Rapport intérimaire - Rapport No. 269, Novembre 1989

Cas no 1442 (Nicaragua) - Date de la plainte: 09-MARS -88 - Clos

1. 2. The Committee had before it a number of complaints of infringements of trade union rights and freedom of association in Nicaragua presented by the World Confederation of Labour (WCL) and the International Confederation of Free Trade Unions (ICFTU) as well as the International Organisation of Employers (IOE), and a complaint concerning the observance by Nicaragua of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144) made by a number of Employers' delegates to the 73rd (1987) Session of the International Labour Conference under article 26 of the Constitution of the ILO.
2. 3. The Committee submits, for the Governing Body's approval, a report on the pending cases and the complaint presented by virtue of article 26 of the Constitution of the ILO.
3. 4. For several years now, the Committee on Freedom of Association has had before it various complaints of violation of freedom of association and of the right to organise in Nicaragua. In addition, in a communication of 17 June 1987 several Employers' delegates to the 73rd Session (1987) of the International Labour Conference lodged a complaint, under article 26 of the Constitution of the ILO against the Government of Nicaragua, alleging infringements of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144).
4. 5. The Committee has examined these matters on several occasions, in particular in November 1988 (see 261st Report, approved by the Governing Body at its 241st Session (November 1988)) on the basis of information compiled on the spot in September-October 1988 by a study mission, and in February and May 1989 (see 264th and 267th Reports, approved by the Governing Body at its 242nd and 243rd Sessions (February-March and May 1989 respectively)).
5. 6. Since then, the International Organisation of Employers (IOE) has submitted further information in communications dated 26 June and 24 August 1989. The Government supplied information in communications dated 22 June and 20 and 26 October 1989.

A. Previous examination of the cases

1. 7. During its examination of the cases in May 1989, the Governing Body approved the following recommendations of the Committee:
   • (a) As regards the drafting of a new Labour Code, the Committee notes the Government's statement to the effect that consultations are still being held with employers' and workers' organisations, and that the ILO will be consulted in due course. Noting with concern that, according to the IOE, the COSEP was not consulted by the Government, the Committee requests the Government to hear the views of this organisation and to send rapidly an assistance request to the Office. The Committee requests the Government to provide information on the progress made in the drafting of the Code, while expressing the firm hope that all the opinions expressed by the employers' and workers' organisations will be taken into account, without exception.
   • (b) Concerning the legislation on civil liberties, the Committee notes that a new Act on communications media has been adopted. It notes with regret that the Ministry of the Interior retains the power to impose temporary suspensions on the media. The Committee requests the Government to indicate whether the decrees violating freedom of speech in economic matters, such as Decrees Nos. 512 and 888, remain in force.
   • (c) With respect to tripartite consultations, the Committee notes that a meeting concerning the agricultural sector has taken place and that such a meeting will be organised in the near future for the industrial sector. The Committee asks the Government to indicate whether the COSEP was invited to these meetings as an employers' organisation. The Committee points out that it would be beneficial to establish, as the Government had promised in February 1989, a standing tripartite consultations commission on international labour standards, composed of all workers' and employers' organisations without exception. It requests the Government to take such initiatives and to keep it informed of developments in that respect.
   • (d) As regards the detentions, the Committee notes with interest that Messrs. Alegría, Quant and several CUS trade unionists have been released. The Committee deplores that these persons have been detained for long periods and expresses the hope that they will be able to resume their activities in their respective employers' and workers' organisations without impediment. As regards Mr. Alegría, the Committee hopes that any compensation request filed by the person concerned will be examined in conformity with the requirements of Article 9.5 of the International Covenant on Civil and Political Rights.
   • (e) The Committee requests the Government to provide information on the arrest on 20 June 1988 of agricultural workers who are members of the CUS, and on the situation of Messrs. Milton Silva Gaitán and Arcadio Ortíz Espinoza.
   • (f) The Committee once more requests the World Confederation of Labour to furnish further information on the circumstances surrounding the alleged detention of Mr. Anastasio Jimenez Maldonado, Mr. Justino Rivera, Mrs. Eva Gonzáles and Mr. Eleazar Marenco.
   • (g) Finally, the Committee notes that despite the release of certain employers' and workers' leaders, many important issues raised by the present case have not yet been resolved, notably with respect to the Labour Code and tripartite consultations. In addition, the Government still has not provided information about certain detained trade unionists. In the above circumstances, the Committee strongly urges the Government to provide precise and positive information on all the above issues. This information should be provided sufficiently in advance. The Committee postpones until its November Session the question of whether it is appropriate to establish a commission of inquiry.

B. Supplementary information submitted by the complainants

1. 8. In its communication dated 26 June 1989, the IOE alleges that, following a meeting held two days earlier by the Association of Coffee Producers of Nicaragua (UNCAFENIC), affiliated to COSEP, at which the policy of the Coffee Committee, an official body, was seriously challenged, the Government decided on the immediate expropriation of the land owned by the Association's President, A. Alemán Lacayo, and by N. Bolaños Geyer and J. Cuadra Sommabira, officials of UNCAFENIC and of the Association of Coffee Producers of Magalpa, the town where the meeting was held. The officials were accused by the Government of refusing to negotiate and of encouraging anarchy, confrontation and the breakdown of negotiations. In fact, UNCAFENIC is in total disagreement with an economic policy that is being imposed on it through so-called negotiations and is making its opinion known to its members, which is the role and the right of an employers' organisation.
2. 9. In the view of the IOE, the expropriation is very much in the spirit of similar measures that have been brought to the attention of the Committee on Freedom of Association on numerous occasions, which are designed to intimidate and muzzle the leaders of COSEP and of one of its principal members, the Union of Agricultural Producers of Nicaragua (UPANIC).
3. 10. The IOE mentions another instance of arbitrary confiscation of land belonging to a COSEP leader that was ordered as a reprisal after COSEP criticised the Government's economic policy. The day after the holding of a meeting on 3 July 1988 in Estelli to prepare COSEP's General Assembly, the Government confiscated the land of the President and host of the preparatory meeting, José María Briones.
4. 11. The IOE recalls that the President of the Republic announced in a statement on 30 January 1989 that no more land would be confiscated. According to the IOE, the fact that the Government has gone back on these recent undertakings, as it has done so often in the past, should at last convince the Committee that the Government is pursuing its discriminatory policy, is endeavouring to destabilise COSEP and is accordingly continuing to attack its leaders systematically.
5. 12. In its communication dated 24 August 1989 the IOE submits a number of comments on the earlier replies - or lack of replies - from the Government. The IOE believes that the Government is attempting to pass off a number of measures it claims to have taken as a policy of consultation and negotiation with the social partners, including in the areas coming within the purview of the ILO. The Government's statements to this effect are misleading, if not downright untruths: either the measures were never taken by the Government or never involved COSEP or its members as such, or else they were taken in very different circumstances from those suggested by the Government. The IOE cites a number of examples.
6. 13. According to the IOE, for instance, the national tripartite consultations in the agricultural sector that are presented as tangible evidence of negotiation involved neither COSEP nor UPANIC, a member of COSEP, as such, but were held with people hand-picked by the Government from among the members of COSEP and UPANIC. Neither COSEP nor UPANIC, as such, were able to have their views represented.
7. 14. The IOE goes on to state that, when these organisations got together as best they could to discuss how to put across their points of view, which happened to disagree with the Government's economic policy, they were accused of economic sabotage, their leaders had their land expropriated and at the same time those who indicated their intention to withdraw from consultations in these circumstances were threatened with expropriation by the Minister for Agrarian Reform and by the President of the Republic himself. Thus the so-called consultations were turned into "compulsory meetings" conducted under the threat of sanctions.
8. 15. The Government has tried to show Mr. Gurdian, Vice-President of COSEP and President of UPANIC, as being in favour of the kind of consultations described above. However, Mr. Gurdian's opinion is perhaps better expressed by himself and by UPANIC: in a statement to La Prensa Mr. Gurdian said: "These are not consultations at all but a form of blackmail that has frightened those who have been convened by the Government".
9. 16. The IOE adds that it was the ILO, not the Government, that organised - and prepared with the Minister of Labour well in advance - the consultations that were held on 8 to 10 May 1989 on the revision of Convention No. 107. At the request of the ILO, the Government sent a letter of invitation dated Tuesday, 2 May, that was delivered directly to COSEP on Friday, 5 May, at 4.30 p.m., leaving it barely 24 hours to find an expert by Monday, 8 May, to take part in the discussion of a highly specialised and controversial issue, which, as it turned out, it was unable to do.
10. 17. The national tripartite consultation for the industrial sector announced by the Government for May never took place and was apparently replaced by the creation of an Advisory Committee for Industry on which members of the Chamber of Industry were invited by the Government to sit in an individual capacity.
11. 18. According to the IOE, the meetings for the industrial sector and those for the agricultural sector were devoted essentially to the desperate economic situation of the country and of enterprises in general. The issues still pending between the ILO and Nicaragua, such as enjoyment of freedom of association, freedom of assembly and freedom to negotiate, were never raised. The meetings are only tripartite in name, since none of the trade unions which rival the official trade unions - the Sandinista Confederation of Workers (CST) and the Association of Rural Workers (ATC) - are invited and, as the discussions revolve essentially around economic issues, even the participation of the two official federations is purely symbolic, their presence being announced but virtually ignored.
12. 19. Regarding the reform of labour legislation and specifically the discussion and approval of the new Labour Code, the Government claims for the second time that consultations have begun and are continuing to advance with COSEP, pointing by way of proof to the holding of several seminars on the subject in April 1989. On this point, the IOE states that there were exactly three meetings between January and May that COSEP was invited by the Government to attend:
    • - one ostensibly tripartite meeting on labour inspection to which COSEP was invited ten minutes before the meeting started without being told what aspect of labour inspection was being discussed. At such short notice, COSEP was not able to attend or to put the employers' point of view;
    • - a tripartite meeting on vocational training and employment creation, organised by the ILO and not by the Government;
    • - a meeting, likewise organised by the ILO in Nicaragua (and in a whole series of other countries) and not by the Government, in connection with the second discussion of the revision of Convention No. 107 at the 76th Session of the International Labour Conference. Again, the notice it received was too short for COSEP to be represented.
      • In all three cases the amendment of the labour legislation and the drafting of a new Labour Code was neither discussed nor on the agenda. COSEP therefore asserts once again that it was never consulted either by the National Assembly or by the Minister of Labour on the reform or amendment of labour legislation or the approval of a new Labour Code.
    • 20. The IOE notes that the Government has ignored the Committee's insistence, based largely on the observations of the 1988 study mission, that legislation on judicial safeguards be adopted as soon as possible and has not supplied the information that was requested on the subject. It also observes that the Government has not responded to the hope expressed on several occasions by the Committee that it will compensate those who have been unfairly dispossessed of their land. The IOE cites an instance of pure and simple refusal to compensate one of the leaders of COSEP who was recently dispossessed, as well as the Government's refusal to hand over several farms whose confiscation was annulled by the Supreme Court. Other requests for compensation for the confiscation of land are still pending - and it cites the cases of Mr. Aleman, Mr. Bolaños and Mr. Cuadra. The IOE also considers that the Government has not supplied the information that was requested on the scope of the amnesty declared in February 1988. In point of fact, the Government merely issued pardons, which are a considerably less lenient type of measure. The IOE wishes to know whether the proceedings instituted against employer and worker leaders who were summarily sentenced and then released are still before the courts and, if not, whether a pardon extinguishes the court proceedings and means that the sentence handed down by the lower court remains on the record.
13. 21. The IOE goes on to state that the Government is incapable of producing any convocation or agenda that it might have sent to COSEP or even the minutes of any meeting that COSEP might have attended, specifically with respect to the past or future discussion of the many important reforms which the Government promised the study mission would be made to the country's labour legislation and which the Committee on Freedom of Association or the Committee of Experts have been calling for each year for many years. The IOE challenges the Government to produce proof of its assertion that COSEP was consulted by the committee set up by the National Assembly to draft the new Labour Code. The IOE also maintains that the tripartite round table which the Government had promised in August-September 1988 would be held very shortly has never been convened.
14. 22. In conclusion, the IOE considers that there have been so many shortcomings and inaccurate statements that only an impartial commission of inquiry could establish what the real situation is and whether or not the allegations of the complainants and the Government's replies are true.

C. The Government's reply

1. 23. In a communication dated 22 June 1989, the Government calls for technical and economic assistance in holding tripartite seminars and other similar forms of consultation in order to achieve its objective of reforming the Labour Code. According to the Government, this request is undeniable proof of the authorities' spirit of co-operation and firm intention to respond to the Committee's comments.
2. 24. In its letter of 20 October 1989, the Government states that in accordance with the agreements signed between the President of the Republic and representatives of the legally constituted political parties, the National Assembly has had a very heavy agenda. It approved a Decree pardoning 457 persons who had been found guilty and were imprisoned for infringing the Act respecting the maintenance of public order and safety; it amended the Act respecting the media by entrusting the Supreme Electoral Council with the enforcement of this legislation and of the regulations issued thereunder in respect of problems connected with electoral law. The Assembly also approved amendments to the Act in respect of the judicial powers of the Sandinista police whereby all such judicial functions (trials and sentencing) are suspended, the police now being competent only in respect of investigations into and penalties in respect of offences committed by its own members. The Act is now referred to as the Sandinista Police Functions Act. The Assembly also unanimously approved an Act to amend Decree No. 1074 (Act respecting the maintenance of public order and safety). According to this new Act, all the provisions in the Penal Code concerning rebellion, sedition and treason, which were covered by Decree No. 1074, remain in force in the Penal Code. All offences stipulated in the Decree will therefore be punishable under the Penal Code. Lastly, the Assembly is giving priority consideration to an Act in respect of non-military national service presented by the Democratic Conservative Party.
3. 25. Because of its heavy schedule, as well as by the agreements reached in Tela (Honduras) by the Central American Heads of State, the plenary of the National Assembly has not yet been able to study the reforms to the labour legislation. Nevertheless, it is still the Government's intention to amend this legislation to bring it into line with ILO Conventions.
4. 26. The Government recalls that in accordance with the Costa del Sol (El Salvador) agreement of 14 February 1989, it undertook to organise elections for the Presidency, the National Assembly and the Central American Parliament before 25 February 1990 and to invite international observers, in particular from the United Nations (UNO) and the Organisation of American States (OAS), to see that the elections are held freely. The electoral process has now entered its second stage with the massive arrival of international observers including, for short periods, the Secretary-General of the OAS. A number of candidatures have been put forward for the Presidency. The Government states in this respect that Mr. Bolaños Gayer, honourary chairman of COSEP, wished to stand as the candidate for the National Union of the Opposition but was defeated. On that occasion, the COSEP made public appeals to vote. At the moment, the electoral lists are being drawn up.
5. 27. Following the Tela agreement of 7 August 1989, signed by the Central American Heads of State, a joint plan was drawn up for the demobilisation, repatriation or voluntary settlement in Nicaragua and other countries of members of the Nicaraguan resistance and their families. To implement the plan, the International Support and Verification Commission (CIAV) was set up and the general secretaries of the UNO and the OAS were invited to participate. The Government and the CIAV are in direct contact with the resistance movement in order to promote the repatriation or resettlement of its members and their integration in the political process. Former resistance leaders have submitted their candidature for the coming parliamentary elections and one of them for the Presidency.
6. 28. According to the Government, all this shows the intense activity being carried out in Nicaragua for the benefit of all citizens without distinction. These activities will lead to the restoration, once and for all, of peace and the stabilisation of the economy. The new Government will then be able to embark on plans to raise the standard of living.
7. 29. For the Government, the measures thus adopted also meet a number of concerns expressed by the Committee. Thus the rescinding of the Act respecting the maintenance of public order and safety and the amendments to the Act respecting the judicial powers of the Sandinista police respond to the recommendation concerning the early adoption of legislation fully guaranteeing the exercise of public freedom and judicial safeguards. The same applies to the amnesty measures adopted by the National Assembly.
8. 30. According to the Government, in view of all these factors and since, because of the forthcoming elections, there are already international observers in the country from governmental, non-governmental and humanitarian organisations, the Government considers that this is not the time to send a commission of inquiry, which might be used politically, thus diverting it from its real purpose. Moreover, because there is full freedom of association, of expression and of movement, the Government does not consider it necessary to set up a commission of inquiry which would reach conclusions that are obvious and internationally known. Besides, this would involve the Organisation in unnecessary expense.
9. 31. In its communication of 26 October 1989, the Government transmits the text of a resolution adopted on 13 October 1989 by the European Parliament on the Tela meeting of Central American Heads of State and the Nicaraguan elections. In this resolution, the European Parliament expresses its satisfaction that the electoral process has been set in motion in Nicaragua and hopes that the 25 February 1990 elections will offer to all political parties every guarantee of freedom, honesty and equal access to information media.

D. The Committee's conclusions

1. 32. The Committee has carefully examined the developments which have taken place in this matter since its meeting in May 1989. However, it has not been able to take account of communications from the Government dated 30 October and 2 November 1989, nor of a communication from the IOE dated 3 November 1989 which arrived too late to allow a thorough examination of them.
2. 33. The Committee notes that the Government's communications of 22 June and 20 October 1989 show that the Government has taken some positive measures along the lines of the recommendations previously made by the Committee, in particular the organisation of a tripartite seminar under the auspices of the ILO and the adoption of an amnesty decree in favour of persons sentenced for infringing the Act on the maintenance of public order and safety.
3. 34. Nevertheless, the Committee must observe that the Government has not supplied replies to some of the questions put by the Committee at its previous meeting, in particular in relation to the establishment of a standing committee on tripartite consultations concerning international labour standards and in relation to certain decrees violating freedom of economic information. In addition, the Government has not replied to the allegations made by the IOE in June and August 1989 concerning the confiscation of land belonging to employers' leaders and the refusal to pay compensation and to restore farms to their owners. It also appears that, for a number of points at issue, contradictions still remain between the statements made by the complainants and by the Government, particularly regarding consultations on the preparation of the new Labour Code.

The Committee's recommendations

1. 35. In the light of its foregoing conclusions, the Committee recommends to the Governing Body that it transmit this affair as a whole to a commission of inquiry for examination, in conformity with article 26, paragraph 3, of the Constitution of the ILO. In making this recommendation, the Committee in no way is prejudging the situation in Nicaragua and even less is attributing blame to or expressing condemnation of the Government. On the contrary, it is convinced that the establishment of this commission will enable, in collaboration with the authorities and the social partners, a positive contribution to be made to solving the issues facing this country in the field of labour and industrial relations, issues which the Government has, on several occasions, stated that it wishes to resolve.