Rapport intérimaire - Rapport No. 356, Mars 2010

Cas no 2450 (Djibouti) - Date de la plainte: 04-AOÛT -05 - Clos

Allegations: The complainant organizations allege that the Government refuses to take the necessary measures to reinstate union members dismissed in 1995 following a strike in protest against the consequences of a structural adjustment programme, despite having made a commitment in 2002 to reinstate them; continues to dismiss union officials unfairly and to harass them; and has adopted a new Labour Code spelling the end of free and independent trade unionism. Their allegations also relate to the violent suppression of a strike and the barring from entry of an international trade union solidarity mission

1. 667. The Committee last examined this case at its November 2008 session [see 351st Report, paras 775–798]. The Djibouti Union of Workers (UDT) and the General Union of Djibouti Workers (UGTD) jointly sent additional information in a communication dated 4 March 2009.
2. 668. As the Government did not respond to the latest information supplied by the complainant organizations, the Committee was twice obliged to postpone its examination of the case. At its meeting in November 2009 [see 355th Report, para. 9], the Committee launched an urgent appeal to the Government, indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it could present a report on the substance of the case at its next session, even if the requested observations or information had not been received in due time. To date, the Government has not sent any information.
3. 669. Djibouti 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. Previous examination of the case

1. 670. During its previous examination of the case in November 2008, the Committee made the following recommendations [see 351st Report, para. 798]:
   • (a) With regard to the reinstatement of workers dismissed in 1995, following a strike, who have not yet been reinstated, the Committee expects that the Government will provide in the very near future the necessary clarifications on the situation of the workers mentioned in its previous recommendations as well as those whose names appear on the list provided by the complainant organizations, in accordance with the commitment it made before the direct contacts mission.
   • (b) The Committee expects that the Government will act promptly in following up on the commitments made before the direct contacts mission concerning the reinstatement of workers dismissed in 1995 who have not yet been reinstated, the payment of compensation to these workers and arrears payments. The Committee requests the Government to inform it without delay of the situation of the negotiations and of the progress made.
   • (c) The Committee expects that the Government will take all the necessary measures to adopt without delay the requested amendments to the Labour Code, as discussed with the direct contacts mission, specifically with regard to sections 41, 42, 214 and 215 of the Code, in order to give full effect to the international Conventions that it has ratified on freedom of association.
   • (d) Noting that the draft legislative amendments will be submitted to the National Council of Labour, Employment and Vocational Training for consideration, the Committee urges the Government to inform it as soon as possible about the establishment and composition of this body.
   • (e) The Committee urges the Government to provide without delay information on the current situation of Mr Hassan Cher Hared, including the results of any inquiry concerning his 2006 dismissal and the follow-up taken.
   • (f) The Committee urges the Government to indicate the measures taken to guarantee the implementation of objective and transparent criteria for the nomination of Workers’ representatives at the International Labour Conference.
   • (g) In general terms, the Committee urges the Government to give priority to promoting and safeguarding freedom of association and act promptly following up on the specific commitments that it made before the direct contacts mission to resolve all the pending issues and therefore facilitate a transparent and sustainable social dialogue in Djibouti. Recalling that some of the events and disputes in this case date back to 1995, the Committee expects that the Government will inform it without delay of any progress made in this regard.
   • (h) The Committee calls the Governing Body’s attention to this serious and urgent case.

B. New allegations

1. 671. In a communication dated 4 March 2009, the UDT and the UGTD report the Government’s refusal to engage in dialogue and its repeated withdrawals despite the numerous mediation missions by international organizations, including the International Labour Office, which have been visiting Djibouti for many years. The complainant organizations indicate that the latest about-turn by the Government dates back to the follow-up to the ILO’s direct contacts mission of January 2008 which, following consultation with all parties, achieved a comprehensive agreement which included Government commitments made by the Prime Minister with a view to settling the disputes. According to the complainant organizations, the Government not only quickly reneged on all the commitments made, but also orchestrated a destabilization of the UDT involving trade unionists who had already participated in an initial attempt at taking over the trade union in 1999 and who attended the International Labour Conference as representatives of the UDT in the place of its legitimate leaders as part of the Djibouti delegation.
2. 672. The complainant organizations report that the Government continues to openly scorn trade union rights, violate international labour Conventions on freedom of association, systematically punish trade union activists and leaders and remain indifferent to the ILO’s recommendations made to the Government each year. The complainant organizations point out that other international bodies have also issued resolutions condemning the Government’s attitude.
3. 673. The organizations reiterate their willingness to resolve the issues pending and strongly urge the implementation in good faith of the commitments made following the direct contacts mission of January 2008, as well as the revision of the Labour Code of 2006.

C. The Committee’s conclusions

1. 674. The Committee deeply regrets that the Government has not provided information in response to the previous recommendations of the Committee and to the new allegations of the complainant organizations, even though it has been invited on several occasions, including by means of an urgent appeal, to submit its comments and observations on the follow-up to this case. The Committee urges the Government to be more cooperative in the future.
2. 675. Under these circumstances, in accordance with the applicable rule of procedure [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee is bound to submit a report on the substance of the case without the information it hoped to receive from the Government.
3. 676. The Committee recalls that, in its previous examination of the case, it noted the information provided in the report of the direct contacts mission of January 2008 and in particular the spirit of cooperation shown by the Government towards the accomplishment of that mission. The Committee notes with concern that the complainant organizations indicate that the Government quickly reneged on all the commitments made during the mission. The Committee regrets that the Government has not continued to show the same open-mindedness noted by the mission.
4. 677. With regard to its previous recommendation on the reinstatement of workers who had not yet been reinstated following their dismissal in 1995, the Committee recalls that the list of workers covered by an agreement of 8 July 2002 was subject to differences of opinion between the Government and the complainant organizations but that the Government had made a commitment before the direct contacts mission to carry out the necessary checks into the situation of the workers on the basis of the list provided by the mission and to inform the Office accordingly. The Committee notes with regret that no information has since been provided in this regard and urges the Government to take all the necessary steps, in accordance with the commitment that it made, to carry out such checks and provide clarification on the situation of both the workers referred to in the Committee’s previous recommendations and those mentioned by the complainant organizations [see 351st Report, para. 787].
5. 678. Furthermore, the Committee recalls that, according to the complainant organizations, under the agreement of 8 July 2002 signed through the mediation of an ILO mission, workers who wished to be reinstated had to make an individual request to that effect and that those who did not wish to be reinstated had to be compensated. However, according to the different high-level authorities interviewed by the direct contacts mission, including the Prime Minister, the issue of the 1995 dismissals was settled through a mass reinstatement process in all but a few isolated cases. This reinstatement of dismissed workers was said to be the result of political goodwill and the Government had indicated that it was ready to rectify the situation of the few cases still pending. The Government made a commitment to reinstate all the dismissed workers in their original posts or, if such reinstatement was impossible, to find them other work, and to pay the retirement contributions for these individuals. With regard to the payment of compensation, the Government indicated that it was not opposed to the principle, if the workers agreed to be reinstated in their jobs. The departments of the Ministry of Employment and National Solidarity had been given the task of conducting and concluding negotiations on the issue of reinstatement, compensation and the payment of social security contributions. The Committee notes with deep regret that, according to the complainant organizations, no progress has been made on the issue of reinstatement and compensation. The Committee once again requests the Government to make every effort to follow-up on the commitments made before the direct contacts mission concerning the reinstatement of workers dismissed in 1995 who have not yet been reinstated, the payment of compensation to these workers and arrears payments. The Committee urges the Government to keep it informed of the situation with regard to the negotiations and the progress made.
6. 679. With regard to the allegations of systematic repression of trade union leaders and activists, the Committee firmly recalls once again that a free trade union movement can develop only under a regime which guarantees fundamental rights, including the right of trade unionists to hold meetings in trade union premises, freedom of opinion expressed through speech and the press and the right of detained trade unionists to enjoy the guarantees of normal judicial procedure at the earliest possible moment [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 37]. In this regard, the Committee recalls that its previous recommendations concerned, in particular, the situation of the trade unionist Mr Hassan Cher Hared who was allegedly dismissed in September 2006. The Committee urged the Government to provide, without delay, information on the current situation of Mr Hassan Cher Hared, including the results of any inquiry concerning his dismissal. The Committee notes with regret that no information has been provided by the Government on this matter and is bound to urge it once again to inform it of the current situation of the trade unionist Mr Hassan Cher Hared and the results of any inquiry concerning his dismissal in 2006.
7. 680. The Committee notes with concern the allegations made by the complainant organizations concerning the Government’s interference in the UDT’s affairs and, in particular, the nomination of representatives in the place of the legitimate leaders in the delegation of Djibouti at the International Labour Conference in June 2008. The Committee recalls that respect for the principles of freedom of association requires that the public authorities exercise great restraint in relation to intervention in the internal affairs of trade unions. The Committee further recalls that it previously noted that one of the outstanding issues raised by the direct contacts mission concerned the representation of Djibouti workers at the International Labour Conference but that this issue had been the subject of objections and discussions in the Credentials Committee of the Conference for several years. The Committee also recalls that it noted that the appointment of the Djibouti Workers’ delegation had once again been the subject of an objection lodged by the UDT and the UGTD at the 97th Session (June 2008) of the International Labour Conference based on the fact that the Government had failed to honour its commitments by continuing to appoint at the Conference individuals who did not represent the unions. The Committee noted that in its conclusions the Credentials Committee indicated that it been given contradictory information about the capacity of the members of the UDT, but that, according to the information available to it, the representative of the UDT to the Conference had not been chosen independently and without interference by the Government. It therefore urged the Government to guarantee the implementation of a procedure based on objective and transparent criteria for the nomination of the Workers’ representatives in future sessions of the Conference. It trusted that the nomination could be finally made in the spirit of cooperation between all the parties concerned, in a climate of confidence that fully respected the ability of the workers’ organizations to act in total independence from the Government [see Provisional Record No. 4A, paras 25–37].
8. 681. The Committee notes with concern that the Djibouti Workers’ delegation was once again the subject of an objection lodged with the Credentials Committee at the 98th Session (June 2009) of the International Labour Conference. The Committee notes that, in its conclusions, the Credentials Committee regrets the clear lack of progress made on this matter since 1997 and notes that it does not have before it any new information providing answers to the questions raised in 2008. The Credentials Committee continues to have serious doubts as to the independent nature of the nominated representative of the UDT to the Conference and concludes that the nomination of the representative of the UDT to future sessions of the Conference should be carried out in consultation with the UDT as presently led by Mr Mohamed Abdou as Secretary-General. The Committee notes that the nomination of the representative of the UGTD at the same session of the Conference was also questioned by the Credentials Committee which concludes that the Government has not fulfilled its obligations as set out in article 3 of the ILO Constitution because it has not nominated Workers’ delegates representing the workers of Djibouti in agreement with the most representative workers’ organizations. The Committee expresses its deep concern with regard to this situation which highlights not only the seriousness of the situation relating to the trade union climate in Djibouti, but also the clear lack of willingness on the part of the Government to improve the situation (see Provisional Record No. 4C,
   • paras 43–56). The Committee once again urges the Government to indicate the steps taken to guarantee the implementation of objective and transparent criteria for the nomination of Workers’ representatives at the International Labour Conference.
9. 682. With regard to the allegations relating to the revision of the 2006 Labour Code, which the complainant organizations describe as “antisocial”, the Committee requested the Government in its previous recommendations to amend sections 41, 42, 214 and 215 of the Labour Code. In its last examination of the case, the Committee noted with interest that the Government had made a commitment to make the requested amendments and to that end it wished to receive technical assistance and advice from the Office. The Committee notes with regret that no information has since been provided by the Government on the progress made in adopting the requested amendments. The Committee therefore once again urges the Government to keep it informed of any steps taken to adopt without delay the amendments requested to the Labour Code which have been the subject of comments by the ILO’s supervisory bodies for many years. The Committee reminds the Government that it may avail itself of the technical assistance of the Office.
10. 683. The Committee further recalls that its previous recommendations also concerned the National Council of Labour, Employment and Vocational Training (CNTEFP) to which any draft amendments to the Labour Code would be submitted. In this regard, the Committee recalls that the direct contacts mission cautioned against excessive delay in the establishment of this body and the consequent impact that such a delay would have on the adoption of the necessary legislative amendments and, in particular, against any decision, especially in relation to the composition of the CNTEFP, which could be a source of further tension. The Committee once again urges the Government to provide information without delay on the establishment and composition of this body.
11. 684. In general, the Committee notes with deep concern the obvious unwillingness on the part of the Government to improve the situation and resolve the issues pending in this case. The Committee draws the Government’s attention to its responsibility, as a member of the ILO, to respect the principles of freedom of association as set forth in the ILO Constitution. Furthermore, considering the history of this case, some events of which date back to 1995, the Committee emphasizes the importance for the Government to provide concrete replies to the long-standing recommendations of the Committee; it is a question of the effectiveness of its special procedure. The Committee therefore once again urges the Government to give priority to promoting and safeguarding freedom of association and to urgently implement the specific commitments that it made before the direct contacts mission to resolve all issues and therefore facilitate a transparent and sustainable social dialogue in Djibouti. The Committee expresses in the strongest of terms its expectations that the Government will take concrete measures without delay in this regard.

The Committee's recommendations

1. 685. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With regard to the list of workers dismissed in 1995 and not yet reinstated, the Committee urges the Government to take all the necessary steps, in accordance with the commitment it made before the direct contacts mission, to carry out checks and provide clarifications on the situation of the workers mentioned both in the Committee’s previous recommendations and by the complainant organizations.
   • (b) The Committee once again requests the Government to make every effort to follow-up on the commitments made before the direct contacts mission concerning the reinstatement of the workers dismissed in 1995 who have not yet been reinstated, the payment of compensation to these workers and arrears payments. The Committee urges the Government to keep it informed of the situation of the negotiations and of the progress made.
   • (c) The Committee is bound to urge the Government once again to inform it of the current situation of the trade unionist Mr Hassan Cher Hared and of the results of any inquiry concerning his dismissal in 2006.
   • (d) The Committee once again urges the Government to indicate the steps taken to guarantee the implementation of objective and transparent criteria for the nomination of Workers’ representatives at the International Labour Conference.
   • (e) The Committee once again urges the Government to keep it informed of any steps taken to adopt, without delay, the amendments requested to the Labour Code which have been the subject of comments by the ILO’s supervisory bodies for many years.
   • (f) The Committee once again urges the Government to provide information, without delay, on the establishment and composition of the CNTEFP.
   • (g) In general, the Committee notes with deep concern the obvious unwillingness on the part of the Government to improve the situation and resolve the pending issues in this case. The Committee once again urges the Government to give priority to promoting and safeguarding freedom of association and to urgently implement the specific commitments that it made before the direct contacts mission to resolve all issues and therefore facilitate a transparent and sustainable social dialogue in Djibouti. The Committee expresses in the strongest of terms its expectations that the Government will take concrete measures without delay in this regard.
   • (h) The Committee reminds the Government that it may avail itself of the technical assistance of the Office.
   • (l) The Committee calls the Governing Body’s attention to the extreme seriousness and urgent nature of this case.