Informe provisional - Informe núm. 325, Junio 2001

of trade unionists, interference in the internal

• administration of a trade union
  368. 368 The Committee previously examined the substance of this case at its November 1997, June 1998, June 1999, May-June 2000 and November 2000 meetings, presenting an interim report to the Governing Body in all these instances [308th Report, paras. 327-347; 310th Report, paras. 368-392; 316th Report, paras. 465-504; 321st Report, paras. 220-236; 323rd Report, paras. 176-200].
  369. 369 The Government provided further information in a communication dated 31 January 2001. Education International provided updated information in a communication dated 21 March 2001.
  370. 370 Ethiopia has ratified both 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. 371. During its previous examinations of this case, the Committee addressed very serious allegations of violations of freedom of association, in particular the Government’s refusal to continue to recognize the Ethiopian Teachers’ Association (ETA), the freezing of its assets and the killing, arrest, detention, harassment, dismissal and transfer of ETA members and officials. The Committee expressed on several occasions its grave concern with respect to the extreme seriousness of the case and urged the Government to cooperate in providing the Committee with a detailed response to all the questions posed by the Committee.
2. 372. At its November 2000 session, in the light of the Committee’s interim conclusions, the Governing Body approved the following recommendations:
   • (a) Considering that serious doubts still persist as to whether all the guarantees of due process were afforded to Dr. Taye Woldesmiate and his five co-accused, the Committee requests once again the Government to keep it informed of developments in the situation, in particular as regards any measures taken to release them.
   • (b) The Committee requests the Government to keep it informed of developments concerning the transfer of ETA property and assets, and to provide it with the final judgement of the Federal High Court, as soon as it has been issued.
   • (c) The Committee urges the Government to ensure that the introduction of the evaluation system for teachers is not used as a pretext for anti-union discrimination, and to inform it of progress in this regard.
   • (d) The Committee requests the Government, once again, to take the necessary measures to ensure that all the ETA members and leaders detained or charged are released and all charges withdrawn, and to ensure that in future workers are not subject to harassment or detention due to trade union membership or activities. The Committee invites the complainant organizations to provide updated information on workers still considered as aggrieved by the Government’s actions.
   • (e) The Committee again strongly urges the Government to take the necessary measures to ensure that the leaders and members of ETA who have been dismissed are reinstated in their jobs, if they so desire, with compensation for lost wages and benefits, and requests the Government to keep the Committee informed in this regard. The Committee invites the complainant organizations to provide updated information on those workers still concerned by these measures.
   • (f) Deploring that despite the extremely serious nature of the allegation, the Government has clearly indicated that it does not intend to establish an independent judicial inquiry into the killing of Mr. Assefa Maru, the Committee once again strongly urges the Government to ensure that an independent judicial inquiry be carried out immediately to determine the facts, establish responsibility, and appropriately punish the perpetrators if any wrongdoing is found. The Committee requests the Government to keep it informed regarding the establishment and outcome of the inquiry.
   • (g) Taking into account the lengthy period elapsed since the filing of this complaint, the seriousness of the situation as attested by the repeated interventions of the various supervisory bodies, as well as the Government’s stated willingness to make progress, the Committee urges the Government to reconsider the whole situation, with a view to taking a fresh and global look at all the pending issues and working towards their early resolution, and recalls that the Government may avail itself for these purposes of the ILO’s technical assistance.

B. The Government’s new observations

1. 373. In its communication of 31 January 2001, the Government states in general that it has repeatedly replied to the complainants’ allegations, but that the Committee seems reluctant to accommodate some of its observations, particularly those relating to the leaders of the Ethiopian National Front and the detention and arrest of ETA members. The Government further states that, as far as it is concerned, the ETA has elected a new executive from which it has received no indication on how to proceed with the complaint, which has very much affected the possible earlier resolution of the case. While the Government is willing to reconsider the whole situation and has approached the ILO for possible technical assistance, it feels that the Committee’s conclusions and recommendations relating to Dr. Taye Woldesmiate and his successor Mr. Assefa Maru, show antagonism towards the Government rather than promoting positive dialogue, and are not in line with the Committee’s general concluding remarks and recommendation [323rd Report, para. 199, and recommendation 200(g)].
2. 374. As regards the allegations of interference with the functioning of the ETA, the Government states that it has not interfered in the leadership controversies between the two executive committees, which have been resolved through judicial proceedings. The Government concludes that the new ETA executive committee was duly elected, without any interference on its part, and rejects the Committee’s conclusion in that respect [323rd Report, para. 192].
3. 375. Regarding Dr. Taye Woldesmiate and Mr. Assefa Maru, the Government states that the Committee, without any factual substantiation, does not seem to accept the fact that the Federal High Court found these individuals and their co-accused guilty of conspiring to overthrow the State, based on testimonies, documents and exhibits. These cases are related to the activities of an anti-peace terrorist group, not to their membership in the ETA. The Constitution and the Criminal Procedure Code guarantee due process and the rights of the accused. The decision was made by an independent court without any Government interference. The Government deeply regrets this second-guessing of the decision and feels that the Committee’s conclusions in this regard [323rd Report, para. 193 and recommendation 200(a)] reflect disrespect to the decisions and integrity of the Ethiopian courts, and amount to a request that the Government interfere in the functioning and independence of the judiciary. In connection with this, the Government rejects the Committee’s conclusions concerning Mr. Assefa Maru and requests the revision of the related recommendation [323rd Report, para. 200(f)], so as to allow a fresh look at pending issues with ILO technical assistance. The Government also insists on the establishment of relations with the new ETA executive to resolve the complaint; to that effect it requests the Committee to contact the new ETA executive to assess its views on pending issues.
4. 376. As regards the alleged detention of ETA members, the Government reiterates that there is no one arrested or detained in the country because of membership in the teachers’ union. The Constitution guarantees freedom of association. The Government refers to its previous observations on these issues, submits that these unfounded allegations should have been disregarded, and rejects the Committee’s conclusions in this respect [323rd Report, para. 200(d) and (e)].
5. 377. With respect to the transfer of ETA’s property and assets, the Government attaches to its communication a judgement of 19 July 2000 of the Federal Supreme Court confirming the lower court decision to transfer ETA’s property to the new executive committee.
6. 378. As regards the evaluation system for teachers, the Government reiterates its previous observations that this system was never used as a pretext for anti-union discrimination, but rather was introduced to promote academic efficiency. Union membership has no relevance in the functioning of this system.

C. The complainants’ new allegations

1. 379. In its communication of 21 March 2001, Education International (EI) provides an update of the situation of ETA with respect to freedom of association and the right to organize, and summarizes developments in the education sector which impact on those rights, based on information gathered during a mission undertaken in the country by EI from 10 to 16 March 2001. EI points out they have not been able to provide a complete answer and commentary on the Government submissions as reported in the 323rd Report of the Committee.
2. 380. EI representatives were able to meet Dr. Taye Woldesmiate in his jail, where he has now been detained for over five years. His conditions remain very severe, close to solitary confinement; he is in a small compound with six or seven others; they have access to an outside area which is only 10 x 4 metres and walled. He is not allowed to work in the prison school, to have access to the prison library, or to talk with any other prisoner other than those in his own compound. He has been denied dental care, although he was willing to pay the necessary treatment. He is however allowed to receive mail and some reading material. The EI delegation insisted with the authorities that Dr. Taye Woldesmiate be immediately released, on the grounds of several failings in the handling of the case. His lawyers appealed after his conviction in June 1999, but the Supreme Court has adjourned the case 12 times and has not ruled yet on the receivability of the appeal, a situation described as excessive even by the country’s standards. Both Dr. Taye Woldesmiate’s lawyers and officials made it clear that the Government would not act on any call for his release until all court procedures are exhausted. Dr. Taye Woldesmiate has been declared a prisoner of conscience by Amnesty International, after his case had been examined by their legal experts.
3. 381. No action has been taken to establish an independent inquiry into the murder, in May 1997, of Mr. Assefa Maru, then Deputy General Secretary of ETA. While the complainants strongly support the Committee’s recommendation in this respect, they have been told by Ministry of Justice officials that too much time had now elapsed to enable such an inquiry and that the police report on this issue was sufficient; the officials however agreed to consult further with the Prime Minister.
4. 382. As regards, more generally, freedom of association and the right to organize, the complainants submit that there is no such freedom in Ethiopia. The current law allows only one union in any sector. Further, civil servants, including teachers, do not have the right to unionize but they may form professional associations as non-governmental organizations. The Minister of Labour discussed with the EI delegation the proposed legal changes, which will apparently provide for plurality of representation at the workplace level and allow for civil servants to form and join unions. Such changes would be warmly welcomed by EI and by the ETA. All the authorities emphasized that the present Constitution provides for freedom of association and that the Government welcomes the formation of non-governmental organizations; the authorities said that there is no impediment to the formation of such organizations, including by teachers, providing they meet certain requirements. For EI, however, those requirements are, in practice, significant obstacles to genuine freedom of association.
5. 383. In the meantime, the situation in the education sector is totally in breach of Convention No. 87. Two organizations in fact exist. The first is the Ethiopian Teachers’ Association headed by Dr. Taye Woldesmiate. The second, which now enjoys government recognition, is led by Ato Ahmed Ababulgu. Through the courts and also with support of the police and other state security forces, the organization led by Dr. Taye Woldesmiate has been deprived of all its regional offices. Its bank accounts were first frozen and then handed over to the other group. At present its one remaining Addis Ababa property has been sealed by court order. The ETA has no access to its equipment and files. Rents from other offices on the premises, which were essential to enable ETA to continue operating even with its bank accounts frozen, must now be paid in court.
6. 384. Two of the court cases, including the remaining outstanding case (filed to deprive EI’s affiliate of its last remaining property), were brought by the Ababulgu group against the executive led by Dr. Taye Woldesmiate. One was brought in defensive response by Dr. Taye Woldesmiate’s organization against the “new” ETA. After an initial ruling in favour of Dr. Taye Woldesmiate’s executive, an Appeal Court subsequently determined that there was only one Ethiopian Teachers’ Association and that the General Assembly must determine the leadership, as provided for in the organization’s statutes. Both groups held general assemblies and confirmed their leaderships. However the Government continues to recognize only the group led by Ato Ahmed Ababulgu.
7. 385. The complainants submit that the Ethiopian Government has a responsibility to promote freedom of association under Convention No. 87. It should at the very least suggest that the new organization desist in its court action and encourage the two organizations to resolve their differences through discussion. If this fails it should make clear the right of both to exist with a fair distribution of the property between them.
8. 386. The government officials with whom the EI delegation met made a number of statements, summarized below and followed with an ETA or EI commentary:
   • – The authorities doubted the existence of the EI-affiliated ETA and questioned whether it had any members. In fact the EI mission met with more than 80 members of the Addis Ababa branch on 11 March 2001, and more would have been present had the mission been able to meet with them on the previous afternoon as they had expected. In 1997, EI was able to hold two meetings with ETA, Addis Ababa branch members; close to 300 members were present at each of these meetings.
   • – The authorities suggested that if the EI-affiliated ETA had any members then they were limited to Addis Ababa. In fact, since 1997 the ETA has held annual meetings and workshops attended by representatives from all but two regions. Further it has begun to restructure its organization in the regions but has been obstructed by regional and local authorities on the basis that the organization does not have the approval of the Federal Minister of Education; indeed ETA asserts that the Minister of Education instructed regional authorities not to deal with them or allow them access to schools. EI has requested, through the Vice-Minister of Education that the Minister write to the regions encouraging them to allow the EI and ETA to organize. This would not require a law change but could be done by administrative circular.
   • – The authorities stated that there was no requirement for all teachers to pay association dues to the new ETA, it was done entirely voluntarily and 95 per cent of teachers choose to be members of the new ETA. The EI delegation met a number of teachers who had attempted to stop dues deductions from their salaries going to the other organization. None had been successful despite written requests to the authorities. One teacher told of being transferred to a more distant school not long after having made such a request. EI also heard other accounts of similar experiences. A number of teachers and other people referred to a climate of fear, intimidation and politicization in the schools, with cadres of the ruling party appointed to dominant positions regardless of qualifications, service or experience.
   • – The authorities stated that the old ETA would be free to organize provided it did so on the basis of the structure determined by the Government, that is independent organizations should be developed in each region and then be affiliated to a federal body. The EI-affiliated ETA has begun the process of restructuring and rebuilding its organization at the regional level. However, the regional and local authorities impede it in that. Further, EI and ETA reject the Government’s right to dictate the structure of the association. That is a matter for the members to determine. The ETA is also deeply opposed to the imposition of ethnically based structures, which appear to be a feature of current government policies.
9. 387. Despite repeated requests to the Minister of Education, the authorities have refused to meet the ETA leaders even for discussions on any matter. The ETA and its members have many concerns relating to the implementation of the new education policy and to the present status and pay and conditions of teachers. They are denied access to any forum to present these concerns. The problems in the education sector are very serious at all levels. EI attaches to its communication a summary, by its ETA affiliates of the problems as they experience them. The refusal to recognize and involve the ETA in discussions on the development and implementation of education policy is not only in breach of Ethiopia’s responsibilities in terms of Conventions Nos. 87 and 98, but it is also a major impediment to quality education for all in Ethiopia.
10. 388. The implementation of the languages policy has created many difficulties and is perhaps the most contentious of the existing problems. Discontent not only amongst teachers but also amongst parents and students in some areas led to some serious disruptions during 1999 and 2000. As a result teachers were again subject to arbitrary dismissal, transfer and detention. To provide some indication of the extent of the problems when there is no social dialogue or participation of teachers or the wider community of parents and students in education policy development and implementation, EI attach a report from the Ethiopian Human Rights Council (EHRCO), covering the handling of the imposition of a particular language in the schools in the North Omo Zone.
11. 389. EI concludes by welcoming the proposed law changes and stresses the importance of them being introduced without further delay. The recognition by the Government of the right to organize of the ETA led by Dr. Taye Woldesmiate is a matter of great urgency. Even before the law changes, EI and ETA believe that the Government could take some initial administrative measures by way of circulars reminding school authorities of the rights of staff to determine which if any union they will join and to which organization membership dues should be remitted. The Government could also suggest that the “new” ETA withdraws the remaining court case and use independent mediation to resolve the difficulties between the two organizations. If mediation fails then both organizations must be free to organize with a fair distribution of the properties.
12. 390. There should also be: a halt to the continued harassment and intimidation of ETA members and activists; a halt to the politicization of decisions about teachers’ careers, including their promotions and transfers; reinstatement and compensation for those teachers who have been dismissed or arbitrarily transferred because of their membership in ETA. Dr. Taye Woldesmiate must be released and an independent inquiry initiated into the murder of Assefa Maru.

D. The Committee’s conclusions

1. 391. The Committee recalls that this complaint concerns extremely serious allegations of violations of freedom of association, and that it has already examined the substance of this case on no less than five occasions since November 1997, without being able to note much concrete progress. Given that it received recent information from the complainants, which give cause for concern but that the Government has not had yet an opportunity to comment, the Committee will only, at this stage, refer summarily to all its previous conclusions and recommendations, drawing attention to new or additional elements which have a bearing on them and calling, where necessary, for the Government’s observations.
   • Dr. Taye Woldesmiate and his co-accused
2. 392. The Committee notes that the Government reiterates its earlier position that Dr. Taye Woldesmiate and his co-accused were found guilty of terrorist activities and conspiracy to overthrow the State. Noting with deep concern that appellate proceedings have been adjourned 12 times without even a decision being issued on the receivability of the appeal, the Committee recalls that justice delayed is justice denied [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 56] and urges the Government to ensure that Dr. Taye Woldesmiate and his co-accused may enjoy, as soon as possible, the right to appellate proceedings, with all guarantees of due process. Referring to its previous conclusions and recommendation [323rd Report, para. 200(a)] in this respect, and taking into account the latest information on Dr. Taye Woldesmiate’s conditions of detention, the Committee requests once again the Government to keep it informed of developments in the situation, in particular as regards measures taken to release Dr. Taye Woldesmiate and his co-accused.
   • Inquiry into the killing of Mr. Assefa Maru
3. 393. While noting with regret the outright rejection, by the Government, of its conclusions and recommendation concerning Mr. Assefa Maru, the Committee notes that, according to the latest indications given by the complainants, further consultations may take place on this subject between officials of the Ministry of Justice and the Prime Minister. The Committee recalls that when trade union leaders or trade unionists are killed, seriously injured or disappear, it is imperative that independent judicial inquiries be instituted in order to shed full light, as rapidly as possible after the facts, to determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events [see Digest, op. cit., 4th edition, 1996, para. 51]. The Committee requests once again the Government to ensure that such an independent inquiry is held immediately, and to keep it informed of developments in this respect.
   • Arrests, detentions and harassment of ETA members
4. 394. As regards the allegations related to the ETA members and leaders who have been charged and detained, and to the harassment of workers due to their trade union membership and activities, the Committee notes that the Government asserts that no one is being detained in the country because of membership in the teachers’ union. The Committee refers to its previous recommendation in this respect [323rd Report, para. 200(d)] and requests the complainants to provide updated information on workers they consider as being still aggrieved by the Government’s actions.
   • Transfer or dismissal of ETA members
5. 395. The Committee notes that the Government has not submitted information concerning ETA members allegedly transferred or dismissed, and notes with concern the most recent information provided by EI in this respect. The Committee refers to its previous recommendation on these allegations [323rd Report, para. 200(e)], requests the Government to provide its observations on this subject, including as regards the latest allegations, and requests the complainants to provide updated information on workers still affected by these measures.
   • The evaluation system
6. 396. The Committee notes that the Government essentially reiterates its previous comments concerning the evaluation system, but notes with concern the latest allegations relating to the climate of fear, intimidation and politicization in the schools, with cadres of the ruling party being appointed to management positions regardless of teaching qualifications, service or experience. Recalling that the introduction of the evaluation system should not be used as a pretext for anti-union discrimination, the Committee requests the Government to keep it informed of developments and to provide its observations on the complainants’ latest allegations in this respect.
   • Interference in the functioning of the ETA;
   • freedom of association
7. 397. As regards the allegations of interference in the functioning of the ETA and the election of its executive committee, the Committee notes the Government’s statement that it has never interfered in these matters, which have been resolved through judicial proceedings. The Committee further notes that the Government recognizes only one teachers’ association led by the new executive committee, headed by Ato Ahmed Ababulgu. Given that under the current legislation, only one organization is allowed to exist in any sector, that prevents the establishment of another organization, be it led by the former ETA executive or by any other group of persons. In addition, the latest information provided to the Committee indicates that those teachers who attempted to stop their union dues from going to the new ETA were not successful, and that the old ETA would be free to organize if it did so on the basis of the structure determined by the Government (independent organizations developed in each region, then affiliated to a federal body). The Committee requests the Government to provide its observations on the latest information concerning these aspects, which raise a number of issues in relation to freedom of association principles, that it wishes to recall here:
   • – workers should in practice be able to establish and join organizations of their own choosing in full freedom, which implies, in particular, the effective possibility of forming, in a climate of full security, organizations independent both of those which already exist and of any political party [see Digest, op. cit., paras. 273-274];
   • – while internal dissensions within workers’ organizations do not lie within the competence of the Committee, governments should not intervene in a manner which might affect the exercise of trade union rights and the normal functioning of an organization party [see Digest, op. cit., para. 963];
   • – by according favourable or unfavourable treatment to a given organization as compared with others, a government may be able to influence the choice of workers as to the organization which they intend to join; by doing so, a government violates the principle laid down in Convention No. 87 that public authorities shall refrain from any interference which would restrict the rights provided for in the Convention or impede their lawful exercise [see Digest, op. cit., para. 304].
8. 398. The Committee further notes in relation to these issues, which have also been addressed by the Committee of Experts on the Application of Conventions and Recommendations in its last report [ILC, 2001, pp. 265-267] that the authorities discussed with the EI mission some proposed legal changes, which would provide for plurality of representation at workplace level and allow for civil servants and teachers to establish and join unions. Recalling to the Government that it may avail itself of the ILO’s technical assistance in this respect, the Committee requests the Government to keep it informed of developments.
   • ETA assets
9. 399. The Committee takes note of the judgement issued on 19 July 2000 by the Federal Supreme Court, which remitted the matter of assets ownership to the ETA general assembly. While recalling the general principles applicable in this respect (assets transferred to the members of the liquidated organization or to the succeeding organization; see Digest, op. cit., paras. 684-686), the Committee notes that, in the particular circumstances of this case, a fair resolution of this issue is closely linked to – if not dependent upon – the immediately preceding one, i.e. a real possibility for all workers concerned, in law and in practice, to establish and join freely an organization of their own choosing. If these conditions were met in practice, then – and only then – would it be possible to achieve an equitable division of assets. The Committee requests the Government to take these aspects into consideration when the ETA assets will be ultimately divided and appropriated.
   • General
10. 400. Noting with interest the authorities’ willingness to reconsider the whole situation, the Committee recalls once again that the Government may avail itself of the ILO’s technical assistance on all the above subjects.