Informe provisional - Informe núm. 337, Junio 2005

1633. The Committee already examined the substance of this case at its March 2005 meeting, where it presented an interim report to the Governing Body [see 336th Report, paras. 891-914, approved by the Governing Body at its 292nd Session].

1. 1634. The complainant organization submitted additional information in a communication dated 7 February 2005. The Government provided its additional observations in a communication dated 16 February 2005.
2. 1635. Zimbabwe has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and the Workers’ Representatives Convention, 1971 (No. 135).

A. Previous examination of the case

1. 1636. In its previous examination of the case, the Committee made the following recommendations [see 336th Report, para. 914]:
2. (a) The Committee requests that, if the competent body decides that the dismissal of Mr. Takaona was for anti-union reasons, Mr. Takaona be rapidly reinstated in his functions, or in an equivalent position, without loss of pay or benefits. The Committee requests the Government to keep it informed of developments in this respect and to provide it with a copy of any decision handed down.
3. (b) The Committee urges once again the Government to abstain in future from resorting to measures of arrest and detention of trade union leaders or members for reasons connected to their trade union activities.
4. (c) The Committee urges the employer and the union to reconsider the transfer decision affecting trade union leader Mr. Mangezi, with a view to permitting his return to his initial workplace in due course, if he so desires. The Committee requests the Government to keep it informed of developments in this respect.
5. (d) The Committee once again calls the Governing Body’s special attention on the extreme seriousness of the general trade union situation in Zimbabwe.
6. (e) The Committee will examine the new allegations made by the ICFTU in a communication of 7 February 2005 and the Government’s reply of 21 February at its next meeting.
7. B. New allegations
8. 1637. In its communication of 7 February 2005, the ICFTU provided information on the cases of Messrs. Matombo, Nkala, Chizura and Munandi (which will be dealt with by the Committee as part of Case No. 2328).
9. 1638. Concerning the arrest of four trade union leaders on 5 August 2004 (namely Lucia Matibenga, ZCTU Vice-President and President of SATUUC; Wellington Chibebe, ZCTU Secretary-General; Sam Machinda, Vice-Chairman, ZCTU central region; and Thimothy Kondo, ZCTU Advocacy Officer) the complainant organization stated that they were arrested for attending a ZCTU workshop held in Gweru to discuss various subjects: the high level of taxation; the Tripartite Negotiating Forum; social security and the National Social Security Authority (NSSA); AIDS; and feedback on the June 2004 ILO Conference. They were initially accused with organizing the workshop without police clearance but the charges were changed later that day, which the ICFTU believed was due to section 46(j) of the Public Order and Security Act (POSA) which provided that trade unions do not have to seek police clearance before meetings. During the afternoon, the four leaders were fingerprinted and given oral warnings, while new charges were being prepared. The ZCTU believes that the police was acting under external pressure because it took it very long to press charges, and it kept passing the final decision back and forth between the officers responsible for the arrest and the Law and Order Department.
10. 1639. During their detention, Mr. Sam Machinda, who suffers from diabetes, was refused medication; the police insisted to see a letter from his doctor confirming his medical condition. The ZCTU lawyer was prevented for a day from filing an urgent application for their release at the High Court as the duty officer was not available; he instead tried to have them released on bail. After a short appearance at the Gweru court on 6 August, the four trade union leaders were released on a Z$200,000 bail each. They were set to appear in Gweru magistrate court on 8 September 2004 for violation of section 19(1)(B) of the POSA (conducting a riot, disorder or intolerance); they were also accused of uttering words likely to cause despondence and encourage the overthrow of the Government. The case was postponed to 3 November, where the cases of Ms. Matibenga, Mr. Machinda and Mr. Kondo were withdrawn before plea; Mr. Chibebe was ordered to reappear in court on 25 November 2004 and later on 1 March 2005. Mr. Chibebe was also forced to abandon another workers’ meeting in Masvingo only a week before 5 August 2004.
11. 1640. The ICFTU added that on 6 August 2004, Mr. Gideon Choko, General Secretary of the Zimbabwe Amalgamated Railwaymen’s Union (ZARU), a ZCTU affiliate, and eight other activists from Bulawayo were to appear in court concerning their participation in a demonstration, on 18 November 2003, against the high level of taxes. Also on 18 November 2003, 41 workers were suspended from their work at Colcom Pvt. Ltd., and two workers were dismissed at the David White Spinners Co. in Chegutu for attending that same demonstration.
12. 1641. The Netone company dismissed 56 workers who had taken strike action in June 2004 because management refused to negotiate with the workers. On 1 October 2004, an arbitration award in their favour ordered the company to reinstate the dismissed workers without loss of pay and benefits from the date of the illegal dismissal; the company challenged the award before the Labour Court. Meanwhile, the workers registered the award in the High Court and obtained an execution order, including seizure of Netone property; the company applied for a stay of the execution order; the court ultimately issued a temporary stay pending the hearing of the dispute in the Labour Court.
13. 1642. As regards the Zimbabwe Post (Zimpost) strike and the arrest of three trade unionists, the ICFTU stated that three members (Messrs. S. Khumalo, S. Ngulube and B. Munemo) of the Communication and Allied Service Workers’ Union of Zimbabwe (CASWUZ) were arrested on 11 October 2004 in Bulawayo, without any reason being given for their arrest. Messrs. Ngulube and Munemo were held at the Bulawayo central police station, but Mr. Khumalo was kept at an undisclosed location; the ZCTU was concerned that Mr. Khumalo was separated from the other workers since he had been a target of the police in 2003 where, during a ZCTU demonstration against high levels of taxation, he had been arrested and beaten up by police, who left him for dead.
14. 1643. These October 2004 arrests followed a week of strike by workers of the state-owned post and telecommunication firms, Zimpost and TelOne, over management’s failure to pay salary increments awarded in March and June 2004 by arbitration, after protracted negotiations. The parties met four times to discuss the implementation of the March award; in the end, management decided unilaterally to pay less than half of the terms prescribed by the arbitration award and challenged its validity before the High Court. TelOne workers requested the intervention of the competent ministry, whose permanent secretary advised management to desist from the case and seek an out-of-court settlement. Management refused to do so, and even refused to participate in the regular negotiations that take place every three months. The workers consequently gave the 14-day legal notice and went on strike on 6 October 2004.
15. 1644. On 12 October, about 25,000 workers (half of the post and telecommunications industry labour force) joined the strike. On 21 October, the Government deployed armed personnel at major post offices and telecom exchanges nationwide, and began using its security apparatus to harass and intimidate strikers and the local union leadership. Mr. Sikosana (Provincial Vice-Chairman) was arrested in Bulawayo on 11 October; he had to plead guilty and pay a fine. Six other union members (V. Kufazvani, S. Hamadzripi, M. Kim, H.Kasipani, Z. Magama and C. Mweyezwa) were arrested in Gweru; they were released upon payment of a Z$20,000 fine.
16. 1645. In Mutare, three workers (E. Mparutsa, T. Mereki and R. Kaditera) were arrested and charged under the Miscellaneous Offences Act; in order to be released, they had to plead guilty and pay fines ranging from Z$20,000 to Z$40,000. On 6 October, four workers (P. Marowa, A. Mhike, J. Nhanhanga and O. Chiponda) were arrested immediately after listening to an address by the union education officer, who encouraged them to continue the strike in spite of intimidation by the employer; they were later released without charge. The ICFTU added that management, assisted by the Central Intelligence Organization (CIO), had shown up at some of the workers’ homes in order to coerce and intimidate them into resuming work. All striking TelOne workers were suspended as a result of their legitimate trade union action.
17. 1646. On 26 October 2004, a full bench of the Labour Court heard the TelOne case and ruled in favour of the union. Management refused to comply with the court decision (just as it had already refused to comply with the arbitration award); instead, it withheld workers’ wages in October and November, and refused to deduct and transfer union dues to CASWUZ. ZIMPOST management also refused to comply with an agreement signed on 9 October at the National Employment Council of the Communications Sector; instead, it unilaterally started disciplinary procedures against striking workers. The CASWUZ asked the courts to make management abandon disciplinary hearings against its members and all workers who participated in the strike.
18. 1647. The ICFTU also stated that its affiliate organization, the Congress of South African Trade Unions (COSATU) was supposed to lead a one-week fact-finding mission in Zimbabwe starting 25 October 2004. The purpose of that mission was to meet with trade unions, different civil society organizations and government officials, to assess the factual situation in order to contribute to resolving some of the acute problems faced by Zimbabwe and its trade union movement; the mission also wanted to address the economic crisis that adversely affected workers in the country. The authorities wrote to COSATU on 22 October to inform it that that mission was “unacceptable” since some of the civil society organizations that COSATU had planned to meet were “critical of the Government” and that the mission was “predicated in the political domain”. Despite the Ministry’s letter, COSATU decided to send a 14-member delegation, led by COSATU Deputy President Violet Seboni, which was met upon arrival by officials, who told it to refrain from meeting a number of organizations (Zimbabwean Crisis Coalition; Zimbabwe Council of Churches; National Constitutional Assembly; Zimbabwe Election Support Network; Zimbabwe Lawyers for Human Rights) because the Government believed these were linked to political opposition. The delegation refused to make such a promise but was nevertheless allowed into the country.
19. 1648. On 26 October, the delegation held its first meeting with the ZCTU at the latter’s headquarters, hosted by ZCTU General Secretary Wellington Chibebe and his deputy Collen Gwiyo; the police invaded the building and interrupted the meeting in progress. The COSATU delegation was told that the Government had decided that their mission had come to an end and that they should leave the country immediately. About 40 police officers and security guards escorted the delegation to their hotel to collect their belongings and then directly to the airport, where they were held by armed guards until 11 p.m., when they were ordered into a bus and driven to Beitbridge, a city on the border between Zimbabwe and South Africa, about 600 km. south of Harare, where they arrived around 5 a.m. and were left to organize their own trip back to Johannesburg.
20. 1649. The ICFTU stated that, as a consequence of that failed COSATU mission, on 31 October, three armed police officers accompanied by three interrogators searched the home of Mr. Gwiyo in Chitungwiza, a suburb of Harare, and ransacked it; as he was absent, they left a message ordering him to report to the Chitungwiza police station. Mr. Gwiyo suspected that the search was linked to the COSATU visit since the house search was made only a few days after it, and he had been part of the ZCTU group that hosted the mission. Furthermore, ZimOnline (an online newspaper) reported that the Government might want to punish ZCTU officials who had invited the mission despite its objections. On 1 November, Mr. Gwiyo was picked up by police and interrogated on his role in inviting COSATU and about the use of violence against ZANU PF (the ruling party) activists. He was not charged for his role concerning the COSATU mission but was charged with violence against ZANU PF activists; the arresting officer did not appear at the hearing on 5 November, and the case was withdrawn.
21. 1650. According to the ICFTU, the Embassy of Zimbabwe to Kenya also tried to justify the deportation of the COSATU mission to the Central Organization of Trade Unions of Kenya (an ICFTU affiliate) on the grounds that the mission was political and that the Government itself wanted to accept an invitation from the South African Minister of Labour to organize a meeting between the two Governments, COSATU and ZCTU, which the latter allegedly refused. However, the ICFTU indicated that it could not see how this could justify the deportation of a trade union mission providing solidarity to a sister organization.
22. 1651. On 2 February 2005, a second COSATU delegation attempted to visit the ZCTU, to discuss matters of interest to Zimbabwe workers. It was stopped at Harare airport even before entering the country, and ordered to return immediately to South Africa.
23. C. The Government’s new reply
24. 1652. In its communication of 16 February 2005, the Government provided information on the cases of Messrs. Matombo, Nkala, Chizura and Munandi (which will be dealt with by the Committee as part of Case No. 2328).
25. 1653. Concerning the arrests of four trade union leaders (Ms. Matibenga, Mr. Chibebe, Mr. Machinda and Mr. Kondo) on 5 August 2004, the Government replied that the meeting in question had nothing to do with legitimate trade union business. It reiterated its position that there were individuals in the ZCTU who mischievously use the banner of trade unionism to pursue their selfish and misdirected goals. The persons in question had called this meeting to agitate on the political front on behalf of the Movement for Democratic Change (MDC), an oppositional party. The ICFTU and the ZCTU have singled out ZCTU membership as a license to violate the legal provisions governing the convening of political gatherings. The Government therefore submitted that political activists who happened to be trade unionists were ostensibly engaged in political “activities in an abusive manner” by promoting essentially political interests without adhering to the rules governing such conduct. The Government stated further that it had no information on the workers’ meeting in Masvingo, which Mr. Chibebe was allegedly forced to abandon.
26. 1654. Concerning the dispute at the Netone company, the Government stated that the courts were handling the alleged unfair dismissal of the workers concerned; it was better to let the courts decide and give a ruling and the individuals concerned would be better advised to follow the legal remedies available in the judiciary system.
27. 1655. As regards the dispute between CASWUZ and Zimpost management, the Government pointed out that the union involved had initiated legal proceedings against the employer, and that it had no case to answer over a dispute which was before the courts.
28. 1656. The Government stated that it would appreciate being given actual details and more information concerning the arrest of three trade unionists on 11 October 2004, as part of the ZIMPOST strike. It emphasized, however, that trade unionists were not infallible and that they were expected to respect the law of the land, irrespective of their status.
29. 1657. As regards the COSATU missions, the Government finds it quite disturbing that a trade union movement of another country has the audacity to write to the President of the country, informing him that they had resolved at their own meeting to send a “fact-finding” mission, to investigate and involve themselves into the political affairs of Zimbabwe. The COSATU mission was indeed political, given that they had drawn up a list of organizations to visit; these organizations agitated in the political arena for the unconstitutional removal of the legitimate Government of Zimbabwe, which had exercised its right to protect its territorial integrity and sovereignty, notwithstanding the perceived rights to solidarity by political activists who masqueraded as trade unionists. For the Government, trade union solidarity was no license for trade unions freely to associate in order to unseat national governments.
30. 1658. Pointing out that Mr. Collen Gwiyo is a MDC councillor in Chitungwiza, the Government suspected that this was a case of political contestation given his political standing in that city and also due to the fact that Mr. Gwiyo faced allegations of political violence, which the Government did not tolerate, irrespective of party affiliations. It was unfortunate that the ICFTU decided to ignore the allegations levelled at Mr. Gwiyo and to draw a link with the COSATU story.

D. The Committee’s conclusions

1. 1659. The Committee notes that the new allegations in this case concern: dismissals for trade union activities; arrest and detention of trade union leaders who had exercised legitimate trade union activities (trade union workshop; demonstration); dismissal of 56 workers who had participated in a strike at the Netone company; intimidation and arrest of striking workers and trade union leaders during a major strike in the telecommunications sector at the Zimbabwe Post (Zimpost) and TelOne; suspension of all striking workers at the TelOne company; expulsion of a fact-finding mission of the Congress of South African Trade Unions (COSATU) and refusal to accept a second mission into the country; searching and ransacking the home of the Deputy Secretary-General of the Zimbabwe Congress of Trade Unions (ZCTU). The Government replies that most of these disputes are pending before the courts, and that many of the events which gave rise to arrests, as well as the two COSATU missions, were politically motivated rather than legitimate trade union activities.
2. 1660. The Committee will deal with the information provided by the Government concerning the cases of Messrs. Matombo, Nkala, Chizura and Munandi, in its next examination of Case No. 2328.
3. 1661. As regards the arrest of four ZCTU trade union leaders on 5 August 2004 (Ms. Lucia Matibenga, Mr. W. Chibebe, Mr. Sam Machinda and Mr. Timothy Kondo) the Committee notes that, according to the complainant organization, all these leaders were arrested for attending a ZCTU workshop held in Gweru to discuss various subjects: the high level of taxation; the Tripartite Negotiating Forum; social security and the National Social Security Authority (NSSA); AIDS; and feedback on the June 2004 ILO Conference. The Government replies that the meeting in question had nothing to do with legitimate trade union business, and reiterates its previous position that there are individuals in the ZCTU who use the banner of trade unionism to pursue their own goals and agitate on the political front on behalf of the Movement for Democratic Change (MDC), an oppositional party. Noting that most of the issues discussed at the Gweru ZCTU workshop did concern trade union matters, and noting further that the initial charges (organizing the meeting without police clearance) were subsequently changed (to “conducting a riot, causing disorder and intolerance”) and ultimately dropped, the Committee recalls once again, as it did at its March 2005 meeting in connection with the present case [see 336th report, para. 910] 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; workers’ organizations should therefore be able to voice their opinions on political issues in the broad sense of the term. 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 [Digest of decisions and principles of the Freedom of Association Committee, 1996, 4th edition, paras. 454-455]. The Committee requests the Government to ensure that these principles are complied with in future.
4. 1662. The Committee further notes that the Government has not directly replied to the allegations that charges were brought against Mr. Choko and eight other trade unionists on 18 November 2003 in Bulawayo, and that within the context of a massive strike in the post and telecommunications sector, Mr. Sikosana (Provincial Vice-Chairman) was arrested in Bulawayo on 11 October 2004, and six other union members were arrested in Gweru, all of whom were released only after having paid a fine. In addition, no reply was received from the Government concerning the allegations that Messrs. Mparutsa, Mereki and Kaditera were arrested in Mutare, and that Messrs. Marowa, Mhike, Nhanhanga and Chiponda were arrested on 6 October 2004, and later released without charges. The Committee requests the Government to provide detailed information on the reasons for the arrests of the abovementioned individuals and the charges ultimately brought against them, and to provide a copy of the court judgement in relation to the participation of Mr. Choko and eight other trade unionists in a demonstration on 18 November 2003.
5. 1663. While noting the Government’s indication that it would need more information in order to reply to the allegations of arrest of Messrs. Khumalo, Ngulube and Munumo on 11 October 2004 for participation in a demonstration, also in Bulawayo, the Committee trusts that, given that the allegations refer to the name, date, city and context, leading to these arrests, the Government will be in a position to inquire into the reasons for these arrests, whether the workers in question are still being detained, and whether any charges have been brought against them. The Committee requests the Government to keep it informed in this respect.
6. 1664. On a more general note, the Committee recalls once again that the arrest, even if only briefly, of trade union leaders and trade unionists for exercising legitimate trade union activities constitutes a violation of the principles of freedom of association [Digest, op. cit., para. 70] and that 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 [Digest, op. cit., para. 71]. The Committee therefore once again urges the Government to abstain in future from resorting to measures of arrest and detention of trade union leaders or members for reasons connected to their trade union activities.
7. 1665. As regards the situation of the 56 workers dismissed by the Netone company for taking part in strike action following management’s refusal to negotiate, the Committee notes that the dispute is currently pending before the Labour Court. Recalling 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 [Digest, op. cit., para. 475], the Committee requests the Government to keep it informed of developments, and to provide it with any judgement handed down in this respect.
8. 1666. The Committee requests the Government to keep it informed of developments on the situation at Zimpost and at the TelOne company, including as regards the cases of workers who have been disciplined, suspended or dismissed, and to provide it with any judgement handed down in this respect by the competent jurisdiction.
9. 1667. As regards the COSATU missions, whilst taking note of the political qualification given by the Government to expel the first mission and to refuse allowing the second one into the country, the Committee notes the complainant’s explanations as to the context and purpose of these missions, which in its opinion fall within regular and legitimate trade union activities. Taking particularly into account the severe difficulties faced by the trade union movement in Zimbabwe, the Committee considers that it is a fully legitimate trade union activity for that trade union movement to seek advice and support from other well-established trade union movements in the region to assist in defending or developing the national trade union organizations, even when the trade union tendency does not correspond to the tendency or tendencies within the country, and that visits in this respect represent normal trade union activity, subject to provisions of national legislation with regard to the admission of foreigners; the corollary of that principle is that the formalities to which trade unionists and trade union leaders are subject in seeking entry to the territory of a State, or in attending to trade union business there, should be based on objective criteria and be free of anti-union discrimination. The Committee therefore requests the Government to allow in future such mutual support missions into the country, subjecting any approval to objective criteria only, without any anti-union discrimination.
10. 1668. As regards the related incidents involving Mr. Gwiyo, the Committee notes that the Government denies any link between the COSATU visit and the search and ransacking of Mr. Gwiyo’s house, and refers rather to his political activities. The complainant organization refers however to the role he played in the ZCTU group that had hosted the mission, which took place just a few days before, and to the fact that he was interrogated by the police about his role in inviting that mission. While noting that Mr. Gwiyo was not charged in this connection (although other charges were pressed and then withdrawn), the Committee recalls the principles set out in the paragraph above and requests the Government to ensure in future that national trade union leaders and members are not subjected to harassment and arrest for simply hosting an exchange with a neighbouring trade union.
11. 1669. The Committee requests the Government to provide its observations on the previous recommendations that remain pending, including as regards the cases of Mr. Takaona and Mr. Mangezi.
12. 1670. Before concluding, the Committee is bound to note with deep concern that the trade union situation in Zimbabwe has not evolved, and may even have worsened, since its last examination of the case, where it made the following comments [see 336th Report, para. 913]:
13. From a more general perspective, the Committee observes that some of the incidents alleged in the present case follow similar events: (a) 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]; (b) in December 2002, where it reiterated its call to the Government to refrain from interfering in 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]; and, (c) in October-November 2003, where it once again urged the Government not to resort to measures of arrest and detention of trade union leaders and members for reasons connected to their legitimate trade union activities [Case No. 2313, 334th Report, para. 1121].
14. That being so, the Committee must reiterate its deep concern with the extreme seriousness of the general trade union climate in Zimbabwe, and once again calls the Governing Body’s special attention to the situation.