Informe provisional - Informe núm. 334, Junio 2004

1. 1090. The complaint is contained in a communication dated 20 November 2003 from the International Confederation of Free Trade Unions (ICFTU).
2. 1091. The Government provided its observations in a communication dated 25 February 2004.
3. 1092. Zimbabwe has ratified 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. 1093. In its communication of 20 November 2003, the ICFTU alleges that the Government of Zimbabwe has again committed gross violations of human and trade union rights against trade union leaders and members, which took the form of threats, intimidation, harassment, assaults and arrests, while the Zimbabwe Congress of Trade Unions (ZCTU) was exercising legitimate trade union activities.
2. 1094. On 8 October 2003, 165 trade union leaders were arrested across the country during a national protest against high taxation, high living costs, transport problems, cash shortages and violations of human and trade union rights. Among 41 trade unionists detained in Harare was Mr. Wellington Chibebe, general secretary of the ZCTU. Other trade unionists were detained in unknown places and some leaders, members and activists were assaulted, among them: Mr. Samuel Khumalo who was severely beaten by the police and left with clear marks on his body; Mr. Peter Munyukwi, chairperson of the ZCTU for the central region (City of Gweru) who was also severely assaulted; other persons were reportedly injured, including a member of the ZCTU Women’s Advisory Council.
3. 1095. On 9 October 2003, 21 of the 41 trade unionists arrested the previous day in Harare were released upon payment of a fine of Z$5,000. The remaining 20 trade unionists refused to pay the fine, insisting that they had been conducting a legitimate trade union campaign; a large number of those who refused to pay the fine were charged with "conduct likely to provoke a breach of peace" under the Miscellaneous Offences Act. The first two cases were to be tried on 23 October 2003; no sentence had been handed out at the time of presentation of the complaint. All unionists were eventually released by 10 October 2003; four of them received medical treatment for injuries inflicted by the police.
4. 1096. Early in November 2003, the ZCTU organized a national protest, scheduled for 18 November 2003, and duly notified the police thereof as mandated by the Public Order and Security Act (POSA). The police threatened to quash the protest which it described as an illegitimate demonstration under the POSA. That legislation, enacted in 2002, is inspired by the Law and Order Maintenance Act, that had been adopted by the colonial power to suppress black uprising against the minority white rule before independence.
5. 1097. Despite a letter sent on 17 November 2003 by the ICFTU requesting President Mugabe to allow the national protest to take place, the police pre-emptively arrested several trade union leaders and arrested 390 trade unionists participating in the protest on 18 November 2003. There are conflicting reports on the exact number of trade union leaders and members arrested on 17 and 18 November 2003, with government officials reporting two different figures, i.e. 88 and 105 arrests; the latter refers to 60 arrests in Harare, 30 in Gweru and 15 in Bulawayo. For its part, the union mentions 390 arrests (300 in Mutare, 50 in Harare, 19 in Bulawayo, 14 in Gweru, five in Maswingo, and one each in Victoria Falls and Gwanda).
6. 1098. In Harare, the top leadership of the ZCTU was arrested on 18 November 2003, including Mr. Chibebe (general secretary), Mr. Lovemore Matombo (president) and Ms. Lucia Matibenga (vice-president). Mr. Chibebe was separated from the rest of the arrested union leaders and held in solitary confinement. The riot police stormed the hotel where the ZCTU General Council was meeting to review the response from the police to the protest and arrested the following persons and took them to the police station: Elisa Miotshwa (first vice-president), Langton Mugeyi, Thabitha Khumalo, Phibion Chenyika, Tecla Masamba, George Nkiwane, Raymond Majongwe, Innocent Sibanda and Mankawuzane. The detainees were separated into two groups: regular members were charged under the Miscellaneous Offences Act, and leaders, who were denied access to their lawyers, were charged under the POSA for organizing a strike (the POSA carries heavier penalties than the Miscellaneous Offences Act).
7. 1099. In Bulawayo, Mr. David Shambare (western region vice-chairperson) was arrested in the early hours of 18 November 2003. He had already received threats for organizing industrial action at the National Railways of Zimbabwe and had been told at one time to vacate his home. Riot police broke up the demonstrations on 18 November 2003 by firing tear gas, beating up people and unleashing dogs on them; while fleeing from the police, one ZCTU activist was knocked down by a lorry and taken to hospital. A total of 19 persons, including the regional leadership, were arrested.
8. 1100. In Gweru, Mr. Peter Munyukwi (central region chairperson) was pre-emptively arrested at his home at 3.15 a.m. on 17 November 2003 (he had been severely assaulted in the protest on 8 October 2003 and has been a target of the police ever since), and 13 other persons were arrested on 18 October 2003.
9. 1101. In Mutare, 300 trade union activists were arrested while they were preparing to march into town; they were all released on 19 November 2003 upon payment of a fine of Z$5,000. In Maswingo, five people were arrested, and their release under a bail of Z$10,000 was being negotiated at the time of the complaint. In Victoria Falls, the district chairperson was arrested on 18 November 2003 for distributing flyers informing people about the ZCTU protest. In Gwanda, the district chairperson was arrested in the early morning of that same day.
10. 1102. The complainant organization adds that, in a further restrictive development, state media have reported that the police chief plans to present before Parliament a bill that, if enacted, would mandate criminal courts to refuse bail to persons arrested for offences likely to cause public unrest until they are tried. The ZCTU suspects that this law will apply to trade unionists taking part in strikes or related legitimate activities.
11. 1103. Furthermore, the Government has continued, as a general rule and on a regular basis, to intimidate and harass members and leaders of the ZCTU while they are engaging in any type of trade union activity. For instance on 16 October 2003, members of the Central Intelligence Agency (CIA) tried to take part in a ZCTU collective bargaining workshop in Mutare; they only left after they were satisfied that the meeting did not have a political agenda. On 6 November 2003, two ZCTU staff members (Messrs. Elijah Mutemeri and Vimbal Mashongera) working on a ZCTU/CTUC project on the informal economy, travelled to Chivhu to organize a one-day workshop; when proceeding to the workshop venue the next day, they were met by a group of youths and activists of the ruling ZANU, who subjected them to hostile questioning for one-and-a-half hours; after the interrogation, they were told to cancel the workshop and were escorted back to the bus stop to travel back to Harare.
12. 1104. For the complainant organization, these events are additional evidence that the Government of Zimbabwe continues to violate fundamental and trade union rights, particularly through continued police harassment of trade union leaders.

B. The Government’s reply

1. 1105. In its communication of 25 February 2004, the Government states that the events of 8 October 2003 constituted an unlawful demonstration by the leadership of the Zimbabwe Congress of Trade Unions (ZCTU). It is true that 55 trade unionists, including the ZCTU leaders, were arrested across the country because they had breached the Public Order and Security Act (POSA) by calling for a demonstration without clearance from the responsible authorities. All the trade unionists concerned, including Mr. Chibebe, were released on 9 October 2003 after paying the fines for breach of the POSA.
2. 1106. The Government adds that, on the day in question, workers ignored the ZCTU call for a demonstration; hence its leadership had to stage a demonstration on its own, which was done in contravention of the laws of the country. In fact, it was business as usual in all cities, towns and workplaces. According to the Government, the ZCTU leadership and, more generally, workers are very much aware of the Government’s efforts to address the economic problems of the country; all social partners have agreed to a joint approach to discuss these problems in the Tripartite Negotiating Forum (TNF). However, the ZCTU withdrew from the TNF in April 2003; that withdrawal premised its participation in oppositional politics. The failed demonstration was uncalled for since the Government had either addressed the specific concerns or was in the process of doing so. By 30 September 2003, the issue of cash shortages had been addressed. As regards the high taxation rates, trade unions were informed that the amendment to taxation thresholds depended on the 2004 budget, the new figures of which were to be announced in the autumn of 2003. The issues of urban transportation and high cost of living are also on the Government’s agenda: fuel has been earmarked for urban commuter bus operators; and measures to address macroeconomics fundamentals include price monitoring and surveillance mechanisms, particularly as regards basic commodities. According to the Government, trade unionists and workers rejected the ZCTU call as it was nothing more than the usual political expression of elements of the Movement for Democratic Change (MDC) within the ZCTU.
3. 1107. According to the Government, no trade unionists were assaulted during the arrests that day and nothing to that effect was brought to the attention of the police or the courts. In order to address these allegations, the Government requests details on these alleged assaults, e.g. where these were reported and which courts are handling them, in particular as regards Messrs. S. Khumalo and P. Munyukwi.
4. 1108. The Government further points out some contradictions in the complainant’s communications: the ICFTU letter of 20 November 2003 mentions 165 trade unionists being arrested, whereas a communication of 8 October 2003 had referred to 55 trade unionists in connection with the same incidents; the ICFTU letter of 20 November 2003 mentions that 21 of the 41 trade unionists were released on 9 October 2003 after paying fines and that the remaining 20 refused to pay fines, but nothing is said about the rest except that all were released on 10 October 2003; reference is also made to four trade unionists who received medical treatment for injuries allegedly inflicted by the police. Without details on these individuals, the Government is unable to make meaningful inquiries, and therefore needs clarifications.
5. 1109. As regards the demonstration of 18 November 2003, which again had not been authorized by the authorities under the POSA, the Government states that several trade unionists were arrested and fined. While the ICFTU acknowledges having conflicting figures, the investigation carried out by the Government reveals the following numbers of persons arrested: 53 in Harare, 13 in Gweru, 19 in Bulawayo and 222 in Mutare. It is true that several ZCTU leaders were arrested in Harare, including the following persons belonging to quasi-political organizations whose aim is to remove the legitimate Government by violence, in liaison with the main opposition political party: Mr. Lovemore Madhuku (chairperson, National Constitutional Assembly), Dr. John Makombe and Phillip Pasiral (both from Crisis Coalition).
6. 1110. The arrested trade unionists appeared in court in Harare on 20 November 2003 and were released on free bail with certain reporting conditions. These include: Wellington Chibebe (general secretary), Lovemore Matombo (president), Lucia Matibenga (first vice-president), Langton Mugeyi, Thabitha Khumalo and Raymond Majongwe. The Government refutes the allegation that Mr. Chibebe was held in solitary confinement; like any other person arrested by police, he was put in a holding cell with other persons.
7. 1111. In order to reply to the alleged interference by officials of the CIA in a collective bargaining meeting in Mutare on 16 October 2003, the Government requests more details as to which trade union and its employer counterpart were interfered with. The Government also requests further information on the alleged incidents in Chivhu on 6 November 2003.
8. 1112. The Government is not aware of any bill which would criminalize trade union activities, including strikes, as alleged by the complainant. Issues relating to collective job actions are dealt with in the Labour Act, Chapter 28:01.
9. 1113. The Government reiterates that the ZCTU has in its ranks elements pursuing the political agenda of the MDC, an opposition party whose formation was facilitated by the ZCTU. The MDC agenda is to remove the legitimate Government by violence. It is not surprising to see these ZCTU elements, together with members of quasi-political organizations such as the NCA, calling for or staging demonstrations over matters that could be easily discussed with the Government, and not following the procedures laid down in the POSA. Genuine meetings and demonstrations which are within the confines of labour are never interfered with, and are not even subject to the POSA. Only the courts of law, which are independent, may determine whether particular conducts are criminal.

C. The Committee’s conclusions

1. 1114. The Committee notes that this complaint concerns allegations of arrests of trade union leaders and members of the Zimbabwe Congress of Trade Unions (ZCTU), and of anti-union intimidation and harassment through repeated interventions by the authorities and the police, including instances of trade union workshops being delayed or prevented from taking place.
2. 1115. The Committee further observes that these incidents follow similar events in March 2002, as a result of which the Committee requested the Government to exercise great restraint in relation to interventions in the internal affairs of trade unions [Case No. 2184, 329th Report, para. 831] and in December 2002, where it reiterated its call to the Government to refrain from interfering in the ZCTU trade union activities and from arresting and detaining trade union leaders and members for reasons connected to their trade union activities [Case No. 2238, 332nd Report, para. 970]. Furthermore, the Committee felt sufficiently concerned with the extreme seriousness and urgency of that last case as to call the Governing Body’s special attention to the situation [332nd Report, para. 4, approved by the Governing Body at its 288th Session].
3. 1116. Regarding the political aspect raised by the Government, the Committee must recall once again that trade union activities cannot be restricted solely to occupational matters since government policies and choices are generally bound to have an impact on workers. While trade union organizations should not engage in political activities in an abusive manner and go beyond their true functions by promoting essentially political interests, a general prohibition on trade unions from engaging in any political activities would not only be incompatible with the principles of freedom of association, but also unrealistic in practice. Trade union organizations may wish, for example, to express publicly their opinion regarding the Government’s economic and social policy [see Digest of decisions and principles of the Freedom of Association Committee, 1996, 4th edition, paras. 454-455] or, as in the present case, on issues relating to the high cost of living or trade union rights.
4. 1117. The Committee notes that the Government only made general observations on some allegations and requested additional information in order to provide a complete answer. The Committee therefore requests the complainant to give details on: the circumstances of the arrest and detention of Messrs. S. Khumalo and P. Munyukwi; and the number and circumstances of arrests made on 8 October 2003, including particulars about the four trade unionists allegedly injured by police.
5. 1118. Pending further information from both sides in connection with the October and November 2003 events, the Committee nevertheless recalls in general that the detention of trade union leaders or members for reasons connected with their activities in defence of the interests of workers constitutes a serious interference with civil liberties in general and with trade union rights in particular [see Digest, ibid., para. 71]. The Committee must again express its particular concern since this kind of government interference has already occurred several times in the country, and may create an atmosphere of intimidation and fear prejudicial to the normal development of trade union activities [see Digest, ibid., para. 76]. The Committee strongly urges once again the Government not to resort to such measures of arrest and detention of trade union leaders or members for reasons connected to their trade union activities.
6. 1119. As regards the incidents in Mutare on 16 October 2003 (collective bargaining workshop) and Chivhu on 6 November 2003 (ZCTU/CTUC workshop on the informal economy) the Committee notes that these meetings were prima facie legitimate trade union activities. The Mutare workshop was allowed to proceed only after the CIA officers were satisfied that the meeting did not have a political agenda (see the comments above in this respect); and the Chivhu workshop could not take place at all as the ZCTU representatives were ordered to travel back to Harare after hostile questioning by ZANU activists. Recalling that freedom of association implies not only the right of workers and employers freely to form organizations of their own choosing, but also the right for the organizations themselves to pursue lawful activities for the defence of their occupational interests [Digest, ibid., para. 447], the Committee once again strongly urges the Government not to interfere in the ZCTU’s legitimate trade union activities.
7. 1120. As regards a bill that would allegedly be prepared and might be used against trade unionists and members taking part in strikes or related legitimate trade union activities, the Committee notes that no concrete evidence has been submitted and that the Government formally denies that any such legislation is being prepared, let alone considered.