Report in which the committee requests to be kept informed of development - Report No 323, November 2000

1. 555. In a communication dated 30 March 2000, the Zimbabwe Congress of Trade Unions (ZCTU) presented a complaint of violations of freedom of association against the Government of Zimbabwe.
2. 556. The Government furnished its observations in a communication dated 27 April 2000.
3. 557. Zimbabwe has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 558. In its complaint dated 30 March 2000, the ZCTU alleges that the Government has violated freedom of association principles by interfering in the running of the affairs of the ZCTU. In this regard, it points out that the Labour Relations Act gives the Government, through the Minister of Labour, sweeping autocratic powers to interfere in the running of the affairs of trade unions. Apart from registration and deregistration powers (sections 27-57), the Minister can also forcefully cause investigations to be carried out in the running of the affairs of trade unions (section 120(2)). Indeed, the Act is littered with provisions that empower the Minister to administer trade unions and, in some cases, employers' organizations.
2. 559. More specifically, the ZCTU asserts that in February 2000 the Government appointed an investigator in terms of section 120(2) of the Labour Relations Act in the belief that the ZCTU's funds and property "are being misappropriated or misapplied and the federation's affairs are being conducted in a manner that is detrimental to the interests of its members" (a copy of the Minister's letter is attached to the complaint and appears as Annex I to this case). Despite the ZCTU's protests in writing (the text of the ZCTU's letter is attached to the complaint and appears as Annex II to this case), the ZCTU indicates that the Government has insisted on carrying out the investigations.
3. 560. The ZCTU has challenged the constitutionality of these investigations in the courts, since article 21 of the Constitution of Zimbabwe relating to freedom of association protects the independent administration of the affairs of trade unions. In these circumstances, the ZCTU strongly objects to the law and practice of government interference in trade union business, as evidenced by the existence of autocratic laws (Labour Relations Act, as quoted) and the implementation by the Government of these enabling provisions. Convention No. 87 is very clear on these issues and, in the ZCTU's opinion, the Labour Relations Act is grossly in violation of Convention No. 87.
4. 561. Although the ZCTU is seeking legal redress through the courts, it urgently appeals to the Committee to examine the complaint with a view to assisting the ZCTU to: (a) have the compulsory investigations stopped; and (b) have section 120(2) of the Labour Relations Act amended to bring it in line with freedom of association principles.

B. The Government's reply

1. 562. In a communication dated 27 April 2000, the Government indicates that it is true that the Minister of Labour appointed an investigator to look into the financial affairs of the ZCTU in terms of section 120(2) of the Labour Relations Act (Chapter 28:01). The Government points out that the section in question ensures that the Minister responsible for labour administration protects workers' funds and properties from being used for non-worker activities.
2. 563. The Government further explains that sections 27-57 of the said Act (which the ZCTU alleges gives too much power to the Minister regarding registration and deregistration of trade unions, employers' organizations and their federations) are about regulating the manner in which these organizations can be formed and the circumstances in which they can be done away with in the national interest. This type of requirement is the standard norm in pieces of labour legislation worldwide. These are public organizations funded by special groups of the public, i.e. workers and employers.
3. 564. With regard to the ZCTU's specific complaint of investigation into its financial affairs by the Ministry, the Government contends that it all started with the ZCTU's formation of a political party - the Movement for Democratic Change (MDC) - a move which was resented by some of the trade unions affiliated to it. According to the Government, this objection is based on the freedom to freely associate with political parties of an individual's choice. When the ZCTU sponsored the launch of the MDC, some trade union organizations affiliated to it and opposed to the use of the federation's funds for political purposes called the Ministry to intervene. The Ministry had even before the launch of the MDC sought legal opinion from the Attorney-General's Office about the need to safeguard workers' funds and property.
4. 565. In any event, when the investigator commenced the investigation on 28 February 2000, the MDC was still using the ZCTU's offices and facilities. The Government emphasizes that it was against this background that the Minister invoked the provision of section 120 of the said Act. It is not that the Government is against the involvement of trade unionists in political matters.

C. The Committee's conclusions

1. 566. The Committee notes that the allegations in this case are of both a legislative and factual nature in respect of the issue of government interference in internal trade union affairs.
2. 567. As regards the legislative aspect of the case, the complainant alleges that, while the Constitution of Zimbabwe protects the independent administration of trade union affairs, subsection (2) of section 120 of the Labour Relations Act of 1985 gives sweeping powers to the Government to interfere in the running of the affairs of trade unions (section 120 is reproduced in full in Annex III to this case). The Government maintains that the provision in question protects workers' funds and properties from being used for non-worker activities. The Committee, for its part, notes that subsection (1) of section 120 stipulates that the Minister may order that any trade union or federation be investigated if the Minister has reasonable cause to believe that the property or funds of any trade union, or federation are being misappropriated or misapplied, or that the affairs of any trade union, or federation are being conducted in a manner that is detrimental to the interests of its members as a whole. The Committee further notes that, under the terms of subsection (2), the Minister can appoint an investigator who shall at all reasonable times and without prior notice, enter any premises (paragraph (a)); question any person employed on the premises (paragraph (b)); and inspect and make copies of and take extracts from any books, records or other documents on the premises (paragraph (c)).
3. 568. The Committee considers that the abovementioned provisions give rise to two different sets of problems from the standpoint of freedom of association. As regards paragraphs (a) and (b) of subsection (2) of section 120, the Committee has emphasized on previous occasions that the right of the inviolability of trade union premises necessarily implies that the public authorities may not insist on entering such premises without prior authorization or without having obtained a legal warrant to do so and any search of trade union premises, or of unionists' homes, without a court order constitutes an extremely serious infringement of freedom of association (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 175 and 177). Moreover, searches of trade union premises should be made only following the issue of a warrant by the ordinary judicial authority where that authority is satisfied that there are reasonable grounds for supposing that evidence exists on the premises material to a prosecution for a penal offence and on condition that the search be restricted to the purpose in respect of which the warrant was issued (see Digest, op. cit., para. 180). The Committee is of the view that paragraphs (a) and (b) of subsection (2), which authorize an investigator appointed by the Minister to enter trade union premises and question any person employed there at all reasonable times and without prior notice, clearly do not respect the principles enunciated above.
4. 569. Secondly, as regards paragraph (c) of subsection (2), which authorizes an investigator, at all reasonable times and without prior notice, to inspect and make copies and take extracts from any books, records or other documents on trade union premises, the Committee has previously held that the control exercised by the public authorities over trade union finances should not normally exceed the obligation to submit periodic reports. The discretionary right of the authorities to carry out inspections and request information at any time entails a danger of interference in the internal administration of trade unions. Moreover, as regards certain measures of administrative control over trade union assets, such as financial audits and investigations, the Committee has considered that these should be applied only in exceptional cases, when justified by grave circumstances (for instance, presumed irregularities in the annual statement or irregularities reported by members of the organization), in order to avoid any discrimination between one trade union and another and to preclude the danger of excessive intervention by the authorities which might hamper a union's exercise of the right to organize its administration freely, and also to avoid harmful and perhaps unjustified publicity or the disclosure of information which might be confidential (see Digest, op. cit., paras. 443 and 444). The Committee considers, consequently, that the powers of supervision contained in paragraph (c) of subsection (2) are not limited to exceptional cases; rather this provision gives excessive powers of inquiry to the administrative authorities into the financial management of trade unions, thereby violating the right of workers' (and employers') organizations to organize their administration without interference by the public authorities.
5. 570. For all the abovementioned reasons, the Committee would request the Government to take the necessary measures to ensure that subsection (2) of section 120 of the Labour Relations Act is amended in line with freedom of association principles enunciated in the preceding paragraphs. The Committee further requests the Government to keep it informed of any progress made in this regard.
6. 571. As regards the factual aspects of this case, the Committee notes that the complainant asserts that, in February 2000, the Government appointed an investigator under section 120(2) of the Labour Relations Act to look into the ZCTU's funds and property over the ZCTU's objections in writing thereto. The Committee notes that the Government does not refute this allegation but rather justifies the appointment of an investigator by the Minister responsible for labour administration in order to protect workers' funds and properties from being used for non-worker activities. According to the Government, it was obliged to appoint an investigator because when the ZCTU sponsored the launch of a political party - the Movement for Democratic Change (MDC) - some trade union organizations affiliated to the ZCTU were opposed to the use of the federation's fund for political purposes and called on the Ministry of Labour to intervene. The Government adds that, when the investigator commenced the investigation on 28 February 2000, the MDC was still using the ZCTU's offices and facilities.
7. 572. In this regard, the Committee would recall that it has reaffirmed the principle expressed by the International Labour Conference in the resolution concerning the independence of the trade union movement that governments should not attempt to transform the trade union movement into an instrument for the pursuance of political aims, nor should they attempt to interfere with the formal functions of a trade union movement because of its freely established relationship with a political party (emphasis added). Furthermore, provisions imposing a general prohibition on political activities by trade unions for the promotion of their specific objectives are contrary to the principles of freedom of association (see Digest, op. cit., paras. 451 and 452). In the situation at hand, it would appear to the Committee that the Government has practically resorted to banning the ZCTU from resorting to such political activities since, in the Government's own words, it invoked section 120(2) of the Labour Relations Act and initiated the investigation into the ZCTU's financial affairs because the federation sponsored the launch of an opposition political party, the Movement for Democratic Change (MDC).
8. 573. The Committee also notes the Government's statement that, when the ZCTU sponsored the launch of the MDC, some trade union organizations affiliated to the ZCTU who were opposed to the use of the federation's funds for political purposes called on the Ministry of Labour to intervene. As the Committee pointed out in a preceding paragraph, measures of supervision over trade union assets, such as investigations, should be applied only in exceptional cases, for example in order to investigate a complaint or irregularities reported by members of the organization. Hence, measures of supervision over the administration of trade unions may be useful if they are employed only to prevent abuses and to protect the members of the trade union themselves against mismanagement of their funds. However, it would seem that measures of this kind may, in certain cases, entail a danger of interference by the public authorities in the administration of trade unions and that this interference may be of such a nature as to restrict the rights of organizations or impede the lawful exercise thereof, contrary to the principles of freedom of association. It may be considered, however, to some extent, that a guarantee exists against such interference where the official appointed to exercise supervision enjoys some degree of independence of the administrative authorities and where that official is subject to the control of the judicial authorities (see Digest, op. cit., para. 442).
9. 574. The Committee notes, however, that the investigator responsible for carrying out the investigations into the ZCTU's financial affairs is appointed by the Minister (subsection (2) of section 120) and therefore enjoys no degree of independence of the administrative authorities. In the concrete case at hand, the Committee notes that the investigator is the Under Secretary of Administration and Finance of the Ministry of Public Service, Labour and Social Welfare. Moreover, the Committee notes with concern that the investigator is not subject to the control of the judicial authorities since, under the terms of subsection (3) of section 120, the investigator is obliged to report the results of his investigation solely to the Minister and, in so doing, may recommend, in the case of a registered federation, that such federation be deregistered and wound up or be administered in terms of subsection (7) (subparagraphs (i) and (ii) of paragraph (b) of subsection (3)). In these circumstances, the Committee urges the Government to take the necessary measures to stop forthwith the ongoing investigations into the ZCTU's financial affairs. It requests it to keep it informed of developments in this regard. It also requests the Government to ensure in future that measures of supervision over the administration of trade unions are exercised by an official who is independent of the administrative authorities and who is subject to the control of the judicial authorities.

Annex I

1. Minister of Public Service, Labour and Social Welfare Private Bag 7707/7750 Causeway
2. 25 February 2000
3. The Acting Secretary General Zimbabwe Congress of Trade Unions
4. Attention: I. Zindoga
5. Re: Appointment of an investigator in terms of section 120 of the Labour Act 28:01 to investigate the financial affairs of the Zimbabwe Congress of Trade Unions
6. Due to recent developments in the labour movement I have reasons to believe that the ZCTU's funds and property are being misappropriated or misapplied and the federation's affairs are being conducted in a manner that is detrimental to the interests of its members.
7. Accordingly, the situation calls for investigations therefore in terms of section 120(2) of the Labour Relations Act (Chapter 28:01). I have appointed an investigator to carry out a thorough investigation and report his findings to me.
8. The investigator, Mr. M. Siziba, Under Secretary, Administration and Finance, of my Ministry will be starting the investigation on 28 February 2000.
9. Your cooperation is greatly appreciated.
10. (Signed)
11. F.L. Chitauro (Mrs.) MP Minister of Public Service, Labour and Social Welfare
12. Annex II
13. Zimbabwe Congress of Trade Unions (ZCTU)
14. Chester House 88 Speke Avenue PO Box 3549 Harare
15. 2 March 2000
16. The Minister of Public Service, Labour and Social Welfare Compensation House Harare
17. Dear Honourable Minister,
18. Re: Appointment of an investigator
19. Reference is hereby made to your letter dated 25 February 2000, in which you introduced an investigator to investigate our financial affairs.
20. Whilst taking note of this development, we feel, as one of the social partners, we deserved to be given an opportunity through a meeting with your office to clarify any issues that you felt needed to be clarified.
21. Meanwhile, our National Executive Committee will convene soon to deliberate over your decision.
22. We strongly feel this was not necessary at all.
23. Yours faithfully,
24. (Signed)
25. I.M. Zindoga, Acting Secretary General.
26. Annex III Labour Relations Act
27. Part XV General
28. 120. Investigation of trade unions and employers' organizations
29. (1) If the Minister has reasonable cause to believe that the property or funds of any trade union, employers' organization or federation are being misappropriated or misapplied, or that the affairs of any trade union, employers' organization or federation are being conducted in a manner that is detrimental to the interests of its members as a whole, the Minister may order that such trade union, employers' organization or federation may be investigated.
30. (2) For the purpose of any investigation referred to in subsection (1), the Minister shall appoint in writing an investigator who shall, at all reasonable times and without prior notice, have power -
31. (a) to enter any premises; and
32. (b) to question any person employed on the premises; and
33. (c) to inspect and make copies of and take extracts from any books, records or other documents on the premises;
34. connected with or related to the trade union, employers' organization or federation under investigation.
35. (3) An investigator appointed in terms of subsection (2) shall report the results of his investigation to the Minister as soon as practicable and, in so doing, may recommend, having regard to all the circumstances of the case, that -
36. (a) in the case of an unregistered trade union, employers' organization or federation such trade union or employers' organization or federation be wound up; or
37. (b) in the case of a registered or certified trade union, employers' organization or registered federation such trade union, employers' organization or federation -
38. (i) be deregistered and wound up; or
39. (ii) be administered in terms of subsection (7).
40. (4) During the period of investigation of a trade union, employers' organization or federation no person who is or has been an office-bearer of the trade union, employers' organization or federation concerned shall, without the consent of the investigator, in any way expend or dispose of any property of the trade union, employers' organization or federation concerned.
41. (5) An investigator shall not refuse to grant consent in terms of subsection (4) in respect of any expenditure or disposal which is in the ordinary and lawful course of business of the trade union, or employers' organization or federation concerned.
42. (6) Where the Minister accepts a recommendation made in terms of paragraph (a) or subparagraph (i) of paragraph (b) of subsection (3), he shall -
43. (a) in the case of an unregistered trade union, employers' organization or federation make application to the High Court; or
44. (b) in the case of a registered trade union, employers' organization or federation make application to the Tribunal;
45. for the trade union, employers' organization or federation concerned to be wound up in terms of its constitution.
46. (7) Where the Minister accepts a recommendation made in terms of subparagraph (ii) of paragraph (b) of subsection (3), he shall make application to the Tribunal to appoint an administrator and such assistants as the administrator may require, to administer the affairs of the trade union, employers' organization or federation in respect of which the recommendation was made:
47. Provided that an administrator may not be appointed for more than six months or until the next annual general meeting of the trade union, employers' organization or federation concerned whichever is the later.
48. (8) An administrator appointed in terms of subsection (7) shall administer the affairs of the trade union, employers' organization or federation concerned in such a manner as to rectify the matters for the rectification of which he was appointed and, in so doing, may make an order -
49. (a) prohibiting any person who is or has been an office-bearer of the trade union, employers' organization or federation concerned from -
50. (i) expending, disposing of or in any way dealing with any property of the trade union, employers' organization or federation concerned; or
51. (ii) operating any account with any bank, building society or other financial institution on behalf of the trade union, employers' organization or federation concerned:
52. Provided that the administrator shall authorize any transaction or expenditure which he is satisfied forms part of the ordinary and lawful course of business of the trade union, employers' organization or federation concerned:
53. (b) directing any person who is or has been an office-bearer of the trade union, employers' organization or federation concerned to refund or return to such trade union, or employers' organization or federation any property which he has misappropriated from such trade union, employers' organization or federation.
54. (9) The administrator shall submit for registration any order made in terms of subsection (8) to whichever court would have had jurisdiction to make such an order had the matter been determined by it.
55. (10) Where an order has been registered in terms of subsection (9), it shall have the effect, for purposes of enforcement, of a civil judgement of the appropriate court.
56. (11) Any person who -
57. (a) makes any false representation to, or otherwise hinders or obstructs, an investigator or administrator in the performance of his functions under this section; or
58. (b) contravenes subsection (4);
59. shall be guilty of an offence.