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GB.271/18/5
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EIGHTEENTH ITEM ON THE AGENDA
Reports of the Officers of the Governing Body
Fifth report:
Possible implementation of the procedure set out in article 26.4
of the Constitution and appointment by the Governing Body
of a Commission of Inquiry
1. The Governing Body will recall that in 1994 complaints were submitted to the Committee on Freedom of Association against the Government of Nigeria by the ICFTU, the OATUU and the WCL. These complaints constitute Case No. 1793 before that Committee. The allegations, which are set out in the Committee's 295th Report (para. 567 et seq.), are claimed by the complainants to constitute violations of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which has been ratified by Nigeria. At its 270th Session (November 1997), the Governing Body took note of the 308th Report of the Committee on Freedom of Association which "deeply deplore[d] the fact that, for nearly three years, the Government has consistently evaded responding to the urgent calls for a mission and, when finally agreeing to a month when such a mission could be carried out, the Government waited until the eve of the mission to indicate that the period was not suitable". On that occasion, the Governing Body was given notice by the Workers' group of its intention to propose to the Governing Body at its present session that if no development had taken place by March 1998, it should apply the procedure provided for in article 26.4 of the Constitution and proceed to the appointment of a Commission of Inquiry.
2. By letter to the Director-General of 23 February 1998, the Chairman of the Workers' group of the ILO Governing Body referred to the above and, noting that the Government of Nigeria to date had not given any indication of its willingness to comply with the repeated requests of the Governing Body to receive a mission, requested the Director-General to undertake the necessary consultations with the Officers of the Governing Body with a view to including an item on the agenda of its 271st Session on the launching of a complaint against the Government of Nigeria under article 26 of the Constitution. The text of the letter is appended.
3. Article 26 of the Constitution provides as follows:
(1) Any of the Members shall have the right to file a complaint with the International Labour Office if it is not satisfied that any other Member is securing the effective observance of any Convention which both have ratified in accordance with the foregoing articles.
(2) The Governing Body may, if it thinks fit, before referring such a complaint to a Commission of Inquiry, as hereinafter provided for, communicate with the government in question in the manner described in article 24.
(3) If the Governing Body does not think it necessary to communicate the complaint to the government in question, or if, when it has made such communication, no statement in reply has been received within a reasonable time which the Governing Body considers to be satisfactory, the Governing Body may appoint a Commission of Inquiry to consider the complaint and report thereon.
(4) The Governing Body may adopt the same procedure either of its own motion or on receipt of a complaint from a delegate to the Conference.
(5) When any matter arising out of article 25 or 26 is being considered by the Governing Body, the government in question shall, if not already represented thereon, be entitled to send a representative to take part in the proceedings of the Governing Body while the matter is under consideration. Adequate notice of the date on which the matter will be considered shall be given to the government in question.(1)
4. 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) were both ratified by Nigeria in 1960.
5. The Officers have agreed to refer the matter to the Governing Body for consideration. The Governing Body may thus wish to decide if, in the light of the situation described in the Workers' request and after hearing any comments the government concerned may make, it wishes to institute the procedure provided for in article 26.4 of the Constitution and to proceed to appoint a Commission of Inquiry to consider the allegations referred to in paragraph 1 above.
6. If the Governing Body decides to exercise its powers under article 26.4, then before deciding whether or not to appoint a Commission of Inquiry it should, in accordance with article 22.3 of its Standing Orders, refer the matter to the Programme, Financial and Administrative Committee for a report on the estimated cost, including a suggestion as to how provision could be made for the necessary expenditure. A brief meeting of the Programme, Financial and Administrative Committee could be arranged at the present session for that purpose between sittings of the Governing Body or during a suspension thereof.
Geneva, 20 March 1998.
Points for decision:
Paragraph 5;
Paragraph 6.
Letter from the Chairman of the Workers' group of the Governing Body
Geneva, 23 February 1998
Dear Mr. Hansenne,
You will recall that I spoke in the Governing Body in November during discussions of the 308th Report of the Committee on Freedom of Association, concerning Case No. 1793, Nigeria.
I noted that despite the firm commitment given by the Government of Nigeria in June, it had once again failed to receive the mission which the Governing Body had been asking it to accept since November 1995 to examine all issues outstanding in the case. That led the Governing Body to conclude that there were serious doubts about the good faith of the Government in its dealings with the Committee.
In these circumstances, the Workers' group gave formal notice that they would propose to the Governing Body, at its next session in March 1998, that it launch a complaint under article 26(4) of the Constitution against the Government of Nigeria and set up a Commission of Inquiry if the mission had not been able to visit the country before then and to carry out its mandate freely and in full.
The information available to me now, nearly three months later, is that the Government of Nigeria has given no indication of its willingness to comply with the repeated requests of the Governing Body and to receive the mission. In the light of this continuing attitude of non-cooperation, and the limited time before the next session, it does not appear possible that the mission will go to Nigeria before the Governing Body meets.
I therefore ask you to undertake the necessary consultations with the other Officers of the Governing Body, as required by article 9(3) of the Standing Orders with a view to including an item in the agenda of its 271st Session on the launching of a complaint against the Government of Nigeria under article 26 of the Constitution.
Thank you in advance for your attention to this important matter.
Yours sincerely,
Bill Brett, Chairman, Workers' group.
1. The Government of Nigeria is at present represented on the Governing Body.