Rapport définitif - Rapport No. 218, Novembre 1982

Cas no 1088 (Mauritanie) - Date de la plainte: 22-OCT. -81 - Clos

1. 125. The complaint of Mr. Robert Cheikh Malainine and Mr. Sow Mama Demba, General Secretary and Deputy General Secretary respectively of the Union of Workers of Mauritania, is contained in communications of 22 October and 6 November 1981.
2. 126. In the absence of the observations expected from the Government, the Committee first adjourned its examination of this case in February 1982.1 At the same time, in view of the nature of the allegations dealing in particular with interference in trade union activities, the ILO sent a telegram on 26 April 1982, asking the Government to send its observations as soon as possible.
3. 127. At its May 1982 meeting, as the Committee had still not received any reply from the Government on the case in spite of the time which had elapsed, it requested the Government to forward a reply as a matter of urgency and pointed out that, in conformity with the procedure set out in paragraph 17 of its 127th Report, approved by the Governing Body, it would present a report at its next meeting on the substance of the case even if the Government's observations had not been received at that date. On 24 August 1982 the ILO sent the Government a second telegram again asking it to send its observations as soon as possible.
4. 128. As it has still not received the Government's information and observations on the matter, the Committee can only regret that the Government has not yet sent them and it is obliged, because of the time which has elapsed, to examine the case without being able to take this information into account.
5. 129. Mauritania has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 130. In this case, Mr. Robert Cheikh Malainine and Mr. Sow Mama Demba, General Secretary and Deputy General Secretary of the Union of Workers of Mauritania, allege interference by the Military Committee for National Salvation in trade union affairs.
2. 131. According to Mr. Cheikh Malainine, on 18 June 1981 the Government (by Instruction No. 3, a copy of which he supplies) planned in his absence while he was in Geneva at the International Labour Conference, to hold trade union congresses without first consulting the unions. The Government also stipulated the status of the trade union members who could participate in the congresses, contrary to the by-laws and internal regulations of the central trade union organisation and the unions.
3. 132. The complainant goes on to explain that the Government's interference became even more serious when the Military Committee supervising the Congress of the Union of Workers of Mauritania (UTM) decided not to invite the elected members of the Central council, thereby disregarding the organisation's by-laws. The Committee also decided on the participation in the proceedings of the Congress of representatives of the National Union of Health Workers which, according to the complainant, is not a member of the organisation.
4. 133. The complainant states that this blatant interference resulted in the withdrawal from the Congress of the members of the National Executive, of the majority of the General Secretaries and delegates of the trade unions, and of the majority of the regional and departmental delegates of the UTM. According to the information available, the Congress was in fact held as from 20 October 1981.
5. 134. In his communication of 6 November 1981, the Administrative Secretary of the UTM adds that, after the General Secretary, Robert Cheikh Malainine, had been summoned by the Minister of the Interior and the Chief of the Police (sûreté) on 14 and 15 October the police placed the Workers' Education Centre under the supervision of police officer Magatt Gaye; the doors of the UTM's headquarters were smashed in and the next day the UTM's accountant was obliged under duress to divulge the union's accounts.
6. 135. Since then, according to the communication, a wave of administrative repression has broken over the officials of the confederation; the General Secretary has been removed from office and his car taken away, the organisation's Secretary, Isselnan o/Khairy, has been relieved of his duties and transferred to the interior of the country (the tenth region), and the Secretary for External Relations, Sid'Ahed o/Ahed, has been transferred to the east of the country.

B. The Committee's conclusions

1. 136. The Committee recalls that at its meeting in May-June 1982, the Governing Body had advised the Government that the Committee could, at its next meeting and in accordance with its procedure, present a report on the substance of the case even if the Government's observations had not yet arrived. The Committee has still not received those observations.
2. 137. In the circumstances, and before examining the substance of the case, the Committee considers it necessary to recall the considerations it set out in its first report, and which it has several times had occasion to repeat: the purpose of the whole procedure is to promote respect for trade union rights in law and in fact, and the Committee is confident that, if the procedure protects governments against unreasonable accusations, governments on their side will recognise the importance of formulating for objective examination detailed replies to the substance of the allegations.
3. 138. The Committee deeply regrets that the Government has not sent any reply and that it is obliged, because of the time which has elapsed, to examine the case without being able to take account of the Government's observations.
4. 139. The Committee notes that this case concerns alleged interference in trade union affairs by the Government of Mauritania.
5. 140. From the documentation communicated by the complainants, the Committee notes that Instruction No. 3 was sent by Commander Mohamed Sidina Ould Sidiya, Permanent Secretary of the Cultural and Social Commission of the Military Committee for National Salvation, to the Chief of the National Police ("sûreté"), to the commanders of the military regions, to the Director of Military Engineering, to the head of the National Navy and to the district governors. The Instruction contains directives relating to the holding of trade union congresses.
6. 141. The Preamble to the instruction is couched in the following terms:
   • As you know, the Military Committee for National Salvation decided at its meeting of 1 June 1981 to continue the work of reorganising the trade union movement.
   • In accordance with the established procedure, the end of the general assemblies held as a result of new memberships must allow for the holding of trade union congresses.
   • As in previous phases, these congresses shall take place in a calm, objective and particularly democratic climate. The selections and votes shall be completely free and the workers shall therefore be accountable only to their consciences.
   • In addition to the outgoing executive, only delegates who are eligible to vote and duly appointed by general assemblies may participate in the congresses.
   • In accordance with section 50 of the internal regulations of the UTM, the outgoing executive shall nominate an appointments Committee which in its turn shall nominate the union's new executive to the congress.
   • In the event of the nomination obtaining a majority, it shall be confirmed.
   • If it fails to do so, the delegates to the congress shall make nominations to the congress and those obtaining a majority of the votes shall be accepted.
7. 142. The text then refers to the attributions of the congress which are to consist of drawing up the by-laws and internal regulations of the trade union concerned. The Instruction recalls that the by-laws must comply with the provisions of Act No. 70/030 of 23 January 1970. The text then mentions the date on which the trade union congresses are to be held, that is between 20 June and 21 July 1981, and provides for the appointment of supervisory subCommittees responsible for attending carefully to the smooth running of the congresses. These subCommittees are to be made up of the Chief of the Police ("sûreté") and the commanders of the military regions, the Deputy Governor responsible for Social Affairs, the Regional Chief of Police ("sûreté"), the commander of the local gendarmerie, the Deputy Inspector of the National Guard, the regional labour inspector and the Police Commissioner.
8. 143. With regard to the complainants' allegation concerning the military government's convening of trade union congresses, the Committee, despite not having the Government's explanations concerning the reasons which led it to convene the said trade union congresses, recalls the importance which it attaches to respect for Article 3 of Convention No. 87, ratified by Mauritania, which provides that workers' organisations shall have the right to draw up their constitutions, to elect their representatives, to organise their administration and activities and to formulate their programmes without interference by the public authorities. The Committee also recalls that freedom of assembly for trade union purposes constitutes one of the fundamental elements of trade union rights and that freedom from government interference in the holding and running of trade union meetings and, a fortiori, trade union congresses, constitutes an essential element of trade union rights and that the public authorities should refrain from any interference which mould restrict this right or impede the lawful exercise thereof.
9. 144. In the present case, the Committee points out that the military authorities convened the above-mentioned congresses and that, according to Military Instruction No. 3, supervisory subCommittees made up in particular of military and police authorities were responsible for attending carefully to the smooth running of the congresses. In these circumstances, the Committee draws the Government's attention to the fact that military and police intervention in the convening and running of trade union congresses are contrary to the principles of freedom of association and invites the Government to refrain from any such intervention.
10. 145. With regard to the complainants' allegation of the occupation of trade union premises, the Committee, despite not having the Government's explanations in this respect, it can only point out that the Resolution concerning trade union rights and their relation to civil liberties, adopted by the International Labour conference at its 54th Session (1970), considers that the right to the protection of the property of trade union organisations constitutes one of the civil liberties which are essential to the normal exercise of trade union rights. While recognising that trade unions, like other associations or individuals, cannot expect immunity from searches of their premises, the Committee has always considered that such intervention should only take place after a warrant has been issued by the ordinary judicial authority, when that authority is convinced that there are sound reasons for supposing that the necessary evidence will be found to bring a charge for an offence and on condition that the search is limited to the purpose for which the warrant was issued.
11. 146. In this case, although the Government has not replied, the Committee notes that, according to the complainants, the purpose of the occupation of the Workers' Education Centre and the headquarters of the UTM on 14 and 15 October 1981 was to force the UTM's accountant to divulge the accounts.
12. 147. The Committee recalls that the supervision exercised by the public authorities over trade union finances should not go beyond the obligation to submit periodic reports and that inquiries should be limited to suspected irregularities arising out of the presentation of annual financial reports or complaints from trade union members. The Committee therefore requests the Government to ensure that the officials who are responsible for such checks only carry them out under a court order so as to guarantee the unions an impartial and objective procedure.
13. 148. Finally, the Committee points out that, according to Military Instruction No. 3, the texts of trade union by-laws, which must be drawn up by the congresses convened by the Government, must comply with Act No. 70/030 of 23 January 1970.
14. 149. As far as the Committee is concerned, on this point it can only emphasise the observations made over a period of years by the Committee of Experts on the Application of Conventions and Recommendations, pointing out to the Government that the provisions of Act No. 70/030 of 1970 respecting the requirement of a single union for each undertaking, trade or occupation are not in accordance with Article 2 of the Convention which guarantees workers the right to form unions of their own choosing. The Committee moreover recalls that the Government has given assurances regarding amendments to the legislation which were due to be adopted in order to bring it into line with the provisions of the Convention, and trusts that these amendments will be promulgated in the near future.

The Committee's recommendations

1. 150. In these circumstances, the Committee recommends the Governing Body to approve the following conclusions:
   • (a) The Committee deeply regrets that the Government has not sent its observations in spite of several requests to do so. The Committee has therefore been obliged to examine the case in the absence of these observations.
   • (b) The Committee draws the Government's attention to the fact that the convening and supervision of trade union congresses by the military and police authorities are contrary to the principles of freedom of association. It therefore invites the Government to refrain from any intervention in the convening and running of trade union congresses.
   • (c) The Committee recalls that the International Labour Conference, in its 1970 Resolution concerning trade union rights and their relation to civil liberties, considered that the right to protection of the property of trade union organisations constitutes one of the civil liberties which are essential to the normal exercise of trade union rights.
   • (d) The Committee considers that supervision by the public authorities over trade union finances should be limited to suspected irregularities and to complaints, and should only be carried out under a court order and under the supervision of the judicial authority. Consequently, the Committee requests the Government to ensure that the financial supervision by the public authorities over trade union finances is only carried out by officials under a court order and under the supervision of the judicial authority in order to provide the unions with guarantees of an impartial and objective procedure.
   • (e) The Committee trusts that Act No. 70/030 instituting a trade union monopoly within the undertaking and by trade and occupation will be amended, in accordance with the Government's own assurance, to enable the workers to form unions of their own choosing.
   • (f) Finally and in general, the Committee considers it appropriate to draw the attention of the Committee of Experts on the Application of Conventions and Recommendations to the deterioration in the trade union climate which can be seen from the complaint as a whole.