Informe provisional - Informe núm. 291, Noviembre 1993

Caso núm. 1699 (Camerún) - Fecha de presentación de la queja:: 26-ENE-93 - Cerrado

1. 516. In a communication dated 26 January 1993, the National Union of Teachers in Higher Education (SYNES) presented a complaint alleging the violation of freedom of association against the Government of Cameroon. The trade union later sent additional information on this matter in communications of 12 April and 12 July 1993. The Government, for its part, sent its comments and observations concerning this case in communications of 7 June and 9 September 1993.
2. 517. Cameroon has ratified both the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98). It has not ratified the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant's allegations

1. 518. In its communication of 26 January 1993 the SYNES alleges that the Government of Cameroon violated Conventions Nos. 87 and 98, which it has ratified, by refusing to recognize the union and by permitting attacks, intimidation, pressure and repression which make it dangerous if not impossible for independent trade unions to conduct their activities.
2. 519. This formal complaint follows a request dated 25 June 1992 in which the complainant trade union asked the International Labour Office to intervene. In its request the union reported that it was obstructed from operating in various ways. This communication was sent to the Government on 7 July 1992 so that it could provide its observations on the matter, but no reply was received.
3. 520. In its request for ILO intervention, the SYNES explained that the Minister of Higher Education, Computer Services and Scientific Research tried in a letter dated 21 October 1991 to make the union's establishment contingent upon legislation which does not exist. The Minister's letter referred to an Act of 19 December 1990 concerning freedom of association, which stipulated that trade unions were to be governed by specific texts which had not yet been adopted.
4. 521. In the same request, the SYNES reported that during the night of 11-12 December 1991 an attempt was made on the life of the president of the SYNES national executive committee, Mr. Jongwane Dipoko, in front of his residence.
5. 522. The SYNES also mentioned that it requested the use of premises at the university in order to carry out its trade union activities, but to no avail. Not only did the chancellor of the university refuse to let it use the premises; he banned the planned demonstrations on the grounds that the union had not been officially recognized. The SYNES, considering that this was contrary to Articles 2 and 3 of Convention No. 87, explains that it held a demonstration on the esplanade of the campus, since the administration had locked all the halls. As soon as its president began to speak the gathering was dispersed by the police. Since then, SYNES officials have been harassed on several occasions.
6. 523. In its complaint of 26 January 1993 the SYNES confirms the information supplied in its request for intervention, emphasizing the fact that the Minister of Higher Education tried to refer it to legislation which did not exist, while the Cameroon Workers' Trade Union Confederation (CSTC) and other trade unions affiliated with it and which are closer to the Government operate with no problem.
7. 524. The documentation included by the SYNES indicates that a constituent assembly held on 1 June 1991 established a permanent structure instituting this trade union, whose by-laws were registered at the Mfoundi prefecture in Yaoundé on 11 June 1991, under reference No. 773/AD/JO6/BAPP. None the less, the trade union did not receive administrative authorization to operate, on the grounds that, under Act No. 90/53 of 19 December 1990, certain provisions governing trade unions had yet to be adopted. The copy of the registration form dated 11 June 1991, bearing the letterhead of the Bureau for Associations and Political Parties, was signed on behalf of the Yaoundé prefect by a civil servant. This registration form certifies that the SYNES file was received complete with copies of its by-laws and a list of the members of its executive committee. The form also states that "this certificate in no way authorizes the trade union to conduct its activities before authorization is given by the Minister of Territorial Administration".
8. 525. The SYNES further deplores the fact that the attempt on the life of the president of its national executive committee in front of his residence has not yet been officially investigated, despite requests made to the administrative authorities.
9. 526. It also reports that, whereas the former Minister of Higher Education, who has since become the General Secretary of the Office of the President, made the establishment and operation of the SYNES contingent upon the adoption of the corresponding regulations called for by section 5(4) of Act No. 90/53 of 19 December 1990 concerning freedom of association, his successor is no longer officially requesting that these texts be adopted but is instead merely requesting an administrative report on the trade union.
10. 527. As regards the harassment of the SYNES since 23 June 1992, the complainant trade union explains that those union activists who observed its call to strike after wages were not paid and a member had been arbitrarily suspended, received "requests for an explanation", which are an administrative measure that precedes the taking of disciplinary action. Furthermore, a teacher, Mr. Noumba Issidor, was suspended for two years on the spurious grounds that his tests were subversive, without the least regard for the rules of disciplinary procedure or the actual facts. Finally, since November 1992 circulars from the chancellor of the University of Yaoundé and telexes from the Minister of Higher Education have been issued ordering teachers engaged in higher education to submit a file so that they can be paid by an agency set up for the purpose. According to the complainant trade union, the purpose of this measure is to challenge the special status of teachers engaged in higher education and the independence of the universities. In other words, it is questioning the usefulness of a trade union reserved for teachers engaged in higher education, which will become an administrative task like any other.
11. 528. In a subsequent communication dated 12 April 1993, the SYNES provides a copy of a letter sent by the Minister of Higher Education to the rector of the University of Yaoundé on 26 March 1993 asserting that "the SYNES cannot validly be considered a trade union", as well as a copy of a memorandum from the vice-rector of the University of Yaoundé dated 30 March 1993 which banned any activities on campus by the "illegal association known as the Union of Teachers in Higher Education (SYNES)". It also provides a copy of a "request for an explanation" sent by the authorities to a union activist, the head of the Press Department, who had saved computer files for publication under the titles "Tribalism, a monster" and "The press and African tyrants: Defending the status quo through outright lies".
12. 529. Finally, in a communication of 12 July 1993 the SYNES encloses a letter of 2 June 1993 from the rector of the University of Yaoundé to the president of the SYNES national executive committee. Without any preliminary investigations, the letter implicates the union in violent acts, arson and killings on campus. In the letter the rector recalls that "despite the instructions from the Minister of Higher Education banning any activity by the illegal trade union 'SYNES', this association is still holding meetings and circulating written calls to strike and other leaflets encouraging teachers to stop working". The rector therefore asks that "written instructions be issued calling on teachers to cease their activities in the illegal group known as the SYNES, which has allegedly supported acts of violence and killings perpetrated by the 'Parlement' students' group".

B. The Government's reply

1. 530. In its reply of 7 June 1993 the Government encloses a letter dated 19 January 1993 from the Minister of Higher Education concerning this affair. In it the Minister states that since the SYNES does not fulfil the legal requirements to form a trade union, and pending the adoption by the legislature of the necessary texts, the union has no legal existence anywhere in Cameroon. It therefore is not a legal entity and cannot operate legally or "present a complaint" against the Government of Cameroon to the International Labour Office.
2. 531. With regard to the substance of the affair, the Government presents the following observations concerning the creation of the SYNES in 1991: article 6 of the union's by-laws stipulates that "the SYNES may take a public stand at its general assembly by majority vote on any major subject concerning the life or future of the nation". According to the Government, the objective of any trade union should be the defence of its members' occupational interests. Under the terms of article 6, the SYNES is going beyond its normal and legitimate attributions and is seeking to involve its member teachers in forms of action that are dangerous both for them and for the nation as a whole.
3. 532. The Government sent the following observations on the form of the matter: in its view, the main legal issue in the case of the SYNES is whether or not it legally exists and, more precisely, which of the following texts should govern it: Act No. 68/LF/19 of 18 November 1968 (concerning occupational associations or unions not governed by the Labour Code) and Decree No. 69/DF/7 of 6 January 1969 made under the Act; Act No. 74/14 of 26 November 1974 instituting the Labour Code, as amended by Act No. 92/007 of 14 August 1992; or Freedom of Association Act, No. 90-53 of 19 December 1990. Section 1 of the first piece of legislation stipulates that people with the status of federal or federated public servants and public servants of Western Cameroon, with the exception of members of the armed forces or similar bodies and the police, may join occupational unions or associations as stipulated by Freedom of Association Act No. 67/LF/19 of 12 June 1967. Section 2 stipulates that the unions or associations covered by the Decree must be approved by the Minister of Territorial Administration, who is responsible for supervising civil liberties. Section 9 stipulates that the absence of any reply from the Minister of Territorial Administration within three months is tantamount to rejection of the request for approval. This Act therefore concerns only officials in the public service, whereas the SYNES includes both teachers in the public service and others on contract. The SYNES duly submitted its application for registration over a year ago; since it has so far received no reply from the competent minister, the application has effectively been rejected. The second text, the Labour Code of 1974 as amended in 1992, recognizes the right of workers and employers to establish trade unions or employers' associations freely and without prior authorization (section 3 of Act No. 74/14 of 27 November 1974) but stipulates that they have no legal existence until a registration certificate has been issued by the registrar of trade unions and employers' associations (section 6 of the same Act). Because, as mentioned above, the SYNES is a mixed union, this registration certificate has not been and cannot be issued. Only teachers under contract could put forward any such claim. The third text is the Act of 19 December 1992, section 1 of which stipulates that the freedom of association proclaimed in the preamble to the Constitution is recognized for all individuals and legal entities in the country. There are two procedures for association: association by declaration and association by authorization (section 5, paragraph 1). Foreign and religious associations are covered by the authorization procedure (section 5, paragraph 2). All other types of association are covered by the declaration procedure (section 5, paragraph 3). The declaration is made by the association's founders to the prefecture of the department where it has its headquarters. A receipt is issued if the act of association is not declared null and void (section 7, paragraph 1). The absence of any reply by the prefect within two months after registration of the declaration is tantamount to acceptance, making the association a legal entity (section 7, paragraph 3). While by definition (section 2) trade unions are associations since they are mentioned in the general provisions of the Act of 19 December 1990 concerning freedom of association, they are special associations and as such are governed by special texts. This is in accordance with the specific provisions of section 5, paragraph 4, of the Act, which stipulates that "political parties and trade unions shall be governed by specific texts". In this case, the SYNES, which claims to be a trade union, unfortunately followed the declaration procedure for associations referred to in section 7, paragraph 1, mentioned above, with the intention of obtaining a receipt and using it to claim legal personality two months later if the prefect did not respond (section 7, paragraph 3). This procedure is obviously illegal, since section 7, paragraph 1, covers only ordinary associations in the conventional sense of the word.
4. 533. The Government further points out that, although it is true that section 35 of the final provisions of the Act of 19 December 1990 stipulates that Act No. 67/LF/19 of 12 June 1967 on freedom of association is repealed and replaced by the new provisions and that no mention was made of the 1968 and 1974 laws (from which it might be concluded that these were not repealed), the fact remains that according to section 5, paragraph 4, "political parties and trade unions shall be governed by specific texts". This being the case, other than the texts on trade unions whose adoption is still pending (the texts governing political parties already exist), no other texts should be applicable, with the exception of Act No. 92/007 of 14 August 1992. (This Act was promulgated after the Act of 19 December 1990, but for the reasons mentioned above it is of no relevance to the SYNES.)
5. 534. The Government concludes by pointing out that it considers that the SYNES does not fulfil the conditions required by these texts and, pending adoption by the legislature of the future text, the SYNES is not a legal entity anywhere in Cameroon. According to the Government it therefore has no legal personality which would allow it to operate legally and to "present a complaint" against the Government of Cameroon to the International Labour Office.
6. 535. In a further communication dated 9 September 1993 the Government insists that article 6 of the SYNES' by-laws stipulate that "the SYNES may take a public stand at its general assembly by majority vote on any major subject concerning the life or future of the nation". It emphasizes that, while the future of the nation of Cameroon is of concern to all its citizens including those who are members of the SYNES, it is none the less true that an occupational trade union is not the appropriate place for discussion of this question. Indeed, Article 10 of Convention No. 87 stipulates that the aim of organizations is to defend "the interests of workers or of employers". As for Act No. 92/007 of 14 August 1992 promulgating the Labour Code, section 3 defines the nature of these interests. It stipulates that the objective of occupational associations is to study, defend, develop and protect their interests, especially those of an economic, industrial and agricultural nature. Obviously, the aim of occupational associations is the defence of the occupational interests of their members.
7. 536. Consequently, according to the Government, the SYNES has exceeded its function by addressing the future of the nation of Cameroon, and has thus excluded itself from the legal framework for occupational associations. Obviously, if the SYNES were to comply with the law nothing would stop teachers of higher education from exercising their fundamental right to freedom of association, provided these teachers are governed by the Labour Code. As for teachers of higher education who are public servants and are thus governed by the general statutes of the public service, they remain subject to Act No. 68/LF/19 of 18 November 1968 pending the adoption of the special texts called for by the Act of 19 December 1990 on occupational associations.

C. The Committee's conclusions

1. 537. The Committee observes that this complaint concerns the refusal by the Government of Cameroon to recognize the National Union of Teachers in Higher Education (SYNES), the fact that no official investigation has been conducted into the alleged attempted murder of the president of its national executive committee, the refusal to permit the union to use premises for its activities, the prohibition of any trade union activities by the SYNES and its members and the reported harassment of the union's members.
2. 538. The Committee observes that the Government states that the SYNES is not a legal entity and therefore cannot legally operate or "present a complaint" to the International Labour Office.
3. 539. In this regard, the Committee recalls that under the terms of the special procedure for the examination of complaints alleging infringements of trade union rights (paragraph 35 of the procedure), it has full freedom to decide whether an organization may be deemed to be an employers' or workers' organization within the meaning of the ILO Constitution, and it does not consider itself bound by any national definition of the term. Furthermore, the fact that an organization has not been officially recognized does not justify the rejection of allegations when it is clear from the complaints that this organization has at least a de facto existence (paragraph 38 of the procedure).
4. 540. In this case, the Committee observes that the teachers of higher education in Cameroon, be they civil servants or working under contract, formed a trade union with a permanent structure at a constituent assembly of 1 June 1991 and that they registered their by-laws and rules with the Mfoundi prefecture in Yaoundé on 11 June 1991, under reference No. 773/AD/JO6/BAPP. Furthermore, they were duly given a copy of the registration form. The Committee observes, however, that the copy in question, sent by the complainants, notes that "this certificate in no way authorizes the trade union to conduct its activities".
5. 541. The Committee notes that the Government emphasizes that article 6 of the SYNES' by-laws provides that "the SYNES may take a public stand at its general assembly by majority vote on any major subject concerning the life or future of the nation". It contends that the terms of Article 10 of Convention No. 87 states that the purpose of occupational associations is to defend "the interests of workers or of employers". It adds that section 3 of the Labour Code of 1992 defines the nature of these interests, stipulating that the objective of occupational associations is to study, defend, develop and protect their interests, and especially those of an economic, industrial or agricultural nature.
6. 542. The Committee observes that under the terms of article 5 of the SYNES' by-laws, the union's objectives are:
   • (a) to bring together all teachers of higher education around a single ideal to defend their material, academic and moral interests;
   • (b) to represent its members wherever necessary;
   • (c) to defend the quality of education and research;
   • (d) to ensure that the university, which is one of the nation's major strengths, consistently contributes to finding solutions to the country's problems;
   • (e) to raise the awareness of the teachers of Cameroon of the need for individual and collective behaviour commensurate with the universally recognized dignity of their profession;
   • (f) to assist in the social protection of teachers and their families by creating provident funds;
   • (g) to create the best possible working and safety conditions for teachers, students and technicians in training and research laboratories, amphitheatres and all work-related travel.
     • Under the terms of article 6, the SYNES is an independent trade union. It may take a public stand at its general assembly by majority vote on any major subject concerning the life or future of the nation. However, members are responsible for their own opinions and are free to join political or religious groups as they see fit.
   • 543. The Committee thus concludes that article 5 of the SYNES' by-laws, which sets the objectives of defending the material, academic and moral interests of teachers, providing social protection for teachers and their families by establishing provident funds, and creating the best possible working and safety conditions for teachers and laboratory technicians, is in conformity with Article 10 of Convention No. 87.
7. 544. As regards article 6, which emphasizes the union's independence, this article stipulates that the union's members are free to have their own opinions and authorizes the SYNES to take a stand by majority vote on major subjects concerning the life or future of the nation. The Committee considers that the desire of the SYNES to be independent, to leave its members free to formulate their own opinions and to take a stand by majority vote on the major subjects concerning the life or future of the nation is a legitimate objective. The Committee recalls, as did the Committee of Experts on the Application of Conventions and Recommendations in its 1983 General Survey on Freedom of Association and Collective Bargaining, that a trade union's activities cannot be restricted solely to occupational questions, since the choice of a general policy - in economic affairs for example - is bound to have consequences on the situation of workers (remuneration, holidays, working conditions, the running of enterprises, etc.). Developments in the trade union movement show that the promotion of working conditions through collective bargaining, though still a major feature of trade union action, increasingly involves participation by organizations in economic and social policy-making bodies. This in turn means that trade unions must be able to devote attention to matters of general interest - i.e. "political" in the broadest sense of the word - and that, for example, they must be able to express their views publicly on a government's economic and social policy, since the fundamental objective of the trade union movement is to ensure the development of the social and economic well-being of all workers (General Survey, paragraph 195).
8. 545. Furthermore, the Committee itself has already indicated in previous cases that normal control of the activities of trade unions should be effected a posteriori and by the judicial authorities; and that the fact that an organization which seeks to enjoy the status of an occupational organization might in certain cases engage in activities unconnected with trade union activities would not appear to constitute a sufficient reason for subjecting trade union organizations a priori to control with respect to their composition and with respect to the composition of their management committees. The refusal to register a union because the authorities, in advance and in their own judgement, consider that this would be politically undesirable, would be tantamount to submitting the compulsory registration of trade unions to previous authorization on the part of the authorities, which is not compatible with the provisions of Convention No. 87 (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 279).
9. 546. The Committee can only emphasize that by ratifying Convention No. 87 the Government of Cameroon committed itself to giving workers the right to establish and join organizations without previous authorization and without distinction whatsoever, thus obviously including civil servants and contract employees engaged in teaching.
10. 547. The Committee thus notes with concern that, contrary to the international commitments stemming from the ratification of Convention No. 87, the National Union of Teachers of Higher Education (SYNES) has still not been recognized as a legal entity, though it registered its request for recognition over two years ago.
11. 548. Furthermore, as regards the fact that the SYNES includes teachers in the public service, the Committee notes with regret, as did the Committee of Experts on the Application of Conventions and Recommendations in the observation it sent to the Government of Cameroon on the application of Convention No. 87 (International Labour Conference, 80th Session, 1993, Report III, part IV A, pages 176 and 177) that the new Labour Code does not repeal Act No. 68/LF/19 of 18 November 1968 which makes the legal existence of a trade union or occupational association of public servants contingent upon the prior approval of the Minister of Territorial Administration. It also regrets the wording of section 6(2) of the new Labour Code, which stipulates that persons forming a trade union that has not yet been registered and who act as if the said union has been registered shall be liable to prosecution, in violation of Article 1 of Convention No. 98, ratified by Cameroon, which provides that workers, and therefore including public servants and contract workers in higher education, shall enjoy adequate protection against acts of anti-union discrimination.
12. 549. The Committee thus urgently requests the Government to recognize the right of teachers in higher education to form a union of their own choosing, without prior authorization, and to amend its legislation and practice accordingly. It further requests the Government to ensure that unions are provided with premises for their activities, and to keep it informed of any developments in this respect.
13. 550. The Committee further recalls that freedom of association can only be exercised in a climate that is free from violence and fear, and observes with regret that the Government has not yet replied to the allegations of the SYNES concerning the alleged attempted killing of the president of the union's national executive committee in front of his residence or to allegations of attacks, intimidation and pressure against the union's members. It therefore requests the Government to send its observations on this matter.

The Committee's recommendations

1. 551. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Noting with regret that the National Union of Teachers in Higher Education has still not been recognized as a legal entity, though it registered its request for recognition in June 1991, over two years ago, the Committee urgently requests the Government to recognize the right of teachers in higher education, be they public servants or contract employees, to form a union of their own choosing, without prior authorization, for the defence of their occupational interests and to modify the legislation and practice accordingly. It further requests the Government to ensure that the teachers in higher education are provided with premises for their union activities, and to keep it informed of any developments in this respect.
   • (b) The Committee requests the Government to repeal Act No. 68/LF/19 of 18 November 1968 which makes the legal existence of a trade union of public servants contingent upon the prior approval of the Minister of Territorial Administration and to repeal section 6(2) of Act No. 92/007 of 14 August 1992 promulgating the Labour Code, which stipulates that persons forming a trade union that has not yet been registered and who act as if the said union has been registered shall be liable to prosecution, and which is at variance with the provisions of Conventions Nos. 87 and 98. It requests the Government to communicate information on measures taken to this effect.
   • (c) The Committee requests the Government to send its observations on the allegations of the complainant union concerning the attempted killing of the president of its national executive committee in front of his residence, as well as concerning attacks, intimidation and pressure against the union's members.
   • (d) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case regarding Conventions Nos. 87 and 98.