermined (salaries and benefits,
- promotions, reclassifications); failing this, the congress will undertake the
- struggle alone". The complainant goes on to say in the open letter that as
- part of its campaign, section III, acting in a democratic and legal way, took
- steps in November 1986 - given that salaries were three months overdue - to
- persuade the executive to take joint action, as most of the divisions and
- sections were calling upon the executive to do something other than engage in
- eternal and unsuccessful negotiations. However, the Secretary-General and
- several members of the executive riposted by doing everything they could to
- break this lawful strike, acting worse than the employer, with a view to
- isolating section III from the other sections in Bamako which none the less
- had the same problem. Section III's strike of November 1986 nevertheless
- succeeded and the other sections understood that the struggle was necessary;
- it is for this reason that the national strike of December 1986 was held.
- 246. According to this open letter, in October 1987, the same problem of
- salaries in arrears occurred again and, in December 1987, section III wanted
- to give notice of a strike; this failed when the SNEC executive decided to
- take action. Indeed, after many hesitations, the SNEC executive decided to
- lodge a strike notice but this was lifted less than 48 hours later. Section
- III was therefore obliged to lift its own notice of strike action.
- 247. The complainant points out that in February 1988 the situation remained
- the same and that section III, faithful to the aspirations of its activists,
- once again gave notice of a five-day strike, from 15 to 20 February; on
- Wednesday, 10 February, all the representatives from committees in the city of
- Bamako, convened by the district co-ordination committee, backed section III's
- plan to carry out the strike, although the representatives of the committees
- feared that the executive would change its mind. However, according to the
- open letter, the strike was a success because more than 90 per cent of
- teachers participated in it. As an immediate consequence of the strike, 71
- teachers, three workers from the National School of Teachers and the
- Secretary-General and Acting Secretary-General of section III were
- transferred. In the case of the two latter officials, their transfer was
- ordered under the earlier decision of 9 December 1986 to which was attached a
- transfer application form for use in any updating. However, this document had
- been declared illegal by the Transit Service and those concerned were unable
- to procure a transport voucher.
- 248. According to the open letter, the reprisals taken in the form of
- transfers were aimed at discouraging any other strike and therefore any claims
- or action from the employees. It is for this reason that section III asked the
- teachers to stay where they were - not out of bravado but because of the
- significance of what was at stake. A choice had to be made between taking a
- firm stand so that the law would be respected in the future or foregoing
- acquired rights and bending to the employers' illegal and arbitrary action -
- with all the extremely negative repercussions this would have had on trade
- unionism. Disagreement arose because of differences of opinion between section
- III, which wanted to take a firm stand, and the Secretary-General of SNEC who,
- according to this letter, had acted as a strike breaker amongst the teachers
- who had been transferred, resorting to threats, intimidation and even
- corruption - not in the interest of the trade union movement but in
- collaboration with the employer.
- B. The Government's reply
- 249. In its communication of 10 August 1988, the Government acknowledges
- that the texts regulating freedom of association and the right to strike are
- indeed the Constitution of 2 June 1974 and its article 13, which guarantees
- all citizens within the law the right to establish organisations of their own
- choosing to defend their occupational interests, and Act No. 87-47/AN-RM of 10
- August 1987, which establishes the legal framework of the right to strike in
- the public services, as well as Conventions Nos. 87 and 98 ratified by Mali.
- The Government nevertheless notes that Article 8 of Convention No. 87, whilst
- recognising the trade union rights of workers' and employers' organisations,
- obliges them to respect the law of the land, like other persons or organised
- collectivities.
- 250. The Government explains that as regards strikes, Act No. 87-47/AN-RM is
- the basic law in the country. The said Act determines the circumstances in
- which the right to strike may be exercised. In this context, it stipulates
- that strikers must clear the premises and not infringe the right to work
- (section 11).
- 251. The Government goes on to say that in the case in point, several
- strikers, including the complainants, entered educational establishments and
- openly sought to prevent non-striking officials from working. Correspondence
- from the headmasters bears witness to this fact. By acting in this way, the
- strikers were no longer covered by the legal guarantees and regulations to
- which they might lay claim because they infringed not only the provisions of
- section 11 of Act No. 87-47/AN-RM but also those of Article 8 of Convention
- No. 87.
- 252. As regards the transfer of 84 teachers, including the complainants, the
- Government explains that under the general regulations of the public service,
- a public servant may be transferred at any time throughout his career. In the
- case in point, the transfer of the teaching staff decreed in decision No.
- 2560/MEN-DNEF of 9 December 1986 was aimed at redeploying the staff within the
- department to make up for the lack of teachers in the interior of the country.
- However, after the trade union federation had intervened, a successful
- solution was found for those in social need.
- 253. However, the Government adds that several teachers, including precisely
- the complainants, did not take up the posts to which they were appointed
- before the strike of 15 to 20 February 1988, in spite of the various formal
- warnings issued during the period preceding the strike. In such a case, the
- legislation and regulations in force are clear. Under section 12 of Act No.
- 84-45/AN-RM of 9 July 1984, amending and supplementing Ordinance No.
- 77-71/CMLN of 26 December 1977 regulating the public service, "the public
- servant shall occupy the post to which he is assigned". He is bound to be
- punctual in his working hours and to accomplish personally and attentively all
- obligations incumbent upon him in the course of his duties. The same Act, in
- section 2, adds to article 122 of the public service regulations a paragraph
- which reads as follows: "a public servant deserting his post shall also be
- automatically dismissed", as this is an infringement of the provisions of
- section 12 above. Furthermore, Circular No. 7/MT-FP-CAB of 28 July 1984
- concerning methods to enforce dismissal when an official has deserted his
- post, as defined under the above-mentioned Act, deems that the public servant
- deserts his post if he does not take up the appointment to which he has been
- assigned or does not come back to work after a period of leave and, generally
- speaking, if the public servant takes unauthorised leave - unless he provides
- justification for his unauthorised absence.
- 254. The Government points out that if a public servant finds himself in one
- of the situations listed in the Circular, he is automatically dismissed
- without any disciplinary proceedings, apart from a warning allowing the
- official an opportunity to state his case and informing him of the penalties
- to which he is liable. The warning notice is a preliminary step before a
- dismissal for desertion of post; it was therefore sent to the two complainants
- and contained details on the consequences that might arise from failing to
- respect the order. The complainants, by refusing to comply with their transfer
- order, voluntarily put themselves at variance with the legislation in force.
- 255. More generally, the Government stresses that binding decisions must be
- applied immediately because they are presumed to be in conformity with the
- law; even if the citizen is persuaded that they are illegal, he must comply
- with them until they have been examined by the courts. It is only after having
- carried out an order that he might refer the matter to the courts if he
- challenges the rights of the administrative authority.
- 256. In any case, the fact that the teachers did not agree with their
- transfer was not enough to justify their refusal to take up the post to which
- they had been assigned, even if later they were intending to appeal to the
- competent legal authority. Furthermore, they did their utmost to disrupt the
- normal course of education during a strike which took place 15 months after
- they had been notified of their transfer. The Government adds, for information
- purposes, that the two complainants received their salaries until they were
- removed from the public service.
- 257. Concerning the validity of the transport voucher, the Government
- stipulates that a binding decision is valid for an indeterminate period of
- time and that its effects can only cease if the administration decides to
- repeal or withdraw the decision. In other words, as the decision of transfer
- authorising the issue of a transport voucher by the Transit Service had not
- been revoked by the Ministry of National Education, it remained valid as long
- as the persons concerned had not benefited from the right to use state means
- to take up the new posts. According to the Government, the administrative
- transit service could not, contrary to the complainants' allegations, be
- opposed to such an action. Furthermore, the complainants only approached the
- Transit Service one week after the warning they had received had expired,
- which demonstrates their unequivocal intention not to comply with the order.
- 258. Concerning the case of Issa N'Diaye, the Government states that this is
- a specific case which differs from that of the other complainants. Mr. Issa
- N'Diaye had been transferred from a school to another establishment in the
- same town (Bamako). Although he was previously consulted before the decision
- to transfer him was taken, he refused to take up his new post, i.e. Director
- of Studies at the National School of Engineers. His refusal to take up the
- post to which he was assigned, in spite of the warnings he received,
- constitutes, under the legislation on desertion of post, a serious
- misdemeanour which is penalised by automatic dismissal. The decision to
- transfer the person in question, under decision No. 0084/MEN-DNESPS of 22
- January 1988, was taken before the strike of 15 to 20 February 1988, to which
- the complainants seem to link all the administrative decisions.
- 259. Concerning the cases of Charles Danioko and Komakan Keita, the
- Government admits that they were arrested by the police during a student
- demonstration; it explains that they were arrested for having encouraged the
- students to go on a march. However, after inquiries made and steps taken by
- the National Union of Malian Workers and the National Trade Union of Education
- and Culture, they were purely and simply released.
- 260. In conclusion, the Government considers that, in the light of all that
- has been described above, the complainants, by subordinating the
- administrative decisions to the strike, clearly acted in bad faith, especially
- in view of the fact that all the documents show that the decisions were taken
- before the strike. Furthermore, not only were the complainants satisfied with
- holding the law of their country up to ridicule, they set out to spread
- confusion in the schools to which they no longer belong in any capacity. The
- Government considers that Mali is a State which respects the law and has
- always correctly applied the Conventions it has ratified. In this context, the
- body of national law which contains the principles of these instruments
- guarantees basic human rights to its citizens in conformity with the ILO's
- objectives.
C. The Committee's conclusions
C. The Committee's conclusions
- 261. The Committee notes that this complaint concerns reprisals allegedly
- taken against trade union activists and officials by the Government, following
- several strikes called by Mali teachers to put forward economic and social
- claims, on the grounds that their salaries were in arrears for several months
- during 1986, 1987 and 1988.
- 262. The Committee has noted the detailed explanations provided both by the
- complainants and the Government on this matter. First of all, it observes that
- under Mali legislation, strikes are authorised in the teaching sector after
- notice has been given, in conformity with the principles generally recognised
- in the field of freedom of association.
- 263. In the second place, however, it would seem that in this case,
- according to the complainants, although the strikers did give strike notice,
- the SNEC executive sought to break the strike by changing its mind and lifting
- the notice. However, according to the complainants, 90 per cent of teachers
- took part in the protest action.
- 264. On the other hand, according to the Government, the strikers infringed
- the right to work of those who were not striking. The Government acknowledges
- that the two trade union officials who are complainants in this case were
- transferred and then dismissed after the strikes; however, it states that they
- were dismissed because they refused to take up their posts. It also mentions
- that another teacher, transferred before the strike in February 1988, was
- also dismissed for failure to take up his post. Finally, it confirms the
- arrest of two teachers during a student march but states that the two persons
- concerned were later released after the national trade union organisations had
- interceded on their behalf.
- 265. In similar cases concerning violations of the right to strike, the
- Committee has pointed out, on many occasions, that the right to strike is one
- of the essential means through which workers, including teachers, should be
- able to promote and defend their occupational interests and that the
- prohibition of strike pickets is justified only if the strike ceases to be
- peaceful. (See 217th Report, Case No. 1089 (Upper Volta), para. 240.)
- 266. The Committee also recalls the importance it attaches to the principle
- that nobody should be subjected to discrimination in employment on account of
- his legitimate trade union membership or activities, including the exercise of
- the right to strike to settle collective disputes concerning claims of an
- economic and social nature.
- 267. Indeed, one of the basic 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, and that 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. The Committee has considered
- that the guarantee of such protection in the case of trade union officials is
- also necessary in order to ensure that effect is given to the fundamental
- principle that workers' organisations shall have the right to elect their
- representatives in full freedom.
- 268. In the present case, the Committee notes that, at first, the Government
- ordered many transfers during the school year, following an initial strike in
- December 1986; it subsequently made further transfers and ordered dismissals
- and arrests following strike action in February 1988. In these circumstances,
- the Committee cannot be satisfied with the Government's comments that the
- strike infringed the right to work of those not striking, even more so since
- the Government does not deny that teachers had not been paid their salaries
- for several months.
- 269. The Committee considers that the transfers and dismissals carried out
- in this case constitute an infringement of freedom of association and it
- requests the Government to ensure the reinstatement of the dismissed teachers,
- including Modibo Diara and Youssouf Ganaba.
- 270. As regards the arrest of Charles Danioko and Komakan Keita for having
- organised a march of students from their school to support the teachers, the
- Committee, whilst noting with concern that the Government itself acknowledges
- that those in question were arrested by the police for having encouraged the
- students to go on a march, observes that these two teachers were released
- after the national trade union organisations had intervened.
- 271. In the Committee's opinion, the right to strike and that of organising
- trade union movements or solidarity marches are essential elements of trade
- union rights, and the measures taken by the authorities to ensure the
- observance of the law should not therefore result in preventing unions from
- organising meetings during labour disputes. (See Second Report, Case No. 28
- (United Kingdom/Jamaica), para. 68; 22nd Report, Case No. 148 (Poland), para.
- 102; and 71st Report, Case No. 273 (Argentina), para. 75.)
- 272. As it is pointed out in the resolution concerning trade union rights
- and their relation to civil liberties, adopted by the International Labour
- Conference at its 54th Session in 1970, the absence of civil liberties removes
- all meaning from the concept of trade union rights, and the rights conferred
- upon workers' and employers' organisations must be based on respect for civil
- liberties.
- 273. In the present case, the Committee notes that the students' and
- teachers' march was motivated by economic and social claims because the
- payment of teachers' salaries was long overdue. In these circumstances, the
- Committee considers that the arrest of trade unionists, for the mere reason
- that they had organised a peaceful march to make economic and social claims,
- constitutes a violation of freedom of association.
The Committee's recommendations
The Committee's recommendations
- 274. In the light of its foregoing conclusions, the Committee invites the
- Governing Body to approve the following recommendations:
- a) The Committee recalls that the right to strike is one of the essential
- means through which workers and their organisations, including teachers,
- should be able to promote and defend their occupational interests.
- b) The Committee also recalls that the right to strike and that of
- organising union meetings and solidarity marches are essential elements of
- trade union rights.
- c) The Committee considers that the anti-union reprisals, especially the
- transfers, dismissals and arrests of trade unionists decided upon by the
- Government of Mali following strikes called by teachers because their salaries
- were several months' overdue between 1986 and 1988, constitute an infringement
- of the freedom of association of these teachers.
- d) The Committee requests the Government to ensure the reinstatement of
- those teachers dismissed as a result of lawful trade union activities,
- including Messrs. Modibo Diara and Youssouf Ganaba, trade union officials of
- section III of the SNEC in the Bamako district, and to keep it informed of
- measures taken in this respect.
