Rapport intérimaire - Rapport No. 392, Octobre 2020

Cas no 3339 (Zimbabwe) - Date de la plainte: 16-OCT. -18 - En suivi

Allegations: The complainant alleges restrictions on the right to demonstrate, deaths, arrests, criminal prosecution of trade union leaders and charges for participating in protest actions, as well as intimidation of trade union leaders and members

1. 968. The complaint is contained in communications dated 16 October 2018 and 2 April 2019 from the Zimbabwe Congress of Trade Unions (ZCTU).
2. 969. The Government provided its observations in communications dated 22 March and 9 September 2019.
3. 970. Zimbabwe has ratified 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 Workers’ Representatives Convention, 1971 (No. 135).

A. The complainant’s allegations

1. 971. In its communication dated 16 October 2018, the ZCTU explains that its allegations relate to the events of 11 October 2018, when, according to the complainant, the Government blocked, arrested, brutalized, intimidated, harassed and imprisoned workers who intended to engage in a protest action against increased taxation of two per cent per dollar and the rising cost of living.
2. 972. The ZCTU explains that the new economic policy entitled “Fiscal Measures for Reversing Fiscal Disequilibrium” was presented on 1 October 2018. The new policy increased a tax called “intermediate money transfer tax” from five cents per transaction to two cents per each dollar transacted. According to the ZCTU, the increase eroded the income of workers whose salaries have remained stagnant against the rising cost of living and disappearance of basic commodities.
3. 973. On 4 October 2018, the ZCTU resolved to engage in a protest action against the imposed tax increase. The ZCTU notified the Zimbabwe Republic Police (ZRP) of the protest actions to be held on 11 October 2018 in six regional ZCTU centres. According to the complainant, on 8, 9 and 10 October 2018, the ZRP in respective areas replied banning the protest action on the grounds that there was a cholera outbreak in those areas and that some of the issues raised by the ZCTU were not labour matters, hence it needed to comply with section 25(a) of the Public Order and Security Act (POSA) that requires the giving of an adequate notice for a public gathering. On 10 October 2018, the ZCTU, through the Zimbabwe Lawyers for Human Rights (ZLHR), made an application to the Magistrates Court in Harare in order to have the police ban lifted. The Court hearing was scheduled for 11 October 2018 at 11:30 a.m., i.e. on the date of the protest action.
4. 974. On 11 October 2018, the ZCTU members came to its offices in their respective regions to discuss the way forward in view of the upcoming court proceedings. As the workers arrived at the ZCTU offices, and before the court heard the matter, the police had already cordoned off all the ZCTU offices branding live ammunitions, batons and trucks with water cannons. In Harare, at 8 a.m. several police officers were camped at the ZCTU offices and at 9 a.m. more than 150 police officers in trucks, lorries and pickup vans arrived, jumped out of their vehicles and manhandled the ZCTU President and Secretary General Mr Peter Mutasa and Mr Japhet Moyo. They were thrown in the vehicles while being beaten with batons. They were arrested with five other trade union activists and detained at the Harare central police station. They were charged with “participating in a gathering with intent to promote public violence, breaches of the peace or bigotry” as defined by section 37(1)(a) of the Criminal Law (Codification and Reform) Act. They appeared at the criminal court on 12 October 2018; the hearing was delayed by the state to the afternoon and then postponed to 13 October 2018, making them spend two days in jail. On 13 October 2018, the court granted them bail of US$50 each and set them to appear in court again on 30 October 2018.
5. 975. The complainant alleges that after the arrest of the ZCTU leaders, 26 workers were held hostage by the police at the ZCTU offices in Harare. More than 50 police officers camped inside the entrance and stairs up to the third floor while workers were trapped inside from 9 a.m. to 7 p.m. with no access to food or toilets. They were released after an application to the High Court by the ZLHR to secure their release.
6. 976. In Mutare, 20 workers who had gathered at the union offices were arrested and detained at the Mutare central police station. They were also charged with participating in a gathering with intent to promote public violence, breaches of the peace or bigotry as defined by section 37(1)(a) of the Criminal Law Act. They appeared in court on 12 October 2018, were released on US$50 bail and were set to appear in court again on 26 October 2018.
7. 977. In Masvingo, 12 workers were arrested while demonstrating and were detained at Masvingo central police station facing similar charges. They were released in the evening and the police warned that they would follow them through summons.
8. 978. In Gweru, the demonstration went ahead despite the police ban. Four workers were arrested: Mr Moses Gwaunza was arrested at his house around 11 p.m., Ms Chikozho and Mr Bernard Sibanda were arrested in the morning of 12 October 2018 and the Chairperson Mr Kudakwashe Munengiwa was arrested on 17 October 2018. They are facing similar charges to the above-mentioned. As the prosecutors declined to prosecute due to lack of evidence, trade union leaders were released, but the police promised to follow through summons.
9. 979. In Bulawayo and Chinhoyi there were no arrests but armed police blocked workers from gathering.
10. 980. A total of 43 people were arrested and 26 detained during the events of 11 October 2018.
11. 981. The complainant alleges that the cholera outbreak issue was selectively used to ban the demonstration, in violation of trade union rights. It indicates that on 10 October 2018, the police allowed a graduation ceremony at the University of Zimbabwe (Harare), officiated by President Emmerson D. Mnangagwa, which brought together people from all over the country. Moreover, public gatherings were held in Harare during the same week and included soccer matches, church gatherings, and petrol and supermarkets queues in the city centre. Furthermore, on 16 October 2018, a match between the Zimbabwe Warriors and the Democratic Republic of the Congo. In other cities, the outbreak was limited to isolated incidents. The complainant points out that it is exempted from giving notice to the police in terms of the POSA schedule of exempted organizations and that the police insistence on the lack of compliance is either out of ignorance of the law or a deliberate tactic calculated to block the protest.
12. 982. The ZCTU also submits that the Government violated the national Constitution enshrining the freedom of assembly and the right to demonstrate in its articles 58 and 59 and Article 3 of Convention No. 87. The ZCTU points out that the Government has not implemented the reforms recommended by the 2009 Commission of Inquiry, which found “violations to be both systematic and systemic” and saw “a clear pattern of arrests, detentions, violence, and torture by the security forces against trade unionists that coincide with ZCTU nationwide events, indicating that there has been some centralized direction to the security forces to take such action”. The Commission also concluded that “there was another clear pattern of control over ZCTU trade union gatherings, be they internal meetings or public demonstrations, through the application of the POSA” and that “detentions and targeted violence used to intimidate both leaders and rank and file members of the trade union in a systematic and systemic manner”.
13. 983. By its communication dated 2 April 2019, the ZCTU submits allegations in relation to the incidents of 14–16 January 2019. It alleges, in particular, that the Government killed, obstructed, harassed, intimidated, assaulted, arrested and detained several protestors (including its Secretary General and President), following a peaceful protest against the rising cost of living.
14. 984. The ZCTU explains that on 11 January 2019, following a unilateral price increase that did not match workers’ incomes, the ZCTU demanded the introduction of measures to curtail the price hike, the annulment of the “two cents per dollar” tax introduced in October 2018 and that workers be paid in US dollars. It also notified the Government of its intention to embark on a protest action in the event that it failed to address the concerns of its members within seven days. On 12 January 2019, the Government, without responding to the ZCTU demands, increased the price of fuel from US$1.34 per litre to US$3.33 (a 150 per cent increase) – which had an immediate effect of increasing the cost of transport for workers as well as the cost of other basic commodities. On 13 January 2013, the ZCTU President Mr Mutasa called for a three-day protest action (job stay away) in a video clip that went viral on social media platforms.
15. 985. The ZCTU indicates that on 14–16 January 2019, workers and the general population heeded the call and the country was shut down. Some groups of people, not organized by the ZCTU, engaged in public demonstrations in the streets, barricading roads in most cities and towns. According to the complainant, the Government responded by cracking down on demonstrators through its police and military, using live ammunitions. As a result of the crackdown, the demonstrators engaged in running battles with the police and the army and retaliated by looting goods from supermarkets and shops. In addition to the crackdown, the Government disconnected internet and social media services from 14 to 18 January 2019. They were restored by a High Court order secured by the ZLHR and the Media Institute of Southern Africa (MISA-Zimbabwe). The ZCTU alleges that during the disconnection of internet services, the army and the police intensified their brutality by following people into their homes and brutalized them and arrested them.
16. 986. The ZCTU indicates that according to the Zimbabwe Human Rights NGO Forum (ZHRNF), the events resulted in the death of 17 people, 16 rapes, and 81 gunshot assaults. According to the ZCTU, the Zimbabwe Human Rights Commission (ZHRC), a constitutional body, observed that uniformed members of the Zimbabwe National Army and the ZRP instigated systematic torture of civilians by visiting their homes at night, and condemned the use of live ammunition against civilians. The ZCTU alleges that the Government dismissed the report as biased, although confirmed the deaths of 12 people, but has not set up any independent investigation into the atrocities and has remained silent.
17. 987. On 21 January 2019, the ZCTU Secretary General, Mr Moyo, was arrested at the Harare international airport on his way back home from China. He was not in the country during the demonstration period but was still detained by the police until 6 p.m. and his cell phone was confiscated. He was arrested again at his house at 11 p.m. and detained at Harare central police station. Mr Moyo appeared in the Magistrate’s Court and was to remain in custody at Chikurubi maximum security prison until 8 February 2019. His lawyers applied for bail to the High Court and the hearing was originally set for 28 January 2019 then postposed to 29, 30, 31 and 1 February 2019 at the initiative of state prosecutors.
18. 988. Meanwhile, the ZCTU President Mr Mutasa was forced into hiding after unidentified persons attacked his home and attempted to abduct him. He handed himself over to the police on 26 January 2019, after reading several press reports stating that he was a fugitive. He was then detained at the Harare central police station. He appeared in the Magistrate’s Court and remained in custody in Harare Remand Prison. His bail application was heard together with Mr Moyo’s. Both are facing charges of subverting a constitutional government, or alternately, inciting public violence, an offence, if convicted, warranting a prison sentence of up to 20 years (without the option of a fine). Mr Moyo is accused of having organized undisclosed meetings, while Mr Mutasa’s criminal conduct arises from the call for a protest action.
19. 989. On 1 February 2019, the High Court granted them bail of US$2,000 each, coupled with daily reporting conditions for Mr Moyo and twice a week for Mr Mutasa. Mr Mutasa was also ordered to surrender his home’s title deeds to secure his freedom. These conditions were modified by the High Court on 7 March 2019; Mr Moyo is now required to report twice a week while Mr Mutasa needs to report once per fortnight.
20. 990. The conditions imposed curtailed their freedom of movement as well as the activities of the ZCTU as the two leaders could not travel outside Harare to attend international conferences and activities. The ZCTU indicates that while it delegated its legal advisor to attend the Southern African Development Community (SADC) and African Union tripartite meetings, the Government did not avail the necessary resources on time (for the SADC meeting, resources were granted after the start of the meeting, the delegate was only able to join on the third day, and for the African Union meeting the resources were not granted at all making it impossible for him to attend).
21. 991. As of the date of the ZCTU communication, both trade union leaders have appeared in court more than 11 times without trial which was postponed to 25 April 2019 as the state prosecutors were not yet ready for trial. An application for discharge was dismissed by the Magistrate’s Court.
22. 992. According to the ZCTU, during the period of 14–29 January, a total of 1,055 people were arrested, including 12 juveniles. They were brought to court en masse and their cases fast tracked without affording the accused persons enough time to prepare their defence. Furthermore, 995 of the arrested persons brought to court were denied bail, prompting some lawyers to engage in a demonstration on 29 January 2019 demanding justice and independence of the judiciary.
23. 993. According to the complainant, it is the Government’s view that the crackdown was justified because the protesters engaged in violence that resulted in looting and torching of properties. While the ZCTU condemns violence, it considers that the blame also lies with the security forces that attacked protesters and used disproportional force. Moreover, the looting of groceries exposes how desperate the populace has become as a result of the exorbitant price increase sanctioned by the Government. The complainant also alleges that some of the looters and arsonists convicted by the courts belonged to the ruling party ZANU PF’s youth wing whose whole intention was to tarnish the ZCTU image. The ZCTU also alleges that while the State rushed to consider measures to compensate the business people, no such compensation has been provided to the victims shot and to the families of those killed.
24. 994. The complainant further alleges that it suffered from a media campaign instigated by the state-owned newspaper The Herald. An article published on its front page on 4 February 2019 entitled “Fresh MDC, ZCTU plot Exposed” claimed that the ZCTU and its research institute the LEDRIZ were used by the Movement for Democratic Change (MDC), the opposition party, “to train youth in violence and destabilizing tactics in order to render the country ungovernable and effect regime change”. The ZCTU raised its concerns through its lawyers and asked for the retraction of the allegations but was ignored by the publishers.
25. 995. The ZCTU also alleges that the Government, in retaliation for the success of the protest action, went on a witch-hunt in civil society and trade union leaders in a campaign to criminalize human rights defenders in Zimbabwe. Several civil society leaders and MDC alliance parliamentarians were charged with the same offences as the ZCTU leaders. Those arrested include: Pastor Evan Mawarire; Rashid Mahiya of Crisis in Zimbabwe Coalition; Amos Chibaya, Joana Mamombe, Charles Hwende and other members of the MDC; the President of the Amalgamated Rural Teachers Union of Zimbabwe (ARTUZ) Obert Masaraure and its Secretary General Robson Chere; and Zimbabwe Youth Alliance (ZYA) Chairperson Kumbirai Magorimbo. Threats were also issued against the ZLHR for providing legal representation to affected human rights defenders and against the Zimbabwe Doctors for Human Rights for providing emergency treatment to victims of torture and documenting cases of police brutality.
26. 996. The ZCTU alleges that the International Trade Union Confederation (ITUC) organized a solidarity meeting with the ZCTU on 25–27 February 2019 in Zimbabwe. The ITUC Deputy Secretary General, Mr Mamadou Diallo, was supposed to be at the meeting but his application for a visa was not processed. The ITUC-Africa Secretary General, Mr Kwasi Adu Amankwah, was arrested in Jameson Hotel an hour after checking in; he was detained in Harare from 5 a.m. until 4 p.m. His release was secured after the ZCTU petitioned the High Court.
27. 997. On 12–14 March 2019, the Southern Africa Trade Union Coordination Council (SATUCC) leadership composed of Mr Cosmas Mukuka (Vice President), Austin Muneku (Executive Secretary), Hahongora A Kavihuha and Angie Phori Phethe also visited the ZCTU. With the exception of Mr Mukuka, they were all subjected to interrogations by State agents at the Harare international airport. They were later allowed to enter the country. These interrogations and arrests created an atmosphere of intimidation of trade union leaders.

B. The Government’s reply

1. 998. In its communication of 22 March 2019, the Government indicates that the events of October 2018 are currently going through trial at the Harare Magistrates Court. It provides the following information in reply to the ZCTU allegations.
2. 999. On 1 October 2018, the Minister of Finance and Economic Development presented the fiscal measures for reversing fiscal disequilibrium as part of the efforts by the Government to grow the economy. The Ministry of Finance and Economic Development noted that the challenges faced by the country included: foreign currency and cash shortages, unsustainably high budget and current account deficit, emerging inflation pressures; slow moving reengagement processes, infrastructure deficiencies and weak social service delivery. These economic challenges required urgent reforms and bold decisions to stimulate growth and sustainable development. The policy intervention therefore sought to reduce budget deficit by increasing the tax collection base. The increase from five cents per transaction, to two cents per dollar per transaction, was necessitated by the increase in informalization of the economy and the increased use of mobile phone based transactions and electronic transfers.
3. 1000. The Government states that it took note of the concerns raised by the ZCTU following the introduction of the fiscal measures; however, it blames the ZCTU for deciding to demonstrate against the Government instead of calling for a Tripartite Negotiating Forum (TNF) meeting to further discuss the workers’ concerns. The Government points out that the ZCTU called upon “all citizens” to take to the streets in protest against the two per cent tax. Further to the mobilization of “all citizens” on 8 October 2018, the ZCTU notified the ZRP of its intention to participate in a demonstration on 11 October 2018. On 10 October 2018, the ZRP informed the ZCTU that they could not engage in the demonstration because of the situation in the country, which included the cholera outbreak. The Government states that when the ZCTU received the ZRP decision to ban the protest action, it took the matter to the High Court, which also denied the request to proceed with the demonstration. Despite the court judgment, the ZCTU went ahead with their protest action, which led to the arrest of some of its members. The Government points out that the ZCTU thus acted unlawfully given their defiance of a court order that barred the demonstration. The Government emphasizes that given the public health challenges that the cholera and typhoid outbreak represented, demonstrations were temporarily banned nationwide in order to contain the spread.
4. 1001. The Government indicates that on 10 October 2018, the ZCTU challenged the ban on demonstrations in the Magistrates Court. Before the matter was heard by the court, the ZCTU proceeded to engage in the protest action. In response, the law enforcement agents, through the ZRP, deployed officers to stop the unlawful demonstration. The arrests that ensued were done the confines of the law; all arrested persons were brought before the court within the stipulated time and were later granted bail, pending trial. Regarding the allegation that workers were held hostage, the Government indicates that the police acted within the law to prevent an escalation of the unlawful demonstration.
5. 1002. The Government considers it irrelevant to cite the report of the Commission of Inquiry of 2009 which related to the rule of the previous Government. The Government indicates that it is working to restore the enjoyment of workers’ rights and has been guided by the law. It urges the ZCTU to respect the law of the land, to exercise its rights peacefully while adhering to the procedures, and, instead of engaging in unlawful demonstrations, to use existing national dialogue platforms. The Government also indicates that the ZCTU submission for payment of compensation is premature since the matter is currently before the courts.
6. 1003. With respect to the POSA reform, the Government considers that this legislation does not apply to bona fide trade union activities, hence there is no need to reform it. The Government reiterates its commitment to respect and promote the rights of workers and urges the ZCTU to utilise the dialogue platform such as the TNF.
7. 1004. In its communication dated 9 September 2019, in reply to the ZCTU communication dated 2 April 2019, the Government recalls that the case reported by the ZCTU was before the courts. It considers, therefore, that it is premature for the case to be dealt with in detail. While requesting the Committee to allow due process at the national level to be followed, the Government nevertheless provides the following response to the issues raised by the ZCTU.
8. 1005. The Government submits that work was ongoing within the auspices of the TNF to address the socio-economic challenges that the country has been faced with for many years. A TNF meeting was set for 14 January 2019 and all tripartite partners had confirmed attendance. However, on 13 January 2019, the ZCTU President took to social media in the company of Mr Mawarire of the #thisflag following, a quasi-political organization which has a proven record for agitating civil disobedience. In the video that widely circulated on social media, Mr Mutasa addressed the general public and called for an illegal stay-away from 14 to 16 January 2019. The Government was surprised by this turn of events given the planned TNF meeting and expected the ZCTU to raise any concerns within that platform, as opposed to calling for a nationwide stay-away. It observes that the ZCTU has resorted to disengagement from the social dialogue and blamed the Government for the lack of progress at the TNF. Notwithstanding, the Government indicates that it remains committed to social dialogue and points in this respect to the promulgation of the TNF Act.
9. 1006. The Government indicates that the stay-away turned violent and resulted in massive looting of shops, ransacking private and public property including the burning of buses and barricading roads. Under these circumstances, the law enforcement agents stepped in to restore the law and order in the country. The Government emphasizes that the intervention of law enforcement agents was necessary to stop further damage, restore normalcy and allow citizens to carry out their normal day- to-day activities. The Government points out that the call by the ZCTU crippled the economy and affected everyone, both workers and non-workers alike. It further points out that in its submission, the ZCTU acknowledged that “groups of people not organized by the ZCTU engage in a public demonstration … ”. The Government considers that this shows that the demonstrations were not organized and it was incumbent upon the law enforcement agents to restore peace and tranquility. Furthermore, the ZCTU leadership continued calling for increased social disobedience at a time when the demonstrations became manifestly violent. The Government further indicates that the actions of the ZCTU triggered massive destruction of property, hence the arrest of the ZCTU President and Secretary General. The Government stresses the importance of abiding by the law by all citizens and trade unions. While they have rights, which they are free to exercise, they are expected to do so within the confines of the law.
10. 1007. The Government reiterates that the temporary closure of internet services was done in the best interests of all citizens to maintain peace and to curb the misuse of social media, which was threatening national security. The Government expresses its concern at the unsubstantiated claims of the ZCTU on the alleged brutality of the law enforcement agents who were deployed to restore peace and stop violence. The Government submits that these issues are currently before the courts. It considers that the ZCTU has deliberately absented itself from the scheduled meetings of the TNF to stifle progress and portray the Government in a negative light before the ILO supervisory bodies. The Government observes that the ZCTU is deliberately dabbling intrinsically in the political domain as evidenced by its association with Pastor Mawarire, who represents a regime change group calling for the ouster of the current administration.
11. 1008. The Government indicates that the participation in the tripartite delegations to international meetings has been affected by foreign currency shortages that have affected all members of the delegation and not only the ZCTU. While efforts have since been made to ensure the resolution of the challenges faced, the Government points out that it is the responsibility of the individuals concerned to approach the courts for relaxation of bail conditions whenever they wish to travel.
12. 1009. Regarding the alleged publication of an article negatively portraying the ZCTU, the Government submits that national laws promote media freedom and it has no control over The Herald.
13. 1010. The Government concludes by stressing that it is currently pursuing interventions meant to address the socio-economic challenges that the country is facing. Moreover, the Government has prioritized social dialogue through the promulgation of the TNF Act on 5 June 2019. The Government informs that the country’s President met with representatives of the workers before the launch of the TNF and workers freely expressed their concerns. The President took note of these concerns and they are currently being looked into, with some issues already having been resolved. This demonstrates the political will from the highest office to engage meaningfully in social dialogue processes. The Government therefore requests the Committee to impress upon the ZCTU the need to show commitment and to pursue social dialogue for resolution of issues affecting the country. The Government reiterates that the outcomes of all pending court cases involving trade union leaders will be shared with the Committee once they become available.

C. The Committee’s conclusions

1. 1011. The Committee notes that the ZCTU alleges restrictions on the right to demonstrate, killing of demonstrators, arrests, criminal prosecution of trade union leaders, and intimidation of trade union leaders and members. The Committee observes that the allegations relate to two protest actions that occurred in October 2018 and January 2019, respectively, following the adoption of certain fiscal and economic measures, which, according to the ZCTU, had a negative impact on workers and the population in general, and were, according to the Government, necessary to address the economic challenges the country is facing.
2. 1012. Regarding the October 2018 demonstration, the Committee notes that in Harare and in five other regions in the country, it was denied to the ZCTU by the ZRP on the grounds of a cholera outbreak. The ZCTU also indicates that in denying the right to hold a demonstration, the ZRP also considered that as some of the issues raised by the union were not labour matters, the union needed to comply with the POSA. The Committee notes from the copies of the ZRP responses (transmitted by the ZCTU) that in addition to the public health situation, the ZRP in Harare considered that “high unemployment and shortage of essential drugs and fuel are not labour related” issues; that the ZRP in Bulawayo considered that “the intended demonstration and issues raised by the ZCTU as a trade union are beyond the confines of the Labour Act and therefore the provisions of the POSA apply”; and that the ZRP in both Chinhoyi and Mutare makes reference to the POSA.
3. 1013. The Committee notes that while the ZCTU does not dispute the existence of a cholera outbreak, it argues that it was used selectively, given that a major gathering (a graduation ceremony) was held in Harare, bringing together people from all over the country, without any similar issue being raised. While the Committee is not in the position to comment on the public health reasons for not authorizing a demonstration, the Committee notes with concern that in several cases, the ZRP considered the issues raised by the ZCTU as being outside of bona fide trade union activities. The Committee considers in this respect that the holding of demonstrations, protest actions and public meetings to voice demands of a social and economic nature are traditional forms of trade union action. The Committee recalls that the application of the POSA in practice has been reviewed by the 2009 Commission of Inquiry and since then, by the Committee of Experts on the Application of Conventions and Recommendations (CEACR). While the Committee notes the Government’s indication that the POSA does not apply to bona fide trade union activities and hence, there is no need to reform it, it observes that a new legislation, the Maintenance of Peace and Order (MOPO) has been enacted to replace POSA. The Committee draws the legislative aspects of this case to the attention of the CEACR.
4. 1014. The Committee notes the Government’s indication that the High Court banned the October 2018 protest action and that the case was still pending in the Harare Magistrates Court. Recalling the importance it attaches to legal proceedings being conducted expeditiously, as justice delayed is justice denied, the Committee expects that the pending case be concluded without further delay. It requests the Government to provide, without delay, copies of the decisions issued by the High and Magistrate Courts on the lawfulness of the demonstration of October 2018.
5. 1015. The Committee notes that according to the ZCTU, 43 workers were arrested and 26 detained in connection with the events of 11 October 2018, including the ZCTU President and its Secretary General and other trade union leaders. The Committee notes the Government’s indication that the ZCTU proceeded with the demonstration despite a High Court decision and that therefore the police had to intervene to stop the unlawful demonstration, which resulted in arrests and detentions. The Committee recalls that the occupational and economic interests which workers defend through the exercise of the right to strike do not only concern better working conditions or collective claims of an occupational nature, but also the seeking of solutions to economic and social policy questions and problems facing the undertaking which are of direct concern to the workers [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 758]. The Committee observes from the Government’s latest communication that judicial proceedings are still ongoing, while according to the complainant organization, the accused should have appeared in court by the end of October 2018. Once again recalling that justice delayed is justice denied [see Compilation, para. 170], the Committee requests the Government to transmit, without delay, copies of the decisions rendered. The Committee further notes that according to the ZCTU, while four trade union leaders arrested in connection with the demonstration in Gweru were not prosecuted due to the lack of evidence, the police promised to follow-up through summons. The Committee requests the Government to ensure that no retaliatory measures are taken by the police against these workers.
6. 1016. Regarding the events of January 2019 the Committee observes that the ZCTU called for a three-day stay-away protest action. The Committee notes that the population has responded to the call and that regrettably, in some cases, it was accompanied by violence, looting of properties and shops and barricading roads by protesters. This, in turn, lead to confrontation between the demonstrators and the police during and after the events. It should be noted that the violence by both protesters and the police is condemned by the ZCTU. The Committee notes with the utmost concern the allegations made by the ZCTU of the death of 17 people, 81 gunshot assaults, 16 cases of rape and the arrest of 1,055 people.
7. 1017. The Committee notes, in this respect, the “Monitoring Report in the Aftermath of the 14 to 16 January ‘Stay Away’ and Subsequent Disturbances” issued by the ZHRC, a constitutional body, transmitted by the ZCTU. The Committee notes, in particular, that at the outset, the ZHRC condemned the violence committed by the protesters against private and public property. At the same time, the ZHRC noted numerous instances where the police and military patrols had acted unlawfully and without following the due process during arrests. The ZHRC further noted the death of at least eight people, mostly attributed to use of live ammunition by the police officers. It noted in this respect that the police officers “seem to resort to use of brute, excessive and disproportionate force in most circumstances thereby causing avoidable loss of life and also worsening the situation”. According to the ZHRC, it is therefore “disturbing to note that the deployment of the army in quelling civilian disturbances leads to loss of life and serious bodily injuries and other human rights violations, yet the Government continues to make such deployment”. The constitutional body has also noted that some of those who appeared in court had visible injuries and had not received medical attention. The ZHRC concluded by stating that the “findings reveal that in the aftermath of the 14th of January 2019 disturbances, armed and uniformed members of the Zimbabwe National Army and the Zimbabwe Republic Police instigated systematic torture”. While acknowledging that public and private property was “destroyed and vandalized/looted whilst barricades were placed on roads to stop people from going to work [ ... this] however did not justify torture of citizens by the security forces … ”. “In addition, the ZHRC noted that the method of arrest that was used by the police and soldiers amounted to arbitrary arrest and detention, a crackdown as opposed to law enforcement.” The ZHRC also concluded to the violations of the right of the pre-trial detainees.
8. 1018. The Committee recalls that the authorities should resort to the use of force only in situations where law and order is seriously threatened. The intervention of the forces of order should be in due proportion to the danger to law and order that the authorities are attempting to control, and governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in a disturbance of the peace [see Compilation, para. 217]. The Committee urges the Government to give appropriate guidelines to the army and the police on the use of force during protests. The Committee further urges the Government to indicate the measures taken to address the findings of the ZHRC report.
9. 1019. With regard to the arrest of the ZCTU Secretary General, on 21 January 2019, and the ZCTU President, on 26 January 2019, the Committee notes the ZCTU allegation that both were released on bail on 1 February after several postponements of the court hearing at the initiative of the state prosecutors. It also notes that since their arrest they have appeared in court more than 11 times and that their trial was postponed to 25 April 2019. In this regard, the Committee must recall that the arrest and detention of trade unionists, even for reasons of internal security, may constitute a serious interference with trade union rights unless attended by appropriate judicial safeguards [see Compilation, para. 136]. The Committee notes the Government’s indication that their case is still pending. The Committee further notes the ZCTU’s allegation that both leaders were charged under the Criminal Law (Codification and Reform) Act of subverting a constitutional government, or alternatively, inciting public violence, an offence, if convicted, accompanied by a prison sentence of up to 20 years. With reference to its conclusions above, the Committee urges the Government to drop the charges brought for reasons connected to their trade union activities and to abstain from resorting to measures of arrest and detention of trade union leaders or members for reasons connected to their trade union activities. If, in the meantime, the court has heard their cases, the Committee requests the Government to provide a copy of the judgment.
10. 1020. The Committee notes the ZCTU allegation that following the massive arrests, the cases of the arrested workers were fast-tracked without affording the accused persons enough time to prepare their defence. The Committee recalls that detained trade unionists, like anyone else, should benefit from normal judicial proceedings and have the right to due process, in particular, the right to be informed of the charges brought against them, the right to have adequate time and facilities for the preparation of their defence and to communicate freely with counsel of their own choosing, and the right to a prompt trial by an impartial and independent judicial authority [see Compilation, para. 167]. With reference to the ZHRC report, the Committee requests the Government to provide its observations thereon and to indicate the number of convictions and sentences rendered, as well as basis therefor, as decided by the courts.
11. 1021. The Committee notes that the TNF Act was enacted and that the TNF was launched on 5 June 2019. It expects this to begin a new era for social dialogue in Zimbabwe, based on the mutual respect and in the spirit of a genuine, effective and sustained exchange and communication between the stakeholders.

The Committee’s recommendations

1. 1022. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to provide, without delay, copies of the decisions issued by the High and the Harare Magistrates Courts on the lawfulness of the demonstration of October 2018.
   • (b) The Committee requests the Government to transmit, without delay, copies of the decisions rendered in cases of those arrested and detained in connection with the October 2018 workers. It further requests the Government to ensure that no retaliatory measures are taken by the police against workers who were not prosecuted due to the lack of evidence.
   • (c) The Committee urges the Government to give appropriate guidelines to the army and the police on the use of force during protests. The Committee urges the Government to indicate the measures taken to address the findings of the ZHRC report into the events of January 2019.
   • (d) The Committee urges the Government to drop the charges against the ZCTU Secretary General and its President brought for reasons connected to their trade union activities and to abstain from resorting to measures of arrest and detention of trade union leaders or members for reasons connected to their trade union activities. If, in the meantime, the court has heard their cases, the Committee requests the Government to provide a copy of the judgment.
   • (e) The Committee requests the Government to provide its observations on the ZCTU allegation regarding massive arrests following the events in January 2019 and to indicate the number of convictions and sentences rendered, as well as the basis therefore, as decided by the courts.
   • (f) The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.