Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 320, Marzo 2000

1. 852. In a communication dated 28 May 1999, the Zimbabwe Congress of Trade Unions (ZCTU) submitted a complaint of violations of freedom of association against the Government of Zimbabwe.
2. 853. The Government sent its observations in a communication dated 31 August 1999.
3. 854. Zimbabwe has not ratified either 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. 855. In a communication dated 28 May 1999, the Zimbabwe Congress of Trade Unions (ZCTU) complained of violations of human and trade union rights against its union which took place in December 1997 and March and November 1998.
2. 856. Firstly, the ZCTU indicates that it organized mass demonstrations on 9 December 1997 to protest against the Government's proposed War Veterans Levy (which was eventually scrapped). Despite the fact that the ZCTU, in conjunction with the Zimbabwe Human Rights Association, had been granted a Provisional Order by the High Court interdicting the Commissioner of Police from adverse interference in the protest march, the Zimbabwe Republic Police provoked people and eventually used tear gas and baton sticks against peaceful demonstrators. Scores of people were injured in the ensuing confusion and stampede. The Minister of Home Affairs and the Commissioner of Police were held responsible although it was not taken up in the courts of law.
3. 857. Furthermore, on 11 December, the Secretary-General of the ZCTU, Morgan Tsvangirai, was callously attacked in his office at Chester House by a group of persons, who at the time were unknown to him. This came two days after the much successful mass demonstrations in the country on 9 December. Coincidentally, threats had been issued against the ZCTU prior to this incident.
4. 858. Soon after the attack, the Secretary-General described his assailants to the police, also pointing out that the assassination attempt was politically motivated. The police, however, advised the ZCTU in March 1998 that they were proceeding to close the docket as their investigations were fruitless. Independent investigations carried out on behalf of the ZCTU established and identified three persons who may have been part of the group of assailants. In June 1998 the ZCTU through its lawyers wrote to the Attorney-General's office requesting that the Police Commissioner be instructed to reopen investigations into the assassination attempt on the life of Morgan Tsvangirai. To date, there is only a response from the police indicating they will further investigate to determine whether the initial investigations were done in honesty.
5. 859. Another incident occurred on 5 March 1998 when the ZCTU western region offices were gutted by fire. This occurred exactly two days after the labour centre organized a two-day mass stay-away to press the Government to scrap, among other things, the 2.5 per cent increase on sales tax, the unpopular 5 per cent development levy and the abolition of the new 15 per cent tax on pension profits. Investigations into this incident were put into jeopardy, especially by the state-run media reports which tried to link the fire with a ZCTU employee. To date, nothing has yet materialized from the investigations and there are no suspects.
6. 860. Finally, the ZCTU indicates that it organized national actions well into November 1998, intended to bring the Government to negotiate. However, although the results were partially delivered, the unilateral fuel price increases eroded the gains so far scored. The Government's reaction to these successful mass actions was that on Friday, 27 November President Mugabe used powers vested in him under the Presidential Powers (Temporary Measures) Act to amend the Labour Relations Act. He declared any industrial action illegal, thereby circumventing Parliament which is supposed to enact the laws of the country.
7. 861. The ZCTU filed an affidavit concerning this intervention with the High Court of Zimbabwe in December 1998 naming the President of the Republic of Zimbabwe, the Minister of Public Service, Labour and Social Welfare and the Attorney-General of Zimbabwe as respondents. The case is still pending as it was not put under urgent applications.

B. The Government's reply

1. 862. In a communication dated 3 August 1999, the Government indicates firstly as concerns the demonstration of 9 December 1997 that the demonstration organized by the ZCTU took place at a time when the Government had resolved not to effect the levies it had earlier on proposed with a view to meeting the gratuities of the War Veterans. Police had to come during the demonstrations in view of the fact that some workers and non-worker elements which joined in the protest started looting. In such a scenario, government intervention was necessary to maintain law and order. In the looting process several buildings/properties were damaged, especially in Harare.
2. 863. If the protest had been peaceful the police would not have intervened. Such police intervention is normal worldwide when violence is involved and where looting and wilful destruction of property is carried out in the name of mass protest. Both private and public properties needed to be protected and it was the duty of the Government to do so.
3. 864. As concerns the attack on the Secretary-General of the ZCTU, Morgan Tsvangirai, on 11 December 1998, the Government points out that the complaint is based on the Zimbabwean police's alleged failure to investigate this assault. According to the Government, however, the police, with the cooperation of the ZCTU, brought before the court the person whom Mr. Tsvangirai identified at a line-up as the assailant. The matter was heard in the Magistrate's Court and a verdict of not guilty was passed on 24 August 1999. The Government attached the court judgement to its reply. The Government states that it is not aware of whether Mr. Tsvangirai intends to appeal against the verdict.
4. 865. As concerns the gutting by fire of the ZCTU western region offices on 5 March 1999, the Government points out that the allegations concern delays by the police in investigating the circumstances surrounding the fire. Information from the police indicates that a docket (DR 3/3/98) was opened shortly after the incident and to date no arrest has been effected. The case is considered to be "closed incomplete". This means if evidence does arise the matter will be pursued to its logical conclusion.
5. 866. Like the assault on the Secretary-General which the State treats as a criminal act, the office incident is in the same vein treated as arson.
6. 867. As concerns the Presidential ban on the 27 November 1998 stay-away, effected through the Presidential Powers (Temporary Measures) Act, it was a response to actions by the ZCTU which were crippling the economy at a time the three social partners had agreed on the modus operandi in handling the economic problems besetting the nation. The ZCTU was aware of the terms of reference of the Tripartite Negotiating Forum (TNF) and its achievements at the time when it called for the stay-aways of 11 and 18 November 1998 which led to the government ban.
7. 868. The Government adds that the Presidential ban expired on 27 May 1999 and was never renewed.
8. 869. Finally, the Government asserts that the economic sabotage which some members of the labour movement and their allies have decided to pursue is indicative of their political agenda given that the majority of the demands are beyond normal labour matters. This is evident from the political movement formed by the ZCTU known as the Movement for Democratic Change (MDC) whose leader is the current ZCTU President, Mr. G. Sibanda. The MDC was transformed into a fully fledged political party on 11 September 1999.
9. 870. The Government states, however, that it is not abandoning the much-cherished social dialogue. The Ministry will continue interacting with the ZCTU in looking into the welfare of workers provided the labour movement has transparent, apolitical structures.

C. The Committee's conclusions

1. 871. The Committee notes that this case concerns serious allegations of violent police intervention in mass demonstrations, the assault of a trade union leader and the attack on trade union premises subsequent to national protest actions, as well as of the use by the President of the powers under the Presidential Powers (Temporary Measures) Act to amend the Labour Relations Act by declaring any industrial action illegal.
2. 872. As concerns the allegation of police intervention in a mass demonstration called by the Zimbabwe Congress of Trade Unions (ZCTU) on 9 December 1997, including the use of tear gas and baton sticks against peaceful demonstrators, the Committee notes the Government's indication that police intervention was necessary because some workers and non-worker elements had joined in the protest and started looting. In this respect, the Committee recalls generally that workers should enjoy the right to peaceful demonstration to defend their occupational interests. 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 law and 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 Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 132 and 137). In respect of the complainant's general assertion that tear gas and baton sticks were used against peaceful demonstrators, the Committee trusts that the Government will take all necessary measures in the future to provide adequate instructions to the competent authorities in order to eliminate any dangers of excessive violence.
3. 873. As concerns the subsequent assault of the Secretary-General of the ZCTU, Morgan Tsvangirai, and the complaint that the police have closed their investigation into this matter, the Committee notes the information provided by the Government to the effect that a man identified by Mr. Tsvangirai as one of the assailants was brought to trial but was found not guilty. In the event of assaults on the physical or moral integrity of individuals, the Committee has considered that an independent judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts. The absence of judgements against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights (see Digest, op. cit., paras. 53 and 55). Given the complainant's indication that a number of other persons have been identified as having been part of the group of assailants by independent investigations carried out on behalf of the ZCTU, the Committee requests the Government to take the necessary measures so that a complete independent judicial inquiry may be carried out, taking into consideration the information provided by the ZCTU, in order to determine those responsible and punish the guilty parties. The Government is requested to keep the Committee informed of the measures taken in this regard, as well as the results of the inquiry established.
4. 874. As concerns the setting fire to the ZCTU western region offices in March 1998, when examining allegations of attacks carried out against trade union premises and threats against trade unionists, the Committee has recalled that activities of this kind create among trade unionists a climate of fear which is extremely prejudicial to the exercise of trade union activities and that the authorities, when informed of such matters, should carry out an immediate investigation to determine who is responsible and punish the guilty parties (see Digest, op. cit., para. 179). The Committee notes that the Government's reply in respect of the actions taken to investigate this arson are limited to indicating that a docket had been opened but that the case was now "closed incomplete". The Committee therefore requests the Government to take the necessary measures to institute an independent investigation into the arson of the ZCTU offices and to keep it informed of the measures taken in this regard, as well as the results of the investigation established.
5. 875. Finally, the Committee notes the complainant's allegation that, following a mass national protest action in November 1998, the President declared all industrial action illegal. The ZCTU appealed to the High Court concerning this intervention in December 1998 but the case remains pending. The Committee further notes the Government's indication that this ban was a response to the stay-aways organized by the ZCTU which were crippling the economy whereas the social partners had agreed on a modus operandi for handling the nation's economic problems. The Government added that the Presidential ban in question expired on 27 May 1999 and has not been renewed. Finally, the Government asserts that the majority of the demands of some members of the labour movement are beyond normal labour matters and indicates that the ZCTU has formed a political movement known as the Movement for Democratic Change (MDC) which became a fully-fledged political party in September 1999.
6. 876. The Committee notes with regret that the Government's reaction to the November mass actions was to exercise special temporary Presidential powers to declare all industrial action illegal. It must recall that the right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests. Furthermore, as concerns the mass stay-away of November 1998 in respect of unilateral fuel price increases, the Committee would recall that organizations responsible for defending workers' socio-economic and occupational interests should be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and standards of living (see Digest, op. cit., paras. 475 and 480). Noting that the temporary ban on industrial action has now lapsed, the Committee requests the Government to provide a copy of the High Court judgement concerning the case brought by the ZCTU in this regard and trusts that it will refrain in the future from restricting the right of workers' organizations to undertake protest actions in respect of social and economic policies affecting workers.
7. 877. In this respect, the Committee notes that a Labour Relations Amendment Bill of 1999 which has been brought to its attention defines "unlawful collective job action" as, amongst others, "any strike, boycott, lock-out, sit-in, sit-out, stay-away or such other concerted action on the part of employers or employees which is engaged in wholly or mainly for the purpose of -- (i) resisting any law or lawful measure of the Government; or (ii) inducing or compelling the Government to alter any law or lawful measure; and which constitutes or involves a breach of any contract of employment". The Committee expresses its concern at the approach taken in this Bill which would appear to prohibit protest action in respect of social and economic policies. The Committee requests the Government to keep it informed of the status of this Bill and recalls that the International Labour Office is at the Government's disposal for any assistance or advice in respect of the conformity of this Bill with freedom of association principles.